"Us v. Them": The Free Speech Debate In Context

Fresh from the trenches [re]debating the whole Ezra Levant/Human Rights Commissions issue at Lex's again, I came across this article, "Unlike Others, U.S. Defends Freedom to Offend in Speech" in the New York Times.

Putting aside the whole issue of where ** such complaints should be litigated, the article focuses on the issue of whether such complaints should be actionable at all. In so doing, it offers an interesting comparison between the Canadian and American approaches to "free speech":

In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence.

. . .

“In much of the developed world, one uses racial epithets at one’s legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk, and one urges discrimination against religious minorities under threat of fine or imprisonment,” Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, wrote in a recent essay called “The Exceptional First Amendment.”

“But in the United States,” Professor Schauer continued, “all such speech remains constitutionally protected.”

Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.

An interesting approach, no doubt about it. And it might help explain some of the hostile reactions I have come across in debating these issues with Americans. Apparently, in the United States (subject to a few limited exceptions: government may ban fighting words or threats and punishments may be enhanced for violent crimes prompted by racial hatred) the only justification for making incitement a criminal offense is the "likelihood of imminent violence", which standard sets a very high hurdle.

Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away. A fiery speech urging an angry mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article — or any publication — intended to stir up racial hatred surely does not.

However, some now question whether speech that "urges terrorist violence to an audience, some of whose members are ready to act on the urging,” is an imminent enough threat and one that should be sanctioned.

It's a good read, one that might help promote some understanding of the differences between the two countries on the larger issues. And one in which Mark Steyn, recently taken before the B.C. Human Rights Commission in connection with an excerpt from his book republished in MacLeans magazine weighs in:

Mr. Steyn, the author of the article, said the Canadian proceedings had illustrated some important distinctions. “The problem with so-called hate speech laws is that they’re not about facts,” he said in a telephone interview. “They’re about feelings.”

“What we’re learning here is really the bedrock difference between the United States and the countries that are in a broad sense its legal cousins,” Mr. Steyn added. “Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world.”

** Although Canadian law currently provides for "hate propaganda", "blasphemous libel" and "defamatory libel" to be prosecuted as criminal offences (anyone interested in torturing themselves can review the relevant Criminal Code excerpts) and 'hate speech' to be adjudicated by Human Rights Commissions, I, personally, feel that HRCs are not the proper forum for the civil adjudication of such claims and that such claims, civilly should be dealt with in the courts under the common law.