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Legally Speaking

AMERICAN EXCEPTION U.S. FREEDOM TO OFFEND IN SPEECH By Adam Liptak, The Wall Street Journal, June 12, 2008

07/01/2011 - American law is, by international standards, a series of innovations and exceptions. This series of articles examines commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we will try to update his reports with recent statistics or rulings that may have changed the law since the articles were first published.



By Adam Liptak, The Wall Street Journal, June 12, 2008

VANCOUVER, British Columbia — About five years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article's tone was mocking and biting, but it said nothing that conservative publications in the United States do not say every day without fear of legal reprisal.

The British Columbia Human Rights Tribunal held five days of hearings on whether the magazine violated a provincial hate speech law by stirring up hatred against Muslims. But, in the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence.

In "Freedom for the Thought We Hate: A Biography of the First Amendment," Anthony Lewis calls 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 a crowd to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article intended to stir up racial hatred does not.

The First Amendment is not, of course, absolute. The Supreme Court has said that the government may ban fighting words or threats. Punishments may be enhanced for violent crimes prompted by racial hatred. And private institutions are not subject to the First Amendment, which restricts only government activities.

Justice Oliver Wendell Holmes Jr.'s 1919 dissenting opinion in Abrams v. United States eventually formed the basis for modern First Amendment law. "The best test of truth is the power of the thought to get itself accepted in the competition of the market," Justice Holmes wrote. "I think that we should be eternally vigilant," he added, "against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

While the Ontario Human Rights Commission dismissed the complaint against Maclean's, it still condemned the article. "In Canada, the right to freedom of expression is not absolute, nor should it be," the commission's statement said. "[T]his explicit expression of Islamophobia further perpetuates and promotes prejudice toward Muslims and others," it concluded.

"Western governments are becoming increasingly comfortable with the regulation of opinion," said Mark Steyn, the author of the controversial article. "The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world."


Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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