U.S. v. Canada When It Comes to Free Speech

[WSJ_law_blog]

Oliver Wendell Holmes, photographed in 1900, served 30 years on the U.S. Supreme Court and had the nickname the “Great Dissenter” because of his liberal views. (AP Photo)


Last week’s report that actress Brigitte Bardot had been convicted of provoking racial hatred by writing that Muslims are destroying France brought to mind an important difference between the U.S. and Europe: When it comes to offensive speech, the U.S., in the words of Justice Oliver Wendell Holmes, tends to leave regulation to the marketplace of ideas.

In today’s NYT, an article by Adam Liptak teaches us that our free speech policies also diverge from those of our neighbor to the north. Liptak reports that Maclean’s, Canada’s leading newsweekly, is on trial for publishing an article arguing that the rise of Islam threatened Western values.

Two members of the Canadian Islamic Congress say Maclean’s violated a provincial hate speech law by stirring up hatred against Muslims. They seek a ruling that the magazine be forbidden from saying similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their “dignity, feelings and self-respect.”

Ironically, the article in question, “The Future Belongs to Islam,” was an excerpt from a book by Mark Steyn called “America Alone,” which is reportedly about how the U.S. takes a different path when it comes to its treatment of hate speech. Liptak writes that Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.

In his opening statement in the Canadian magazine case, reports the NYT, the Canadian Islamic Congress’s lawyer, Faisal Joseph, told a three-member panel of the tribunal that they “are the only thing between racist, hateful, contemptuous Islamophobic and irresponsible journalism, and law-abiding Canadian citizens.”

In response, the lawyer for Maclean’s, Roger D. McConchie, criticized the hate speech law: “Innocent intent is not a defense. Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”