The eroding freedom to offend, part I

2a cbldf first amendment imageMost Americans probably assume that the First Amendment has locked in solid free speech and press rights for all eternity, but that has not always been the case nor may it be the case in the future. One of the most important under covered stories received some much-needed attention Thursday in The New York Times: the erosion of freedom of speech and the press around the world. It is a very good development that the NYT did a news story on this subject. Spouting off opinions on how the world should be on the op-ed page is one thing, but it's another matter to have a straightforward news account on the state of free speech in the United States and other parts of Western society:

"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.

Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.

By contrast, American courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply distressing to the many Holocaust survivors there.

NYT reporter Adam Liptak gets credit just for giving the newspaper's readers coverage of this story from an objective viewpoint. Too often key stories from the NYT are bumped to the editorial page.

There is so much that could be said, and hopefully other mainstream journalists and even the partisan press will pick up this story. This is an issue that could impact conservatives and liberals, traditional journalists and <a href="http://www.buzzmachine.com/2008/06/12/the-internet-is-the-first-amendment. Hopefully this will be just the first in a series of stories from several news organizations on the importance of strong free press laws. If future federal judges are not asked about this subject at confirmation hearings, news organizations should highlight that fact.

The story leads off with the high-profile example of free speech under attack in Canada where a group of Muslim students have sued a magazine under their country's Human Rights Act. Here's what one of the students told National Public Radio's On the Media in April (More here from National Review's Mark Hemmingway:

BOB GARFIELD: Before you filed your complaint, you tried to persuade Maclean's to let you rebut the Mark Steyn piece. Tell me how that played out.

NASEEM MITHOOWANI: Before we actually met with Maclean's, we wanted to do some research into the editorial content of Maclean's Magazine to see if this was essentially one article or one in a series of many.

What we found was within two years Maclean's published 19 very lengthy articles, all which in some way, shape or form alleged that Muslims are to be viewed as the enemy.

We felt that it was time for the Muslim population to play a part in the discussion about Islam and Muslims that Maclean's had started. We therefore went to Maclean's editors. We asked that a mutually acceptable author -- so not us, because we're not writers, but somebody that we could both agree upon -- would be allowed to author a response to the Steyn article.

We were told that Maclean's would rather go bankrupt than allow for any response. And that's what really spurred the human rights complaint.

For the rest of the story, see here what the magazine's editor-in-chief had to say:

Maclean's declined an interview, but Editor-in-Chief Kenneth Whyte made this statement last December, quote: "The student lawyers in question came to us five months after the story ran. They asked for an opportunity to respond. We said that we had already run many responses to the article in our letters section but that we would consider a reasonable request.

They wanted a five-page article written by an author of their choice to run without any editing by us except for spelling and grammar. They also wanted to place their response on the cover and to art-direct it themselves. We told them we didn't consider that a reasonable request for response.

When they insisted, I told them I would rather go bankrupt than let someone from outside of our operations dictate the content of the magazine. I still feel that way."

Unfortunately, the NYT article failed to show the true horror that this type of legal regime could place on news organizations. The idea of someone or a group having the ability to force a magazine or news organization to publish anything without substantive editing authority sends shivers up my spine.

First Amendment WherePut it simply, if a magazine runs articles that someone finds offensive, the publication's pages could be held hostage or the editors and publishers subject to expensive lawsuits and damage awards. I wonder how many editors and publishers out there would rather go bankrupt than plead guilty and allow 5-page, unedited rebuttals printed in their magazines.

A big question I have is why two of the main forces behind this shift in the law are members of a major world religion, Islam, and liberal thinkers:

"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 religious component of this story is tricky because it involves a religion, Islam, that few American journalists have been able to cover with the subtleness necessary to properly convey its beliefs, customs and traditions. The coverage of the Danish Cartoon controversy comes to mind. Understanding Islamic blasphemy laws and how courts or commissions may or may not apply them outside Islamic legal jurisdictions is key to understanding how religion plays into this story.

A free press has developed primarily in the West, but that development is relatively new and incomplete. Journalists should also not forget the United States' own history of repressing free speech and the press. There are Britain's ancient blasphemy law, which remain on the books today.

Even Thomas Jefferson was known, once he became president, to engage in the repression of the press when it was in his favor to do so. Most significantly though, the nasty history of the Alien and Sedition Acts should remind all journalists that even in the United States at one point expressing one's opinion could result in jail time.

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