Philosophy

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A DV E R T I S E M E N T

By Adam Liptak

June 11, 2008

VANCOUVER, British Columbia — A couple of years ago, a

Canadian magazine published an article arguing that the rise of

Islam threatened Western values. The article's tone was mocking

and biting, but it said nothing that conservative magazines and

blogs in the United States did not say every day without fear of

legal reprisal.

Things are different here. The magazine is on trial.

Under Canadian law, there is a serious argument that the article

contained hate speech and that its publisher, Maclean's magazine,

the nation's leading newsweekly, should be forbidden from saying

similar things, forced to publish a rebuttal and made to compensate

Muslims for injuring their "dignity, feelings and self respect."

The British Columbia Human Rights Tribunal, which held five days

of hearings on those questions in Vancouver last week, will soon

rule on whether Maclean's violated a provincial hate speech law by

stirring up animosity toward Muslims.

As spectators lined up for the afternoon session last week, an

argument broke out.

"It's hate speech!" yelled one man.

A DV E R T I S E M E N T

"It's free speech!" yelled another.

In the United States, that debate has been settled. Under the First

Amendment, newspapers and magazines can say what they like

about minority groups and religions - even false, provocative or

hateful things - without legal consequence.

The Maclean's article, "The Future Belongs to Islam," was an

excerpt from a book by Mark Steyn called "America Alone." The

title was fitting: The United States, in its treatment of hate speech,

as in so many areas of the law, takes a distinctive legal path.

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"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," Schauer continued, "all such speech

remains constitutionally protected."

Canada, Britain, 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.

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A DV E R T I S E M E N T

Last week, the actress Brigitte Bardot, an animal rights activist,

was fined €15,000, or $23,000, in France for provoking racial hatred

by criticizing a Muslim ceremony involving the slaughter of sheep.

By contrast, U.S. courts would not stop the American Nazi Party

from marching in Skokie, Illinois, in 1977, though the march was

deeply distressing to the many Holocaust survivors there.

Six years later, a state court judge in New York dismissed a libel

case brought by several Puerto Rican groups against a business

executive who had called food stamps "basically a Puerto Rican

program." The First Amendment, Justice Eve Preminger wrote,

does not allow even false statements about racial or ethnic groups

to be suppressed or punished just because they may increase "the

general level of prejudice."

Some prominent legal scholars say the United States should

reconsider its position on hate speech.

"It is not clear to me that the Europeans are mistaken," Jeremy

Waldron, a legal philosopher, wrote in The New York Review of

Books last month, "when they say that a liberal democracy must

take affirmative responsibility for protecting the atmosphere of

mutual respect against certain forms of vicious attack."

Waldron was reviewing "Freedom for the Thought That We Hate:

A Biography of the First Amendment" by Anthony Lewis, the

former New York Times columnist. Lewis has been critical of

attempts to use the law to limit hate speech.

But even Lewis, a liberal, wrote in his book that he was inclined to

relax some of the most stringent First Amendment protections "in

an age when words have inspired acts of mass murder and

terrorism." In particular, he called for a re-examination of the

Supreme Court's insistence that there is only one justification for

making incitement a criminal offense: the likelihood of imminent

violence.

The imminence requirement sets a 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

racist mob immediately to assault a black man in its midst

probably qualifies as incitement under the First Amendment. A

magazine article - or any publication - aimed at stirring up racial

hatred surely does not.

A DV E R T I S E M E N T

Lewis wrote that there is "genuinely dangerous" speech that does

not meet the imminence requirement. "I think we should be able to

punish speech that urges terrorist violence to an audience, some of

whose members are ready to act on the urging," Lewis wrote.

"That is imminence enough."

Harvey Silverglate, a civil liberties lawyer in Boston, disagreed.

"When times are tough," he said, "there seems to be a tendency to

say there is too much freedom."

"Free speech matters because it works," Silverglate continued.

Scrutiny and debate are more effective ways of combating hate

speech than censorship, he said, and all the more so in the post-

Sept. 11 era.

"The world didn't suffer because too many people read 'Mein

Kampf,"' Silverglate said. "Sending Hitler on a speaking tour of the

United States would have been quite a good idea."

Silverglate seemed to be echoing the words of Justice Oliver

Wendell Holmes, whose 1919 dissent in Abrams v. United States

eventually formed the basis for modern First Amendment law.

"The best test of truth is the power of the thought to get itself

accepted in the competition of the market," Holmes wrote. "I think

that we should be eternally vigilant," he added, "against attempts

to check the expression of opinions that we loathe and believe to be

fraught with death."

The First Amendment is not, of course, absolute. The Supreme

Court has said that the government may ban fighting words or

threats. Punishments may be enhanced for violent crimes

prompted by race hate. And private institutions, including

universities and employers, are not subject to the First

Amendment, which restricts only government activities.

A DV E R T I S E M E N T

But merely saying hateful things about minority groups, even with

the intent to cause their members distress and to generate

contempt and loathing, is protected by the First Amendment.

In 1969, for instance, the Supreme Court unanimously overturned

the conviction of a leader of a Ku Klux Klan group under an Ohio

statute that banned the advocacy of terrorism. The Klan leader,

Clarence Brandenburg, had urged his followers at a rally to "send

the Jews back to Israel," to "bury" blacks, though he did not call

them that, and to consider "revengeance" against politicians and

judges who were unsympathetic to whites.

Only Klan members and journalists were present. Because

Brandenburg's words fell short of calling for immediate violence in

a setting where such violence was likely, the Supreme Court ruled

that he could not be prosecuted for incitement.

In his opening statement in the Canadian magazine case, a lawyer

representing the Muslim plaintiffs aggrieved by the Maclean's

article pleaded with a three-member panel of the tribunal to

declare that the article subjected his clients to "hatred and

ridicule" and to force the magazine to publish a response.

"You are the only thing between racist, hateful, contemptuous

Islamophobic and irresponsible journalism," the lawyer, Faisal

Joseph, told the tribunal, "and law-abiding Canadian citizens."

In response, a lawyer for Maclean's all but called the proceeding a

sham.

"Innocent intent is not a defense," the lawyer, Roger McConchie,

said, in a bitter criticism of the British Columbia hate speech law.

"Nor is truth. Nor is fair comment on true facts. Publication in the

public interest and for the public benefit is not a defense. Opinion

expressed in good faith is not a defense. Responsible journalism is

not a defense."

Jason Gratl, a lawyer for the British Columbia Civil Liberties

Association, which has intervened in the case, was measured in his

criticism of the law forbidding hate speech.

A DV E R T I S E M E N T

"Canadians do not have a cast-iron stomach for offensive speech,"

Gratl said in a telephone interview. "We don't subscribe to a

marketplace of ideas. Americans as a whole are more tough-

minded and more prepared for verbal combat."

Many foreign courts have respectfully considered the U.S.

approach - and then rejected it.

A 1990 decision from the Canadian Supreme Court, for instance,

upheld the criminal conviction of James Keegstra for "unlawfully

promoting hatred against an identifiable group by communicating

anti-Semitic statements." Keegstra, a teacher, had told his students

that Jews are "money loving," "power hungry" and "treacherous."

Writing for the majority, Chief Justice Robert Dickson said there

was an issue "crucial to the disposition of this appeal: the

relationship between Canadian and American approaches to the

constitutional protection of free expression, most notably in the

realm of hate propaganda."

Dickson said, "There is much to be learned from First Amendment

jurisprudence." But he concluded that "the international

commitment to eradicate hate propaganda and, most importantly,

the special role given equality and multiculturalism in the

Canadian Constitution necessitate a departure from the view,

reasonably prevalent in America at present, that the suppression of

hate propaganda is incompatible with the guarantee of free

expression."

The distinctive U.S. approach to free speech, legal scholars say, has

many causes. It is partly rooted in an individualistic view of the

world. Fear of allowing the government to decide what speech is

acceptable plays a role. So does history.

"It would be really hard to criticize Israel, Austria, Germany and

South Africa, given their histories," for laws banning hate speech,

said Schauer, the professor at Harvard, in an interview.

In Canada, however, the laws seem to stem from a desire to

promote societal harmony. Three time zones east of British

Columbia, the Ontario Human Rights Commission - while declining

to hear a separate case against Maclean's - nonetheless condemned

the article.

A DV E R T I S E M E N T

"In Canada, the right to freedom of expression is not absolute, nor

should it be," the commission's statement said. "By portraying

Muslims as all sharing the same negative characteristics, including

being a threat to 'the West,' this explicit expression of

Islamophobia further perpetuates and promotes prejudice toward

Muslims and others."

British Columbia human rights law, unlike that in Ontario, does

appear to allow claims based on statements published in

magazines.

Steyn, the author of the Maclean's article, said the court

proceeding 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," 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."

A DV E R T I S E M E N T

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