Curbing the Tongue

Adam Liptak's column in today's NY Times was one of the most disturbing things I've read all year, and that's saying something. It seems that there are people in American, including some legal scholars, who believe that the US should join with the rest of the world in curbing free speech, especially when it falls into the category of "hate speech."

What provoked Mr. Liptak's column was a lawsuit in Canada involving a magazine article containing some truly nasty comments about Muslims. Acknowledging that such a lawsuit would not prevail in the US because of the First Amendment, Liptak points out that the US is basically a minority of one when it comes to protected speech:

“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.”

Some legal scholars seem to think that such a broad protection is, in these days of terror, not such a good idea:

“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 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 mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article — or any publication — intended to stir up racial hatred surely does not. ...

Mr. Lewis wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement.

“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”

But is it? Is the fear that someone might take the hateful speech of a sociopath seriously sufficient excuse to curb our tongues? If so, Rush Limbaugh and other right wing radio stars are in serious trouble. And then, what's next? Metaphoric speech calling for pitchforks and torches?

I think our nation's founders had a much better idea, one that was based on the belief that exposing such hate to the light of day, confronting it, debating it would suffice to show just how wrong it was.

Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass., disagreed. “When times are tough,” he said, “there seems to be a tendency to say there is too much freedom.”

“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.”

Senator George Allen learned how that worked when he called one of his opponent's campaign worker "macaca." It didn't require a law to suppress Mr. Allen's speech, voters showed their disgust with such hatefulness in the best way possible -- at the voting booth.

Just because some misguided sociopaths attacked one section of one city is no reason to alter the only thing which really is exceptional about the United States, our Constitution. If we give in, if we have to curb our tongues, then those sociopaths really will have won.