Other Western nations do not have our own First Amendment protections enshrined in law. For example,
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.
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. (Source.)
If you're like me, you'll react in disgust (mild or otherwise) at these laws, and to what was done to Bardot. A $23K fine because you criticize a religion's ceremony? Such penalties for the expression of a thought, however odious, are odious in themselves. But beware those in law who feel the United States should emulate Europe and other countries that penalize "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.
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."
Imagine that -- a couple prominent liberals wanting to "relax" First Amendment protections because some speech may be "genuinely dangerous" even if there is no "imminence" behind it. (I wonder if these two liberals, among others, would criticize yesterday's Supreme Court ruling which "relaxed" the standard by which suspected terrorists can be detained.) Also, consider the example used by Lewis: A "fiery speech urging an angry racist mob immediately to assault a black man." This is certainly an "incitement" under current First Amendment interpretation; however, if we read Lewis correctly, he'd punish the writer of a magazine article if that same speech was printed. But just like "hate" crimes statutes, "hate" speech laws would likely be selectively applied -- that is, like Lewis's hypothetical, they would more likely be utilized against members of the majority under the guise of protecting the minority. Criticism of Islamic religious practices (like Bardot's), for example, would be more of a target than [radical] Islamic utterances desiring the destruction of Israel.
What is it about this liberal desire for the restriction of speech and expression? The answer is simple: Power. If you can restrict and punish expression which you do not like, you'll always get your way. Of course, the real danger of this view is that over time virtually anything can be labeled "hate" speech: Criticism of affirmative action? "Hate" against blacks and other minorities. Want stricter border control? "Hate" against Mexicans and Central Americans. Disagree with casino control by Native Americans? "Hate" against whatever Native tribe is involved. Similar speech by the noted groups above, however, would not (or rarely) be "hate" (of course it wouldn't be a perfectly symmetrical comparison ... for instance, a black group's criticism of white "power" in the workplace and a call for strict quotas on white hires wouldn't be "hate" whereas the white's criticism of affirmative action would be).
"Canadians do not have a cast-iron stomach for offensive speech," [lawyer for the British Columbia Civil Liberties Association Jason] 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."
How's that for some self-deprecation, eh? Canadians can't handle vigorous debate about various ideas ... for fear one might be offended. I can imagine an American and a Canadian hashing out political issues at, say, Niagara Falls, and suddenly the easily offended Canuck summons a nearby cop to issue a citation to the Yank for "hate" speech. Sheesh. Scarier still is Canadian Supreme Court Chief Justice Robert Dickson's philosophy on free speech:
"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."
Who, exactly, determines what any "hate propaganda" is? Why, the judiciary, of course. At least they'd be the final arbiters of such a determination. And that's the way they like it. They have the ultimate power. No one elected them; they're appointed by political cronies of the party in power.
Mark Steyn (see Colossus post about him with associated links here), who's currently at the center of a free speech controversy (and legal case) in Canada, sums up the whole imbroglio nicely:
"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."
And it should stay that way.