Adam Liptak of the New York Times has a new entry in their "American Exception" series, which examines "commonplace aspects of the American justice system that are actually unique in the world." Today's entry is on a subject we've often blogged about here: hate speech laws and the emerging right not to be offended. The article is a quite good survey of how First Amendment law prevents the sort of totalitarian speech restrictions we've seen recently, most notably in Canada.
But Liptak's piece is already being criticized in some circles as being hostile to American-style speech protection and sympathetic to Canadian-style speech suppression. I don't think that reading is credible at all. Liptak does quote and describe the views of people who want America to start forging First Amendment exceptions in service of the right not to be offended, such as "legal philosopher" Jeremy Waldron and former NYT columnist Anthony Lewis. But he also quotes people of equal or greater stature who articulately reject that view. And more importantly, he forthrightly and accurately describes how American First Amendment law is an outright bar to the sort of he-hurt-my-feelings jurisprudence that now prevails in Canada:
The imminence requirement sets a high hurdle. 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. A fiery speech urging an angry mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article — or any publication — intended to stir up racial hatred surely does not.
But merely saying hateful things about minorities, even with the intent to cause their members distress and to generate contempt and loathing, is protected by the First Amendment.
This distinguishes Liptak from some journalists and American muzzle-fanciers, who tend to downplay First Amendment barriers to hate speech laws and focus on exaggerated descriptions of exceptions thereto. Liptak's article is completely up-front, and accurate, about First Amendment barriers.
Ultimately it seems to me that critics wanted a Bill O'Reilly treatment of the subject rather than a journalistic one — a sneering slam of one side of the argument. That's a matter of taste, I guess. I yield to no one in my contempt for the emerging right not to be offended in places like Canada, but I think the criticism of Liptak is silly.
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