Background
In June 2008, the New York Times published this article: "Unlike Others, U.S. Defends Freedom to Offend in Speech" by Adam Liptak. In the article (which caused a big todo in Canada, since we were mentioned! In the New York Times! Above the fold!), Liptak takes exception to the BC Human Rights Tribunal hearing of a complaint against Maclean's.
My fellow blawgers at Law Is Cool have been more on top of this than I, and have posted some background info. I have been reticent to comment because I'm of two minds on the issue. Not the case, so much, because I think Stein is an Islamophobe and basically a jerk, and I have long despaired of Maclean's practicing fair and balanced journalism, but the issue of hate speech versus censorship is one I find very troubling.
To quote Liptak, "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."
Indeed, the threshold for making speech illegal is that it provokes imminent violence. "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."
Liptak also quotes Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists:
“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”
Update, South Dakota
Nearly a month after the Liptak article, this particularly disturbing article comes into my RSS feeder: "Telling Doctors What To Think: South Dakota's unbelievable new abortion law", by Emily Bazelon.
Once again, South Dakota anti-choice lobbyists are working to overturn Roe v. Wade by passing a law to seriously limit abortions. Their attempts to outlaw it entirely having failed, they have a new strategy, and it works like this:
Q. How do we convince doctors to tell patients that abortion is murder?
A. Pass a law forcing them to say that abortion is ending the life of a person!
Q. But Roe v. Wade ruled that a fetus is not a "person", so how can we circumvent that?
A. Use the phrase "human being" instead!
Q. What if someone argues that "human being" and "person" mean the same thing?
A. Define it in the legislation! That makes it true!
The truly appalling thing is that the 8th Circuit Court of Appeal ruled that forcing doctors to say:
that "the abortion will terminate the life of a whole, separate, unique, living human being," and that they have "an existing relationship with that unborn human being" that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.)
is not a violation of the right to free speech.
One of these things is not like the other
What South Dakota (and, apparently, the 8th Circuit Court of Appeal) fails to realize is that Tautology is a rhetorical and logical failure, not a legal doctrine to be followed. The narrow-mindedness is underlined by this choice quote:
"The bottom line is if the state Legislature orders a professional to tell the truth, that's not a violation of the First Amendment," said South Dakota Attorney General Larry Long, who is defending the law in court.
Apparently, South Dakota Attorney General Larry Long is unaware that "the truth" is an objective fact, not (a) what he personally believes, nor (b) what the legislatures drafts in the definitions sections of a statute. The appeal to authority is another logical fallacy which runs rampant all over this case.
Doesn't this seem to run counter to Adam Liptak's (and other's) panegyric to the Great American First Amendment? Sure, in America you can say hateful, distasteful, horrible things until your dying breath, and there you are protected by the Constitution. But woe betide doctors who would prefer not to lie to their patients, when the South Dakota legislature has decreed that "abortion is murder" is an Absolute Truth...even when everyone knows it's not.
