Life in the Old Amendment Yet

I owe Adam Liptak, who covers law for The New York Times, an apology. For awhile he has been running a series on American legal exceptionalism, the ways in which we do things differently from most other advanced industrial democracies. Most of them have made the U.S. come off looking bad – articles about our penchant for choosing judges by election, our high prison population, etc., contrasted to the more modern way things are done elsewhere. I thought to myself that if he really wanted to see what makes the U.S. different, he might look at its solid grounding in individual liberty – the idea that the rights of the individual, not the needs of society, are the foundational principle here. Would he, for example, write about the way other societies have substantially pruned back the freedom of speech?

Well, he has. The article notes the Mark Steyn trial catastrophe, and notes that it would be impossible here. To my surprise and delight, the comments to this point are overwhelmingly supportive of freedom of speech. True, a few clever ways of gutting civil liberties are conjured up. (One poster named Tiziana argues that speech should not violate the (imaginary) “right to his/her honor, his/her personal and family intimacy and his/her right to his own image (the right to be white, yellow or black, fat, old, ugly or gay)”). But given that the Times is a left-wing paper with a left-wing audience, it is reassuring to see that on the left too there are many who believe that we ought to be a country that believes that the remedy for undesirable speech is more speech.

One could quarrel with some of the details of the article – the print headline on the jump page carelessly refers to what is under discussion as “words of hate.” It is the creation of an arbitrary category of speech called "hate speech" that generates the problems - attention is diverted to whether or not something said qualifies as such, and since those on the receiving end of criticism tend to litigate much more aggressively than those who do not, putting these questions into the legislative arena (or a quasi-judicial one where the traditional rights of defendants do not hold, such as the Canadian human-rights tribunals, is so dangerous) tend to result in an ever-more expansive definition of "hate speech." (This is why the requirement that a defamation plaintiff prove falsity and damage is so important.)

Still, and in contrast to exam answers I get more often than I would like from my students, the belief in freedom of opinion appears to be still breathing.