South Dakota, Free Speech, and Irony

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Posted By: Sarah Boyd July 15, 2008

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 here at Law Is Cool have been more on top of this than I, and have posted some here. I have been reticent to comment because I’m of two minds on the issue. Not the case, so much, because I think Steyn 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 pratfall, 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 others’) 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 Unquestionable Truth…

…even when everyone knows it’s not.

For those interested, here are some related Canadian cases:

5 Comments on "South Dakota, Free Speech, and Irony"

  1. lawiscool | July 17, 2008 at 7:29 am |

    The threat of imminent violence is an American test.

    Richard Moon of Windsor Law said in SYMPOSIUM: 20 YEARS UNDER THE CHARTER: Freedom of Expression and the Canadian Charter of Rights, (2002) 21 Windsor Y.B. Access Just. 563,

    In the United States debate about the appropriate limits on speech revolves around the question of whether or not the speech goes “too far” and disrupts the security or stability of the community by inciting members of the public to harmful action or deceiving them on an important public matter. The paradigmatic speaker in American free speech jurisprudence is the lone dissident who confronts or challenges state power or dominant ideologies. She/ he should be free to speak and to challenge convention, unless her/his words go too far and provoke violence or threaten community security or stability.

    In Canada, freedom of expression debate is often framed in similar terms. Yet it may be that an entirely different sort of concern underlies the freedom of expression decisions of the Canadian courts. While the courts describe certain in-stances of racist, pornographic or commercial expression as “going too far” and as appropriately subject to restriction, these forms of expression can only be understood as harmful if we see them as part of a systemic practice. The courts support the restriction of “extreme” expression or expression that “goes too far” (ads for dangerous products, violent sexual images, or extreme racist statements). However, the justification for restriction of these “extreme” statements depends not simply on their form, but also on the domination of public discourse by a narrow range of voices and views: the overwhelming presence in our public discourse–the mass marketing–of degrading sexual imagery or racist stereotypes or lifestyle product associations.

    We do subscribe to the marketplace of ideas, but the threshold for hate speech is considerably lower in Canada, and evaluates slightly different criteria, which is why our American readers have such difficulty with the concept.

    But these concepts are not entirely foreign to American jurisprudence either. In his review of The Irony of Free Speech, Moon says (48 Univ. of Toronto L.J. 125),

    A state restriction will be justified, if the restricted speech is shown to have a silencing effect on some members of the community and leads to an overall reduction in the scope of public discourse. The state is justified in protecting the equal opportunity of minority groups to participate in public discourse not ‘to further their self-expressive interests but only as a way of furthering the democratic process’ (18). In all cases the critical issue is whether the particular regulation makes a net contribution to the First Amendment goal of a more open and diverse public discourse. A state restriction on hate speech, for example, ‘might promote . . . the speech rights of . . . minorities . . . but it necessarily diminishes the speech rights of racists’ (17). The state should be permitted to pursue the legitimate purpose of fostering full and open debate — of ‘making sure that the public hears all that it should’ (17).

    These infringements on 2(b) rights are considered justifiable under s.1 as it promotes the goals of a democratic society. In speaking about Keegstra, Moon said (26 U.B.C. L. Rev. 99 – 143),

    59 Finally, Dickson C.J.C. considers the contribution of hate propaganda to Canadian democracy. His version of the democratic justification of freedom of expression emphasizes the contribution of expression to the quality of public decision-making as well as the intrinsic value of participation in the decision-making process. Chief Justice Dickson accepts that the suppression of hate propaganda muzzles the participation of a few individuals in the democratic process. However, he considers that the degree of this limitation “is not substantial.” On the other hand, he notes that hate propaganda, although political, involves “ideas anathemic to democratic values.” It argues “for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics.”57 Chief Justice Dickson finds it difficult “to see the protection of such expression as integral to the democratic ideal so central to the section 2(b) rationale.”

    Therefore, the characterization of some opponents to human rights tribunals is patently false. Infringements on speech are only justifiable in the interests of creating a more inclusive and tolerant society, and are very much compatible with our legacy in Western traditions.

  2. KC | July 17, 2008 at 7:41 pm |

    Thank god collectivist, positive rights theorists like Richard Moon don’t get to adjudicate the scope of free expression (yet)… blech!

  3. Omar Ha-Redeye | July 17, 2008 at 8:53 pm |

    Actually, he was recently retained by the Canadian Human Rights Commission for a policy review on exactly this subject.

    Jennifer Lynch, Q.C., the Chief Commissioner said last month,

    The Commission is dedicated to ensuring that the Canadian Human Rights Act remains effective. Legislation must evolve – when necessary – to respond and reflect changes in our society. We take seriously the role envisaged for us in section 27 of the Act, which permits us to act in an advisory role to Parliament.

    But first, in order to lead and influence an informed debate we must ensure that we have insight into the issues.

    Therefore, this morning I am announcing the immediate launch by the Canadian Human Rights Commission of a comprehensive policy review of how to best deal with hate on the Internet. This will include a review of section 13 and the role of the Commission.

    As an integral component of the broader policy review, the Commission has retained leading constitutional law expert Richard Moon to conduct an independent study.

    Professor Moon is a prominent expert on freedom of expression, freedom of conscience and religion, and the structural aspects of constitutional rights protection. He is the author of the seminal book, “The Constitutional Protection of Freedom of Expression”.

    His many publications on freedom of expression and freedom of religion are widely read and respected and his work has informed generations of law students in Canada and United States. Professor Moon teaches Law at Windsor University.

    His study will include an examination of existing statutory and regulatory mechanisms. It will also consider the mandates of human rights commissions and tribunals, and other government institutions involved with addressing hate messages on the Internet. Also important, his study will consider whether other governmental or non-governmental organizations could play a role in addressing hate on the Internet.

    His independent expert report will, together with our own research, inform the Commission’s future representations to Parliament.

    However, as cognizant of the effects on hate speech as Moon, I personally expect that he will find that the courts cannot properly adjudicate it.

    I also anticipate that the OHRC will probably conduct its own study with other legal expects that will probably come out with the opposite conclusion.

    But it’s the nuanced and far deeper analysis that each will take that makes for a much more interesting legal discourse than the unintelligent flaming going on elsewhere.

  4. KC | July 17, 2008 at 9:31 pm |

    … yes which is why so many of us reject the CHRC’s own review of its mandate as a farce.

  5. lawiscool | July 18, 2008 at 7:12 am |

    We’re still waiting for you to submit a piece on the subject KC.

Comments are closed.