What these episodes do demonstrate is the merit of the American wording, given in terms of “negative rights” — things the government cannot do to you.

The difference is subtle, but important. Everyone, from neo-nazis to religious fundies to right- or left-wing nutjobs, can express their ideas about other groups — including “those people deserve to die.” But a direct threat of violence (”let’s go kill them right now”) moves from “expression of ideas” to “directly promoting a violation of someone’s rights”. Shouting “FIRE” in a crowded theater is not an expression of ideas, but rather, an attempt to create a dangerous situation. Intentionally making baseless accusations against a person (libel) is not an expression of ideas, but an attempt to harm another person.

None of these are protected under “free speech” — but there is a high burden of proof to show that a particular statement falls into one of these categories. As Legal Eagle said, there has to be a limit somewhere, and in the case of US law, the limit is where you change from “free exchange/expression of ideas” to “attempt to instigate violence, create a dangerous situation, or intentionally harm someone”. And you have to be clearly over the line before you can be convicted.

They put their signatures at the bottom of posts.

Fair enough.

James

It’s common in Australia for people of different political persuasions to blog together. Club Troppo is the same, and there’s about 10 of them (there’s only two of us, but we’re still quite different). It seems much rarer in the US.

Terribly sorry, everyone. My mistake!

“From what I understand of US free speech law, it is not unfettered anyway…”

We have laws against slander, and it is against the law to incite violence. The burden of proof falls heavily on those who bring such charges because free speech is so important in the United States.

If anyone tried legal recourse against someone who hurt their feelings, they violate this “…right to be free of vilification…” that I mention so many times above, then they would be laughed right out of the courtroom.

And rightly so.

James

From what I understand of US free speech law, it is not unfettered anyway…

In American law, the state is only allowed to restrict speech when there is an immediate, physically localized, threat of violence. This is Holme’s famous “shouting fire in a crowded theater” exception.

For example, saying “let’s go beat those guys up across the street right now” is a statement that could lead to immediate localized violence so the authorities could restrict it. On the other hand the authorities could not act against someone who said “people of group x are vermin and should be eradicated at some as yet undetermined date” because the statement doesn’t immediately lead to violent action.

Hate speech laws target the second kind of statement. They a premised on the idea that the state has both the wisdom and the restraint necessary to distinguish what speech is hateful from the merely critical. Unfortunately, this is hopeless fantasy like the communist idea that the state could centrally control the economy. Political systems simply do not the ability to process that kind of information.

Indeed, no individual or group of humans possess that kind of information. Instead, we would merely decide based on the prejudices and assumptions of our own subcultures. Current “hate speech” laws are enforced almost exclusively against those on the political right. One can say anything negative about people held in contempt by leftist without fear of authority. As such all instances of “hate speech” laws are really just tools of genteel political oppression.

Our attitude toward free speech is also seen in the differences between American and other common law countries’ remedies available to complainants. It is exceeding difficult to prevent something from being published, even if the information involves state secrets (doctrine of “prior restraint”). Truth is an absolute defense against libel actions brought by public figures, as is fair comment (e.g., you can call someone an idiot without having to enter his IQ score into evidence, but you had better have a copy of the arrest warrant if you call him a child molester). Public figures must also show malice, usually by demonstrating knowledge of falsehood, for an action to succeed, and the defendant is entitled to question the plaintiff regarding the truth of the matter. This is why the UK and Australia are much more attractive destinations for libel tourism than the US.

Suppression of speech based on issues of public order and safety is not generally permitted unless the speech amounts to a direct threat or incitement to commit lawless actions (Brandenberg v. Ohio, USSC, 1969). This is a much higher standard than most countries have, and is the reason most hate speech codes do not survive their first contact with a court. You can say that a certain politician deserves to be hanged, or that some disfavored group is less than human, but unless you try to form your listeners into a lynch mob, your only punishment is likely to be the contempt of your fellow citizens, which is available to them on the same terms of robust and vigorous expression.

Hugo Black

“Sometimes, I think a statement or a publication can go too far, and in that case, the right to be free of vilification will outweigh the right to freedom of speech.”

is dangerous. Why can’t I vilify someone if I want to? If I have the truth on my side and I am not calling for them to be physically hurt, then who is anyone to say I can’t speak my mind?

Many people in this society warrant being vilified.

And who decides what vilification is? Some super-sensitive politically correct Leftist? Yeah I can see that being fair.. they are the worst at vilification, the way they think that anyone who disagrees with them is Satan himself.

Al Gore and Hillary Clinton grew up socialist authoritarians – and they are American-born and raised. Unlike Ayn Rand.

From what I understand of US free speech law, it is not unfettered anyway (ie, those words which “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are able to be prosecuted by law: see Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). There always has to be a limit somewhere, in my opinion.

What this illustrates to me is that the US remains the most revolutionary nation in the world in its elevation of the individual as the source of sovereignty. The great risk to America is that the adoption of identity group politics threatens this unique creation.

You’ll find that skepticlawyer’s reaction is more … well … libertarian.

See also a great piece by yet another Australian lawyer and blogging identity Ken Parish.

By way of disclaimer, I am the administrator at both of these sites.