Hate speech vs. Free speech

A legal judgment recently in Alberta, Canada along with the publication of “Freedom for the Thought that We Hate: A Biography of the First Amendment” by Anthony Lewis, are stirring up discussion of the future of the First Amendment here in the U.S.  U.S. law protects all speech, even knowlingly false, unless it is likely to incite imminent violence.

Stephen Boisson, a Christian from the Canadian midwest, has published anti-gay slurs via online media and letters to a local paper.  He was taken to court under Canadian human rights law. From the Sault Star, ON:

A former pastor will appeal a human rights ruling that orders an apology and the payment of thousands of dollars in fines for an anti-gay letter published in a central Alberta newspaper.

The Alberta Human Rights Commission issued a written order on May 30 stating that Stephen Boissoin and the Concerned Christian Coalition must pay former Red Deer school teacher Darren Lund $5,000 in damages.

Boissoin’s letter to the editor was published in the June 17, 2002, edition of the Red Deer Advocate. In it, he compared homosexuals to pedophiles and drug dealers.

“We will be filing our appeal this month and then it will be heard before a Court of Queen’s Bench judge sometime over the next 12 months,” said Boissoin’s lawyer, Gerald Chipeur.

Chipeur said Boissoin will appeal both the commission’s ruling last November that the letter violated human rights law, and its most recent order which stipulates restitution.

Lund filed a complaint with the commission, arguing that Boissoin’s letter represented a hate crime after a gay teen was attacked in Red Deer shortly after it was published.

Last November, the commission ruled in favour of Lund, saying Boissoin and the coalition violated human rights law because the letter likely exposed gays to hatred and contempt.

“I think the ruling seems quite fair to me,” said Lund, who now lives in Calgary. “I just hope there will be some educational value to the community — that we can develop a society where everybody enjoys the same freedoms.”

Boissoin, who was the executive director of the Christian Coalition at the time the letter was published, has a web-site that discusses a “gay agenda” in Canadian schools.

The May 30 order states that Boissoin and the coalition must stop publishing in all forms of media any “disparaging remarks” about homosexuals.

Similar remarks cannot be made against Lund and his witnesses, and another $2,000 must be paid to Janelle Dodd, one of Lund’s witnesses who spoke at an earlier commission hearing.

The New York Times reporter Adam Liptak further reports that most developed countries, other than the U.S., have laws regulating hate speech – including bans on holocaust denial in Canada, Germany and France. From that report:

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.”

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 attempts 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 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.

Any such moves would be a dramatic and controversial departure for the U.S. Not liklely to succeeed – seeing as any change would require amending the First Amendment. And given the examples cited in Liptak’s article such as the suit against MacLean’s and Bardot, it’s far from certain in my mind whether such change would advance rights for minorities in the long term, or present instead new weapons against persuasive speech.


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