What makes our country unique? What accounts for American exceptionalism? The gun culture epitomized by the Second Amendment should come to mind. Equally exceptional is the First Amendment, which states: “Congress shall make no law abridging ... the freedom of speech, or of the press.”
Of course, freedom of expression is not especially American; it’s a global human right. Article 19 of the Universal Declaration of Human Rights is notably more expansive, albeit textually, than our First Amendment in proclaiming everyone’s right to free speech.
But what sets us apart from others in regard to freedom of speech is how hate speech — the provocative expression of hatred for a particular race — is treated as a right. Hate speech is legal in America. In 1929, U.S. Supreme Court Justice Oliver Wendell Holmes memorably spoke of “freedom for the thought that we hate.”
Why does our approach to hate speech differ from that of the rest of the world, which makes hateful speech a crime? It has more to do than anything else with our radical presumption: Tolerating even obnoxiously racist speech is more salubrious to our open democracy than permitting the government to dictate what may and may not be said.
Most Americans still embrace the notion that freedom of speech and the press will facilitate the discovery of truth. Nonetheless, does our entrenched trust in the free marketplace of ideas remain valid in an Internet era, when seemingly innocuous expressions cause terrorist acts of violence? Should safeguarding hate speech serve as a constitutional marker for us, in distinction from Canadians and Europeans?
In the globalized 21st century, more of us are wondering if the two-track approach (i.e., United States vs. the rest of the world) to hate speech is sensible enough. This question is compellingly relevant now. As former New York Times columnist Anthony Lewis, an astute First Amendment observer, noted in 2007, “It is not easy for me as it once was to believe that the only remedy for evil counsel ... should be good ones.”
Lewis was increasingly concerned about the changed environment in which speech can be lethally more destructive than in the past. In the cyberworld, the United States is the go-to haven for many hate groups abroad seeking to generate and spread hate messages to the world.
Meanwhile, the experiential distinction in Canada and the European Union between freedom of speech and a particular form of speech should inform us in addressing Cornell law professor Steven Shiffrin’s provocative question of 2016: “What is wrong with the First Amendment?”
The University of Oregon, which has confronted its own share of hate speech controversies, is refreshingly proactive in dealing with freedom of speech and expression globally. Indeed, it is well positioned to offer global perspectives on free speech — the UO has about 3,000 international students and dozens of faculty and staff from 90-plus countries.
A global freedom of expression panel at UO in early March highlighted competing perspectives and experiences from several foreign-born students’ and faculty members’ home countries. Its follow-up event at 4 p.m. Thursday at the William W. Knight Law Center will focus on “Global Perspectives on the Regulation of Hate Speech.”
Toby Mendel, executive director of the Center for Law and Democracy in Canada, will speak on international law and Western democracies’ experience with hate speech as a constitutional law issue. Mendel, a leading expert on freedom of expression and information, will showcase the pros and cons of global approaches that are substantively different from American law.
The international discussion of hate speech at UO will enable us to reimagine the actual or perceived relevance of American thinking on freedom of speech to the world.
Our free speech jurisprudence as an outlier has become less influential globally. But few will dispute the inspirational value of the First Amendment to many countries — not necessarily because we Americans may have the answers to hate speech-related challenges, but because we have often risen to the challenges.
Kyu Ho Youm is the inaugural holder of the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication.