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Liberty for All

Free speech is the American way.

Apr 19, 2010, Vol. 15, No. 29 • By ELIZABETH POWERS
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Extreme Speech and Democracy
edited by Ivan Hare and James Weinstein
Oxford, 500 pp., $175

Liberty for All

For James Madison, author of the Bill of Rights, “the People, not the Government, possess the absolute sovereignty.” Freedom of speech and the press, the right to assemble and petition, set down in the First Amendment to the Constitution, were instruments by which the people would exercise “censorial power” over the government, not the other way around. What has been clear this past year, however, as protesters exercised their First Amendment right to oppose a government takeover of health care, was how little understood is the principle of popular sovereignty among the media—or, indeed, much of our governing class. 

Popular sovereignty, as William Anderson recently wrote in these pages, distinguishes America from all other advanced countries and “stands with hardly a seconding voice throughout the contemporary international community.” Paternalism, whether of a benevolent or a tyrannical sort, is laid down in the DNA of most governments, and the rest of the so-called West is no exception. While the press in Western Europe still functions as a check on government, individual citizens suffered from “democracy deficit” long before the European Union added flesh to that term. Extreme Speech and Democracy powerfully documents the differing assumptions of government in the United States and the rest of the world in regard to the issue of speech. Even the title of this book telegraphs the enduring problem that elites, the class that formulates government policy, have with the “people.”

Extreme Speech has its origin in a 2007 conference at Cambridge. Contributors include lawyers representing eight national legal traditions, with the majority from Great Britain, as well as “policy advisers,” psychologists, a philosopher, and even one playwright. It contains several interesting tables, running to 20 tightly spaced pages, of free speech cases and legislation, both international and national, as well as a table of three pages of conventions and international instruments. Arab and African nations are parties to such conventions, but all the cases and legislation discussed here are products of democratic countries. Among the subjects treated are religious dress, Holocaust denial, racial hatred, disabilities, obesity, homophobia, xenophobia, and the glorification of terrorism. (Nothing, however, on global warming skepticism.)

It may be the preponderance of lawyers among the contributors, but there is throughout a certain obfuscation—think the guarded equivocations of our Lawyer-in-Chief—even on what constitutes “extreme speech” or “hate speech.” Does it include only racial epithets and fighting words and the like; or are discussions of, say, the merits of affirmative action instances of speech that “stigmatize” minorities? Extreme Speech and Democracy is not exactly a ringing defense of free speech, much less speech of the extreme variety.

Interestingly, the Mohammed cartoons controversy of 2005-06, one of the major free speech issues of our time, is treated directly in only a single chapter. The controversy is of interest for revealing the fault line between our free speech jurisprudence and that of Europe. Justice Holmes’s “clear and present danger” test of 1919—referring to convictions of war protesters during World War I—has long given way to laws hostile to regulating public discourse on the basis of the content expressed. Europe is a different story: The protests over the Mohammed cartoons were worldwide news; less well known is that Muslim groups in Denmark filed a complaint against the Jyllands-Posten for offenses committed under sections of the Danish criminal code concerning blasphemy or degradation with malice toward persons based on (among other things) race, color of skin, national or ethnic roots, or faith and sexual orientation.

Despite the right to freedom of expression contained in Article 10 of the European Convention on Human Rights and Fundamental Freedoms (which came into force in 1953), the European Court of Human Rights is also, according to Ivan Hare, a barrister at Blackstone Chambers in London, “the most comprehensive and developed system for supranational human rights protection.” It protects, inter alia, the right to life; freedom from inhuman and degrading treatment or punishment; freedom from slavery and forced labor; and the right to education. Additional protocols have abolished the death penalty, provided protection for aliens, and established a “general prohibition on discrimination.”

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