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Op-Ed: Free Speech under the microscope with 'The Freedom To Offend' question

By Paul Wallis     Jun 12, 2008 in World
It’s an argument you could only have in a democracy. The US defence of free speech, as embodied in its unique First Amendment, is becoming progressively more divergent from the rest of the world. The issue is protecting the rights of offensive views.
International conventions have sprung up regarding hate speech, and the US, being constitutionally bound, hasn’t signed into any of them.
I’ve always admired the First Amendment, as an expression in itself, of perhaps the most difficult concept in human existence: the right to have your own views, without being disenfranchised.
Democracy embodies the right to disagree, whether anyone likes it or not. The First Amendment is one of the few solid legal objects in that principle. It was based on the beliefs of true libertarians, people whose ideas were created and developed in the most difficult circumstances.
America went way beyond France in its concept of Liberty, and the US Constitution is literally covered in concepts which were incredibly advanced for their time, and even now require a lot of interpretation and understanding.
Recently, however, The Right To Offend has been seen by some as taking liberties, rather than deserving entitlements to them.
The New York Times starts its piece with the case of a Canadian magazine on trial in Canada for its portrayal of Islam, contrasting it with the US First Amendment position:
…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.
The Maclean’s article, “The Future Belongs to Islam,” was an excerpt from a book by Mark Steyn called “America Alone” (Regnery, 2006). The title was fitting: The United States, in its treatment of hate speech, as in so many other areas of the law, takes a distinctive legal path.
“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 America, however, the fundamental principles of the First Amendment still have some adamant supporters. One of those principles is broadly based on the idea “If this gets banned, what do they ban next?” and “Do we want government to acquire the right to suppress free speech, even if it’s obnoxious?” perspective.
That’s actually a strong legal principle, related to the idea that if you give governments powers, you could have some real problems when they use them.
That was one of the bases of the origin of the First Amendment. It’s a limitation on government powers. It was intended to protect the political liberties of citizens. It’s done a pretty good job of it, too, overall.
The debate, however, is getting tense. Even some liberals aren’t too sure that hate speech deserves defence under the US Constitution. Given what’s been said about the US for most of the last decade, that’s hardly surprising.
“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.”
Professor 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. Mr. Lewis has been critical of efforts to use the law to limit hate speech.
But even Mr. 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 New York Times goes on to cite various cases and the contrast between Canada and America in their laws regarding hate speech. There’s also a rather dubious statement to the effect that US universities and employers aren’t subject to the First Amendment… Ah well… Even The New York Times might get something backwards, I guess.
The debate is based on what is now a given situation: A lot of the Western media has found time to publish Islamophobic materials, based on the idea that all Moslems must be terrorists.
This is apparently intended to appeal to the uneducated, and to people who are bigots whenever there’s a chance, on that most sacred of democratic principles, the right to sell media content to anyone dumb enough to buy it.
Free speech is one thing: willful disinformation is another.
Al Qaeda used exactly the same technique in 2001.
It dictated who were the enemy, and made itself the public face of Islam, whether other Moslems liked it or not. That’s been their message ever since.
So a collection of Western journalistic/editorial sheep played straight into their hands, reviling Islam, and in the process providing AQ with plenty of propaganda material.
If they ever wanted or needed an excuse for their own obscene perversion of Islam, (Which, incidentally, says “Live in peace with the people of the Book”, meaning Christians and Jews) all they have to do is pick up a newspaper, and some clown with a macro will be giving them all they need.
Or some truly tenth rate Danish cartoonist or Dutch MP making movies.
So what’s more offensive: The sheer stupidity of the hate speech, or the abuse of the principle of free speech?
The Right To Offend cuts both ways.
More about Free speech, Hate speech, First amendment