At Large : Bad words
It is true that Americans of all persuasions invoke the powerful protections of the First Amendment as needed in defense of the right to say what they want to say. It is also true that these same Americans are less inclined to invoke this paramount right in defense of spoken or written expressions with which they disagree. With regard to expressed opinions they find abhorrent, Americans are often willing to suspend the right in order to shut the offending speaker up.
After the Constitution was adopted in 1787 and then sent to the states for ratification, its prospects were dim. John Hancock of Massachusetts proposed that the Congress should add a Bill of Rights, to be adopted along with the Constitution, and that ultimately did the trick. First among the enumerated rights was the amendment protecting speech and the press. The people and their representatives in the 18th Century insisted that they should be free to think, speak, and publish as they wished.
Times and political opinions change. In the 2007 edition of a wide ranging survey on the State of the First Amendment, conducted regularly by the First Amendment Center, only 50 percent of those questioned thought the press had about the right amount of freedom, as guaranteed by the First Amendment. Thirty-four percent thought the press had too much freedom. Only 37 percent thought the media tried to report the news without bias. Sixty percent said people should be allowed to say things in public that might be offensive to religious groups. But just forty-one percent said the same thing about speech that might offend racial groups. The numbers suggest that freedom of speech and of the press is not as assured in 21st Century America, in the wavering opinions of the American public, as it was in the Colonies in the 18th Century.
If the value and desirability of First Amendment guarantees - they include, in addition to protection for speech and the press, safeguards for the practice of religion, the right to assemble, and the right to petition the government - were tested this way among a scientifically determined, representative global sample, the result would make it clear that the state of the First Amendment globally is deeply uncertain. Even in countries we generally regard as our like-minded brethren, Great Britain for example, or Canada, neither speech nor the press is so expressly or fiercely protected. And, in this uneasy moment when ideas and opinions, and news of them, circumnavigate the globe instantly, when money travels almost as quickly, when trade and travel erase borders, and when each nation must consider the implications of its words and actions in every other nation, friend or antagonist, the unique guarantees of our First Amendment are increasingly out of step and under attack in many quarters. But, after all, among its many benefits, should globalization be the instrument for the homogenization of the planet's distinct societies? No, but the possibility exists.
For instance, a June 12 New York Times article written by Adam Liptak discussed the contrast between the American approach to speech and press freedom and the vastly different approach in our near neighbor and greatest trading partner, Canada. Mr. Liptak began with an article in a Canadian magazine that argued that the rise of Islam threatened Western values.
"The article's tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal," Mr. Liptak wrote. But, Mr. Liptak reported, the magazine is on trial before the British Columbia Human Rights Tribunal, which will decide if the words in that article "violated a provincial hate speech law."
Mr. Liptak's story should concern every American. "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," Mr. Liptak explains. And, not only elsewhere in the world, but here in American universities, some legal scholars wouldn't mind if our country reconsidered its position on hate speech - an appalling notion.
Mr. Liptak quotes the legal philosopher Jeremy Waldron: "It is not clear to me that the Europeans are mistaken when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack." That means, I suppose, protecting the targets of a strenuous verbal attack from emotional bruising.
Mr. Liptak adds Anthony Lewis' voice to those who, like Mr. Waldron, suggest that some narrowing of the First Amendment freedom may be in order. "Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections 'in an age when words have inspired acts of mass murder and terrorism.' In particular, he called 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."
My reading of Freedom for the Thought That We Hate: A Biography of the First Amendment, Mr. Lewis' 2007 book, differs from that of Mr. Liptak. Relaxing First Amendment protections is very likely the last thing to find favor with Mr. Lewis. Our West Tisbury seasonal neighbor, a First Amendment historian, is more careful, more judicious, than Mr. Liptak suggests. Rather, Mr. Lewis would be exquisitely careful to balance the understandable need to sanction speech intended provoke violence among listeners predisposed to answer such an exhortation with Justice Oliver Wendell Holmes Jr.'s 1919 description of the Constitutional "experiment" of which we are all a part. Justice Holmes wrote, "That at any rate is the theory of our Constitution," the judge wrote and Mr. Lewis quotes admiringly. "It is an experiment, as all life is an experiment ... While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country ... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law ... abridging the freedom of speech.'"