Freedom to Offend an American Exceptionalism
Adam Liptak reminds us that free speech rights are much more extensive in the United States than in most of the developed world. He cites the ongoing suit against Canada’s MacLean’s magazine and the numerous judgments against Brigitte Bardot in France, both for speech that offended Muslims.
“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.
In the United States, even actual calls for violence, such as a Klan meeting saying that blacks should be exterminated or an imam calling for jihad against Western infidels, are considered protective speech unless there is a call for imminent violence or there’s a criminal conspiracy to specific future violence.
In Canada — a very free, civilized society — things are much different.
“Innocent intent is not a defense,” [the lawyer for Maclean’s, Roger D.] Mr. McConchie said in a bitter criticism of the British Columbia law on hate speech. “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.”
I’m not absolutely sure that the imminence test set forth by the Supreme Court in Brandenburg is the right place to draw the line. But, certainly, the Canadians and others have erred way too far on the side of comity over freedom.