NYT: Unlike Others, U.S. Defends Right to Offend in Speech
Here's something we get right. Unlike many of our allies, we don't have repressive, totalitarian laws against offensive speech.
I know people who seem to think that the left is always right, and that the more we become like e.g. Canada the better off we'll be. This article is a reminder that that just ain't so.
Here's something we get right. Unlike many of our allies, we don't have repressive, totalitarian laws against offensive speech.
I know people who seem to think that the left is always right, and that the more we become like e.g. Canada the better off we'll be. This article is a reminder that that just ain't so.
posted by Winston Smith at
6:54 PM
12 Comments:
I saw this and had almost the same response. I fear government regulation of speech more than all the jerks who are offensive with it.
I'm not interested in restricting robust dialog because it might hurt the feelings of someone who needs a thicker skin. We've seen hypersensitivity from just about everyone at one time or another from fundie Christians to Muslims, from feminists to conservative men who are tired of having their penis-centrism mocked, from Confederate sympathizers to respect-hungry rappers.
Free speech? Only if it doesn't offend the prudes. Don't kid yourself.
In this country, neither the left (what there is of it) nor the right truly support free speech - liberals do. I wish people would cease conflating "liberal" and "left". They're as different as "liberal" and "right".
Unlike many of our allies, we don't have repressive, totalitarian laws against offensive speech.
Never been sued for libel, eh?
There's a difference between "offensive" and "libel" or its spoken equivalent "slander", Smith. I think that's obvious enough to warrant the absence of an explanation in this post.
Damn, WS, you also didn't cover shouting fire in a crowded theater, threatening bodily harm, violating copyright, lying to police, perjury, do not call lists, truth in advertising, grand jury confidentiality, insider stock tipping, inciting riots, or advocating the violent overthrow of the government. Your extensive treatise is woefully incomplete!
I think Bob was kidding...
(wiping egg off face)
Actually Winston, I wasn't.
However, I was referring only to the Canadian laws, which would not have been apparent from my comment.
Here is the test that the Complainant in the Steyrn case must meet:
"Does the communication itself express hatred or contempt of a person or group on the basis of one or more of the listed grounds, and would a reasonable person understand this message as expressing hatred or contempt?
Assessed in its context, is the likely effect of the communication to make it more acceptable for others to manifest hatred or contempt against the person or group, and would a reasonable person consider it likely to increase the risk of exposure?"
Here is the old test for libel, which is no longer used because it is too narrow:
"libel is that which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule."
Groups for the most part cannot sue for libel ( Exceptions include corporations, trade unions and some others). However, every case I have read in Canada that finds a breach of the Human Right "hate speech" provision would, if directed at an individual and not a group, clearly be libel.
So the question is, why should an individual be able to sue for libel but a group cannot?
And once you view it this way, a belief that laws like Canadian "hate speech" statutes are "repressive and totalitarian" but defamation is a valid restriction on free speech seems slightly incongruous, to say the least
eb--
Somehow I overlooked your comment before, but, FWIW, I agree 100%.
Bob--
Oh, sh!t... Now that's very interesting, isn't it? Guess I'd better, ya know, actually learn something about this. Very perplexing, to say the least.
Bob, you Canadians are so humorless! So sue me. (I am of course kidding about the humorless thing - if nothing else lots of counterexamples on TV down here.)
There are a few problems with your argument. First, defamation as a legal term supposes more than its literal meaning. I'm not familiar with your old test for libel, but it must have been only a partial test. It's not enough that you say something bad ('defaming') about someone. It has to be false. In the U.S. and English common law, the truth of a statement is an ironclad defense against accusations of tortious defamation.
Second, opinion is protected, however odious. If someone called, say, Obama stupid because of his race, that would be protected. Stupid, too - I mean, listen to the man! - but protected. Moving to silence selected opinions is unfree.
Further, the state does not enforce defamation laws. They are civil causes of action brought by plaintiffs. Duhbya can't send his US Attorneys out to prosecute everyone who calls a Republican a crook - nor for those of us who might in a fit of hyperbole call every Republican a crook.
In the end, I don't want the state telling me what I can believe because, if it can do so legally, it's only a matter of time before it stretches the boundaries of previous and more defensible legal custom. Look at the U.S. and what the Bushists have done to our Constitution. But the one area they've left pretty well alone is the First Amendment.
Forgot this useful link.
LL
I will preface my remarks once again by stating I am only referring to the Canadian laws. I know next to nothing about the European laws and the allegations in the linked article seem to me to be an excessive restriction on free speech.
In order - Truth as a defence. Indeed, no argument from me. And quite frankly I have no idea if truth is a defence under the Canadian law. I have read a handful of cases (there aren't actually that many reported cases) and the question of whether the truth of the statement is a defence has never come up.Indeed, in the 107 page decision from which I took the earlier quote, no one argued that point. I do have a hard time imagining someone being found liable for a truthful statment.
Opinion is protected, the defence is known as fair comment, but only if the opinion is based on fact. If you get the facts wrong, the defence fails. Leaving aside the question of public figures, if you called someone stupid that is defamatory, and fair comment would only apply if you could show facts in support of that opinion. If you said all persons of a certain race are stupid that is a breach of the hate speech laws.
Finally, in Canada, hate speech cases are civil cases, adjudicated before Human Rights Tribunals. The complainants are responsible for bringing any action, not the state.
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