Testing the Parameters of Free Speech in the First Amendment: A Review Essay

Abstract

Freedom for the Thought That We Hate: A Biography of the First Amendment Anthony Lewis (New York: Basic Books, 2007). Hardcover edition. 221 pages. $25.00. ISBN-13: 978-0-465-03917-3; ISBN-10: 0-465-03917-0.From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America Christopher M. Finan (Boston: Beacon Press, 2007). Hardcover edition. 348 pages. $25.95. ISBN-13: 978-0-8070-4428-5; ISBN-10: 0-8070-4428-8.Darwin Day in America: How Our Politics and Culture Have Been Dehumanized in the Name of Science John G. West (Wilmington, DE: ISI Books, 2007). Hardcover edition. 495 pages. $28.00. ISBN-13: 978-1-933859-32-3; ISBN-10: 1-933859-32-6.At the beginning of the 21 st century, individuals in the United States typically take for granted the free-speech clause in the First Amendment of the Constitution. With few exceptions, such as in cases of blackmail or when speech, to quote Justice Oliver Wendell Holmes, Jr. in his 1919 dissent in Abrams v. United States, "produces and is intended to produce a clear and imminent danger that ... will bring about forthwith certain substantive evils," anything and everything-no matter how unseemly, inappropriate, loathsome, or vile it may appear to others-can be expressed without fear of government sanctions both at the federal and state levels. Or, as Justice William J. Brennan, Jr., put it in 1989 in Texas v. Johnson, "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," an opinion consistent with his view in 1957 in Roth v. United States that ideas with "even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion" deserve First Amendment protection (qtd. in Lewis, pp. 28, 134, 165).But as Adam Liptak reminds us in "Unlike Others, U.S. Defends Freedom to Offend in Speech (The New York Times, June 12, 2008), the United States follows a "distinctive legal path" in its approach to what Holmes called "the thought that we hate." Numerous other countries, including Canada, England, France, Germany, the Netherlands, South Africa, Australia, and India, "have laws or signed international conventions banning hate speech," so much so that "[i]t is a crime to deny the Holocaust in Canada, Germany and France." Hate speech, of course, is not limited to Holocaust denial. In France, Liptak writes, "Brigitte Bardot, an animal rights activist, was fine $23,000 ... for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep." In Canada, the weekly newsmagazine Maclean's was forced to defend itself before human rights tribunals in Ontario and British Columbia in 2007-2008 for publishing an article by Mark Steyn called "The Future Belongs to Islam," an excerpt from his book America Alone (Regnery, 2006), which argued that "the rise of Islam threatened Western values." In Canada, these laws "seem to stem from a desire to promote societal harmony," concludes Liptak, pointing to the words of the Chief Justice of the Supreme Court of Canada in 1990, Brian Dickson, who said 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." Dickson's view informed the findings of the Ontario Human Rights Commission (OHRC) in the Maclean's case. Although the complaint against Steyn's article was dismissed for lack of jurisdiction, the OHRC observed that "[i]n Canada, the right to freedom of expression is not absolute, nor should it be," condemning the article as an "explicit expression of Islamophobia" that "further perpetuates and promotes prejudice towards Muslims and others." As the title of Frederick Schauer's 2005 essay "The Exceptional First Amendment" indicates, the First Amendment is truly unique, when considered from an international perspective, in its indefatigable commitment to privileging "the freedom of speech, or of the press," even when that speech is reprehensible or includes "falsehoods" (Lewis, p. …