International Herald Tribune | June 11, 2008
By Adam Liptak

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.

"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.

"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.

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.

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.

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.

"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.

"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."