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

Abstract

Freedom for Thought That We Hate: A Biography of First 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 Palmer Raids to Patriot Act: A History of 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 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 beginning of 21 st century, individuals in United States typically take for granted free-speech clause in First of Constitution. With few exceptions, such as in cases of blackmail or when 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 federal and state levels. Or, as Justice William J. Brennan, Jr., put it in 1989 in Texas v. Johnson, the government may not prohibit expression of an idea simply because society finds idea itself offensive or disagreeable, an consistent with his view in 1957 in Roth v. United States that ideas with slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to prevailing climate of opinion deserve First 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), 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, 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 Holocaust in Canada, Germany and France. Hate 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 slaughter of sheep. In Canada, 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 words of Chief Justice of Supreme Court of Canada in 1990, Brian Dickson, who said that the international commitment to eradicate hate propaganda and, most importantly, special role given equality and multiculturalism in Canadian Constitution necessitate a departure from view, reasonably prevalent in America at present, that suppression of hate propaganda is incompatible with guarantee of free expression. Dickson's view informed findings of Ontario Human Rights Commission (OHRC) in Maclean's case. Although complaint against Steyn's article was dismissed for lack of jurisdiction, OHRC observed that [i]n Canada, right to freedom of expression is not absolute, nor should it be, condemning article as an explicit expression of Islamophobia that further perpetuates and promotes prejudice towards Muslims and others. As title of Frederick Schauer's 2005 essay The Exceptional First Amendment indicates, First is truly unique, when considered from an international perspective, in its indefatigable commitment to privileging the freedom of or of press, even when that speech is reprehensible or includes falsehoods (Lewis, p. …