Hate speech
Yesterday’s NY Times had an article, prompted by a case in Canada, comparing our free speech constitutional guarantees with the more restricted laws of many other countries, including Canada and several European nations, where “hate speech” is considered and can be prosecuted as a crime. How hate-speech is constitutionally or legally defined is left very vague in the article, but examples are given:
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.
The article notes that some U.S. lawyers are beginning to question the nearly total freedom allowed under our Constitution; it cites only one example, however:
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.”
The Times article ends with this paragraph:
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,” Mr. [Mark] 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.”
Waldron is unusually perceptive about many matters. I suspect that he’s on to something here.
I saw the NY Times piece yesterday, thought it strove for balance and achieved pusillanimity.
Also read this piece yesterday about Canadian Human “Rights” Tribunals, brought my blood to a rolling boil:
http://www.realclearpolitics.com/articles/2008/06/deafening_silence.html
I read recently that these Canadian tribunals have NEVER ruled in favor of speech and against the supposedly insulted group–that alone is telling. We should all hope and pray that Waldron is NOT “on to something …” because if what the Canadians and Europeans do ever comes to the US (as some fear it already has in the form of ‘political correctness’, though not yet with law-enforcing tribunals), then where will people go to flee such things? We are the last bastion of free thought. Who will defend it if we do not?
I think there are already enough safeguards in First Amendment jurisprudence (e.g., the “imminent danger” rule) to deal legally with hate speech. The Neo-Nazi march through Skokie was repulsive IMO, but it also was the springboard for extensive discussion by people of good will in the “marketplace of ideas” about the Neo-Nazis and their empty message. They remain a fringe group, as do other organizations, that espouse such hate. In some respects, the First Amendment is a steam vent for such groups. Absent an opportunity to speak their minds, they might resort to violence (or more violence than some of them already practice). In addition, those of us not the targets of hate speech have the opportunity to express our solidarity with the victims and our disgust with what was said. That’s how most hate speech is defused.
Practically speaking, who decides what constitutes hate speech? There are of course words that most people will agree are deeply offensive, but offensive can be a slippery adjective to pin down? Will lists of consensus hate words have to be created? How is consensus reached? I’m not at all defending hate speech. I just think that the First Amendment is strong enough to handle the challenge of when it should be regulated.
This topic came up on an international discussion group I belong to that discusses censorship. I asked whether anyone had read “Mein Kampf” and felt that the book actually deters people from Nazism because it is poorly reasoned, poorly written, and self-aggrandizing.
One of the Dutch group members was surprised that people here had free access to the book, which is not available to anyone but scholars who must get government permission to read it.
One of the pitfalls of banning things is that people assume that have more persuasive power than they actually have.
In other free-speech news, a jury in California is being rounded up to look at pornography to test the boundaries of obscenity based on community standards. (Heard this on npr.org, where you can search for the story.) One commentator said that the nightmare in picking a jury is that you don’t know whether jurors have unspoken agendas–that they want to crack down on erotica in general or (worse) that they simply want to watch free hard core porn.
Don’t know about others, but it seems to me that trying to define obscenity is a bit of a losing battle. Rather than coming up with a list of verboten acts you can show (or simulate), I’d rather see the porn industry licensed and monitored in order to reduce exploitation of minors, illegal aliens, and animals.
God bless American on this one. To have a law like Canada only mean that one can pick and choose. Very difficult to define just what is what.
Of course the church does not know how to handle free speech. Archbishop Robinson has gotten the attention of the American bishops. Why don’t they learn that they have no clothes on. http://www.the-tidings.com/2008/061308/robinson.htm
We need our prophets. How the bishops must long for the hammer of the State. There is, of course, transparency, responsibility, good preaching, constant ministry that they can effectively counter with.
Or is this not a matter of free speech. Ask Boff, Haight, Curran, ……
Banning books? I am sure that those who favor that in this day and age would also look askance at the Catholic Church’s old Index of Forbidden Books.
It all depends on which side of the ideological divide one’s sympathies lie, I suppose.
Some hate speech is easy to pick off, like Bill’s example of the neo Nazis, or that Baptist group from Kansas that pickets deceased soldiers’ funerals and blames the deaths in the war on gays here.
I don’t think the Church is involved in hate speech, but it does like free speech suppression.
Then there’s the reactive problem of dealing with propaganda, with no factual basis, meant to demean or destroy. One can counter with facts, but “attacks” seem to take on a life of their own and libel actions, like all good civil actions, usually take mucho tiempo.
While we’re better off with first amendment, it doen;t mean we’ve no sticky issues to continue to grapple with.
I thought this was a significant point:
“Free speech matters because it works,” Mr. 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,’ ” Mr. Silverglate said. “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”
Silverglate seems to think that the extremes cancel themselves out; they are recognizable.
Here was the paragraph that stuck in my mind:
If truth is not a defense, then a government could suppress facts as hate speech. I am wholeheartedly in favor of sticking with the First Amendment. There are other ways to counter hate speech. And we shouldn’t sneer too much at political correctness, since that’s one of them.
I think they oughta’ take all those authors of “hate speech” laws and line ‘em up and shoot ‘em — with **************
(I s’ppose ah ain’t gonna make no more trips to Canada :)
Then there is animal activist Brigette Bardotte’s massive fine for writing nasty opinions of Islam in France. It of course was ruled “hate speech”.
Behind some of the arguments to restrict speech one can hear echoes, sometimes not so faint, of the adage “Error has no rights.” I am interested in the history of this maxim. It is often described as medieval, and I have even seen it referred to as a principle of Augustine. But I don’t believe he ever used this axiom, and I have not discovered it among medieval canonists. When I read Isaiah Berlin’s famous essay on two notions of liberty, I saw it appealed to, in so many words, by Enlightenment advisers to enlightened kings in the 18th century as a way of responding to the protests and objections of those opposed to what the Enlightened knew to be for the rational benefit of the populace: Error has no rights. If this is the case, then to have Catholic theologians and canonists appeal to it in defense of refusals of religious freedom to false religions would represent yet another case in which the Church borrowed more than it knew from its opponents, in this case the philosophes.
Can any lawyers or historians enlighten us on the history of the axiom?
Freedom of speech needs to be understood in a proper context. As the famous quote by Kierkegaard states, ‘People demand freedom of speech as a compensation for the freedom of thought which they seldom use.’
Waldron doesn’t need me to defend him. And I’m not smart enough to make a specific proposal about dealing legally with hate speech. But neither do I take the First Amendment to be Holy Writ. It is, I agree, a time-tested good way to deal with lots of speech issues in our country. But it does not follow that we should not reflect critically on it.
Consider the following:
1. Under the prevailing Supreme Court interpretation, The First Amendment makes it very hard to regulate money spent in a political campaign. No other major Western democracy has so much money thrown around in political campaigns with so few restrictions.
2. Given the available money, there is reason to fear that some candidates or their supporters might engage in a campaign to demonize some segment of the population (e.g., Muslims, Latinos, etc.) for political advantage. They might time their campaigns in such a way that there would be little time for their opponents to refute them.
3. One consequence might well be that they intimidated the targeted segment into abstaining from voting.
What would be so bad about having legal provisions that allowed the targeted groups to seek injunctive relief from the courts?
Having fair elections fought with at least minimal mutual respect is surely in the national interest. Why would a restriction, at least for the duration of the campaign, on this sort of hate speech be so bad?
I grant, of course, that framing the proper legal restrictions would be a tough job. But so are many other jobs that we expect competent people to take on.
My broader point is that however wise a legal provision, constitutional or otherwise, has proven to be, therre is no guarantee that in a changing world it will always be wise to preserve it. Reconsiderations by qualified people are always in order.
By the way, I think the same thing holds for ecclesiastical disciplinary issues.
Joe and I have debated this issue many times at the commonweal@yahoo.com discussion group over the years.
He has influenced me somewhat, however, I wonder why it always seems to be the extreme right religious views that come under attack at Human Rights Tribunals.
It is particularly related to the issue of gay rights/homosexuality as was the Alberta case that caused this affair in the first place.
Gays are just not going to take it anymore and interestingly, whether religions including the Catholic Church like it or not the State is not about to role back the laws regarding Same-sex marriage.
Surveys show a majority of citizens support the rights of gays & lesbians, including a majority of Catholics.
If you read some of the stuff written by so called Christians and a law existed to cause them to write more cautiously wouldn’t you use it.
One final point, I am disappointed in the holier then thou superiority attitude expressed in some of the above comments.
You have different laws and different standards and you have paid a huge price for it. Many people especially blacks have paid for it with their lives. Hate speak builds hateful actions. Just recognize free speech does has a price which many refuse to recognize.
Actually Canada has a nice balance between Europe and the USA. It is one I can live with. And we will likely find a better balance in the use of HRCs once the paranoia over gay rights settles down.
If I remember my history lessons correctly, freedom of speech was intended as a guarantor of freedom of conscience and of the right to defend oneself from unjust accusers. However repulsive someone else’s opinions might be, to deny that person the right to speak will inevitably result in someone else’s preventing us from speaking.
We don’t need less free speech — we need more. We need informed citizens exercising this right both in public and in private — for instance, by calling down those who use hate speech. Mores often have a power that law does not. Unfortunately, in the U.S. one social restriction is that it is impolite to disagree strongly with others, to tell them that they are mistaken. We really have to get past that. No, it’s not pleasant. But maintaining our freedoms often isn’t.
Ann, you touch on a point which I have been thinking about since I made the above post. There are many other ways to such down free speech other than HR commissions/tribunals.
A good example is the social ostracism and vilification George Bush and his cronies used to shut down discussion of the Iraq war. Social conservatives did it to shut down “liberals”. Police did it at the barrel of a gun at Kent State. Loonies did it when they shot Martin Luther King Jr. and Bobby Kennedy.
Try seeing how much free speech you have when you next go through security at any airport in North America and want to complain about the way you are treated as you go through. So much for what is written on a piece of paper.
As for the Church, just try being a religious and even questioning a review of Church practice cum doctrine as Australian Bishop Robinson did after reviewing sexual abuse by priests in that country.
Just think about what the so called Cardinal Newman Society is trying to do to freedom of speech on our Catholic University Campuses of all places. Even though they are private institutions they likely get government research grants. At what point should the constitution trump the Church’s or their lay acolytes efforts to shut down debate on any topic religious or otherwise at a Catholic university?
Free speech is I agree a delicate right in need of constant surveillance but it is not always as free as it may appear even in the U.S.A.
“You have different laws and different standards and you have paid a huge price for it. Many people especially blacks have paid for it with their lives. Hate speak builds hateful actions. Just recognize free speech does has a price which many refuse to recognize.”
John –
Indeed, and many people have also died to protect free speech against the likes of the Nazis, who tried to eradicate a whole people. Democracy is no guarantee of justice. The existence of law is no guarantee that all will obey the laws. If I’m not mistaken the word “justice” does not appear in that “piece of paper” you allude to. James Madison was under no illusions about the perfectibility of man. The Contitution is not an attempt to make all men virtuous. It is an attempt to provide the *most likely means* to protect the rights that are conditions of a civil society. Only virtuous people will guarantee a virtuous society.
As to the Church, what in your opinion would be better — that in there Church there were free speech or not?
Ann,
I agree with you fully on your first paragraph.
With respect to the Church, absolutely yes. I think Aquinas and Newman and many others would agree. Only with full and open debate can we as a people of God grow in our understanding of His/Her mystery.
Fall backs on Authority with a capital A only produce a boomerang effect. Words such a “authentic” “true” and “real” close off intellectual development. Actions such as “excommunication” and withholding of communion are coercive techniques to force a conformity of ideas. They all have their secular equivalents.
“:Fall backs on Authority with a capital A only produce a boomerang effect. Words such a “authentic” “true” and “real” close off intellectual development.”
John –
If all opinions were equally good, then why not go to witches and shamans and quacks for medical treatment?
It’s one thing to say that all contingent knowledge is subject to revision, another to say there is *no* truth, no knowledge of the world we have reason to think exists and is at least paratially knowable. Yes, we all construct our little virtual worlds and, for convenience sake, call it *the* world. But there is justification for doing so, and the evidence is overwhelming that at least parts of the real world are inescapable. The world has a way of beating us over the head when we deny it’s there.
But I grant you there are severe problems getting at even some of the truth of the mysteries of the Faith. That’s why I think we — the whole Church, not just the theologians — need to consider trying to form a theological epistemology. Just what can we know? How can’t we get at it? How does language deform our understanding of the Word? But I’m not optimistic we’ll have any such discipline any time soon. The Vatican culture has to first admit that it needs an agreed upon (or mostly agreed upon) epistemology. And first and foremost it has to admit that it’s contradictions through the ages can’t be swept under the rug by claiming that the development of theology is a matter of expressing old thoughts in new language. But that too is another thread, or another library.
Ann,
I do not think you are wrong on either count. I am not advocating an all opinions on moral issues are equally good approach. There is a large body of moral behaviour to which all peoples irrespective of faith or no faith do subscribe. It is similar with some level of authority. Note the absence of the capital.
One of the problems within both the Church and our societies is where, when and how to recognize that when we use our freedom of speech we can do so in a way that is very hurtful and disrespectful of others. America with its more open acceptance of what others might term hate speech is less sensitive to this concomitant social and moral good within which a society must survive. Given the much longer history of European inter-tribal and inter-religious warfare it is only logical that they have developed a greater appreciation of the other side of the coin.
Canada’s dual nationhood has probably had a lot to do with our need to be sensitive to the other in order to survive even if in “two solitudes”.
The thought that crosses my mind when I read (in this case) some American’s praising the American version of their “First Amendment” rights as superior to all others I get the feeling that there is an over compensation going on because they know in their heart that it has been and continues to be abused to the unfair detriment of others. In America’s case it is simply perceived as the cost of freedom of speech. Other nations for quite legitimate reasons may perceive it differently and they should not be subjected to American ridicule or arrogance for doing so.
The blogspere is one such place regarding the Stephen Boissoin case. It has generated an unbelievable amount of vitriol and chest thumping superiority to Canada.
It’s worth noticing that the reasons for protecting “free speech” in a political society and for encouraging it in the Church are not the same. Different rationales. Different reasonable restrictions. And of course, different sanctions.
Not being a legal expert, I hardly feel qualified to comment on this, but I’m wondering if framing this as a question of “free speech” is really the right way to approach it. According to my understanding (learned, admittedly, many years ago in middle school), the purpose of the free-speech protection in the US Constitution is to protect *political* speech from untoward *government* supression. Yet these Canadian commissions seem to have a much broader scope: they seem to accept cases involving disputes between private parties – cases that, in the US, would be steered to civil courts (and even then perhaps only for slander, libel, defamation and what not?)
I believe these Canadian tribunals make Americans nervous for similar reasons that Independent Investigators make us nervous, or … whatever the term would be for the legal process favored by the Bush Administration for processing alleged terrorists at Guantanamo (not quite the same as a standard military tribunal, I think?) These are all examples of proceedings that, while vested with authority, seem to be unconnected to the mainstream legal system, with rights of the accused severely restricted, limited or no avenue of appeals, etc. I thought “Kafkaesque” was apt.
“If you read some of the stuff written by so called Christians and a law existed to cause them to write more cautiously wouldn’t you use it.”
No.
I would try to adduce reasons why the speaker is wrong, and utilize the public media at my disposal to challenge his hateful speech.
But here is a variation on your question:
If, on a particular political or social issue, there exist implacable foes to your position on the issue, and your foes occasionally say controversial things, and HRTs could be used as a legal weapon to silence your foes, would you be able to resist the temptation to use the weapon?
Such things happen in the US, too, of course. Joe Scheidler, a prominent pro-life activist, was convicted under RICO statutes – laws originally intended to be used to combat organized crime. The legal theory for Scheidler’s prosecutors is that pro-life organizations are the equivalent of organized crime enterprises.