Hate Speech, Fighting Words, and beyond - Why American Law Is Unique

Article excerpt

During the waning days of the turbulent presidential campaign of 2012, the issue of free speech was bound to emerge. President Barack Obama chose this moment to declare to the United Nations General Assembly his abiding commitment to the uniquely American value of unfettered expression. (1) In a diverse society, he reaffirmed, "efforts to restrict speech can become a tool to silence critics, or oppress minorities." (2) The catalyst for this declaration was the appearance of "a crude and disgusting video" (3) caricaturing the Prophet Muhammad which had triggered violent protests in more than twenty nations, mainly in the Middle East. (4) President Obama made clear both his disdain for the video and his unswerving faith in the singularly American insistence on free expression. (5)

Curiously (or some would say paradoxically) the Obama Administration only weeks earlier had actively supported passage of a resolution in the United Nations Human Rights Council to create an international standard restricting some anti-religious speech; the Egyptian ambassador to the United Nations had lauded this measure by recognizing that '"freedom of expression has been sometimes misused' to insult religion." (6) Secretary of State Hilary Clinton had added her view that speech or protest resulting in the destruction of religious sites was not, she noted, "fair game." (7) In a recent and expansive analysis of these contrasting events, constitutional scholar Jonathan Turley noted the paradox: "President Obama's U.N. address last month declaring America's support for free speech, while laudable, seemed confused--even at odds with his administration's own efforts." (8)

In fact, such asymmetries abound in the contrasting views of the United States and virtually all other western nations. Countries as geographically close and politically congenial as Canada view free expression in starkly different ways than do we in the United States. In mid-October of this year, Canadian officials barred from our mutual border Reverend Terry Jones, the notorious Koran-burning pastor who has been the target of venomous hatred but has not been charged with any crime in this country; Jones was interrogated at length by Canadian officials and eventually turned away, unable to attend a Toronto gathering at which he had been invited to speak weeks earlier. (9) In sharp contrast, President Obama, the Pope, and religious and military leaders have consistently implored Reverend Jones to abandon his Koran-burning, and his church's tax exempt status has been stripped for technical reasons, (10) But even under the rubric of "incitement," (11) criminal sanctions and even civil penalties have not been imposed. (12) And just as a timely reminder of how dramatically different is the U.S. approach to hateful speech, a federal district court in the same week ruled that the Metropolitan Washington Transit Authority could not constitutionally prevent or delay the posting of a controversial ad reading "IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN. SUPPORT ISRAEL. DEFEAT JIHAD." (13) District Judge Rosemary Collyer ruled that such a message could not be barred or excluded from the bus and subway poster spaces simply because it might upset (or even inflame) some Metro riders. (14)

Finally in this very recent overview, we might note the growing tension over restrictions imposed by U.S. internet providers upon expression in other parts of the world. Google, for example, is blocking access in two countries to a crude and inflammatory anti-Muslim video, but without removing the video from the YouTube website. (15) And a few weeks later, Twitter was reported to have blocked German Twitter users from accessing an account of the activities of a neo-Nazi group that is banned in Germany, since the use of Nazi symbols and slogans and insignia is widely banned and subject to severe criminal sanctions. (16) The following day, however, a French Jewish group reported that Twitter had removed the anti-Semitic postings and had reopened access even to German users. …