Via change.org: Free Speech Run Amok?
Last week, tax day rallies were staged across the country by the Tea Party movement. At these rallies, tea-partiers carried a wide range of signs, including some (like the one in the photo to the left) equating Obama with Hitler.
What do these two events have in common, other than their anti-government, right-wing message?
Both are manifestations of our broad First Amendment regime, which protects a very wide range of speech. Compared to other liberal democracies, the level of protection given to what is known as “hate speech” is very high in the United States. The Constitution, as interpreted by the Supreme Court, mandates that free speech and freedom of the press must be protected except when advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. In effect, this permits manifestations of hatred directed at particular groups or individuals, but draws the line (barely) on this side of explicit directions to attack.
Sounds reasonable enough. But a strong case can be made in support of efforts to criminalize hate speech. There is good reason to believe, for instance, that certain forms of advocacy, even if they do not directly call for imminent violence, may foster extremist thought and action. Former President Bill Clinton, for instance, draws a connection in today’s New York Times between particular extreme viewpoints and the terrorist Oklahoma City bombings.
While Clinton does not advocate bans on hate speech, he does urge civility and self-restraint. “There is a big difference between criticizing a policy or a politician,” Clinton writes, “and demonizing the government that guarantees our freedoms and the public servants who enforce our laws.”
The appeal to self-restraint is wise and should be heeded. But is it enough? Is there reason to question the U.S. model of virtually unlimited speech? The answer, according to human rights instruments and many of our fellow democracies, is yes.
The International Covenant on Civil and Political Rights (ICCPR) provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” In similar language, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires states to make punishable “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination.” (While the U.S. is a party to the ICCPR and CERD, its ratification is subject to reservations, understandings and declarations that assert the limits of U.S. obligations are those required by the U.S. constitution.)
European countries and our neighbor to the north take this quite seriously. The Danish penal code provides that any person who publicly makes a statement threatening, insulting or degrading a group of persons based on their race, color, beliefs, or national origin is liable to a fine or a maximum two-year prison sentence. In the Netherlands last year, outspoken member of parliament Geert Wilders, creator of the anti-Islamic film Fitna, was prosecuted by the Amsterdam appeals court for “inciting hatred and discrimination, based on comments by him in various media on Muslims and their beliefs” after comparing the religion to Nazism.
In France, the “Gayssot Act,” passed in 1990, makes it an offense to contest the existence of crimes against humanity as defined in the London Charter, thus criminalizing Holocaust denial. In South Africa too, the right to freedom of expression that is entrenched in the Bill of Rights does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Closer still, in Canada, the debate over hate speech boiled over last month when controversial commentator Ann Coulter canceled a speech she planned to give at the University of Ottawa after receiving a letter from the university’s provost warning her about the limits of free speech in the country.
Would some of the fringe-messages advocated during Tea Party rallies rise to the level of hate speech that Canada was worried about from Ann Coulter? Probably. What if pro-militia forces were to gather in Paris, Copenhagen, or Cape Town? Is proscribing such actions a good idea?
If nothing else, that’s a question that’s worth asking.
(Matthew Parker and Sandra Ray researched and drafted parts of this post.)
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