Below The Beltway

It’s been fashionable in some circles for awhile now to compare the United States to it’s neighbor to the north, and find the USA lacking.

Say what you will about health care, hockey, or bacon at least Americans don’t have to worry about the power of the state coming down upon us when we say something that “offends” someone:

VANCOUVER, British Columbia — A couple of years ago, a Canadian magazine published an article arguing 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.

Things are different here. The magazine is on trial.

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

The British Columbia Human Rights Tribunal, which held five days of hearings on those questions here last week, will soon rule on whether Maclean’s violated the law. As spectators lined up for the afternoon session last week, an argument broke out.

“It’s hate speech!” yelled one man.

“It’s free speech!” yelled another.

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.

And it’s not just Canada that sees free speech as optional:

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.

Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.

By contrast, American courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply distressing to the many Holocaust survivors there.

Six years later, a state court judge in New York dismissed a libel case brought by several Puerto Rican groups against a business executive who had called food stamps “basically a Puerto Rican program.” The First Amendment, Justice Eve M. Preminger wrote, does not allow even false statements about racial or ethnic groups to be suppressed or punished just because they may increase “the general level of prejudice.”

By contrast, Canadian Courts have frequently held that bans against speech should be upheld, even when the speech in question is only mildly acerbic:

A 1990 decision from the Canadian Supreme Court, for instance, upheld the criminal conviction of James Keegstra for “unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements.” Mr. Keegstra, a teacher, had told his students that Jews were “money loving,” “power hungry” and “treacherous.”

Writing for the majority, Chief Justice Brian Dickson said there was an issue “crucial to the disposition of this appeal: the relationship between Canadian and American approaches to the constitutional protection of free expression, most notably in the realm of hate propaganda.”

Chief Justice Dickson said “there is much to be learned from First Amendment jurisprudence.” But he concluded that “the international commitment to eradicate hate propaganda and, most importantly, the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression.”

The United States’ distinctive approach to free speech, legal scholars say, has many causes. It is partly rooted in an individualistic view of the world. Fear of allowing the government to decide what speech is acceptable plays a role. So does history.

“It would be really hard to criticize Israel, Austria, Germany and South Africa, given their histories,” for laws banning hate speech, Professor Schauer said in an interview.

In Canada, however, laws banning hate speech seem to stem from a desire to promote societal harmony. While the Ontario Human Rights Commission dismissed a complaint against Maclean’s, it still condemned the article.

“In Canada, the right to freedom of expression is not absolute, nor should it be,” the commission’s statement said. “By portraying Muslims as all sharing the same negative characteristics, including being a threat to ‘the West,’ this explicit expression of Islamophobia further perpetuates and promotes prejudice toward Muslims and others.”

Law Professor Rick Hills seems to think that the fact that political correctness now seems to trump freedom in Canada is just fine:

[M]y guess – it is only the most casual of guesses – is that freedom of expression is doing just fine up north, despite the indifference of Canada’s formal constitutional law doctrine to issues of critical importance to American law. I doubt that any speaker with any minimally serious academic or journalistic heft has been “chilled” by the Commission’s admittedly goofy bureaucratic shenanigans. Moreover, I doubt that the political elites will allow the Commission to burden any speech that elite opinion deems to be within the pale of ordinary journalism or academic practice. Assuming arguendo that some petty Robespierres staffing the HRT dearly wish to prosecute and intimidate conservative speakers, Conservative MPs and the press more generally would not let them get away with it. (Incidentally, it seems likely that any fines imposed by the Tribunal on Steyn will be dwarfed by the value of the free publicity and resulting book sales that Steyn will win as a result of the hearing: The tribunal’s jurisdiction does not extend to print media, leaving the profit from paper communication unaffected by its ruling).

This is not to say that marginal speakers have not been deterred. The proverbial street corner ranter; the pamphleteer with cranky, angry screeds about immigrants, the radio shock jock; even the priest who delivers an anti-gay sermon, all are liable for a cease-and-desist order – maybe even a few thousand dollars in fines — if they use telecommunications to transmit their message. (For a list of investigations and prosecutions, see here ) But the Canadian who speaks with the usual Canadian circumspection and courtesy will, I’m guessing, escape unscathed from the Commission’s thought police.

In other words, just keep your mouth shut and be a good little Canadian and Big Brother will leave you alone.

Yet another reason that I’m glad I live south of the border.