VOLTAIRE’S SPIRIT – “I do not agree with what you have to say, but I’ll defend to the death your right to say it” – lives on militantly in the First Amendment to the US constitution. The right not just to express contrary views, but to be obnoxious, or use “hate speech”, are essential pillars of the US Supreme Court’s often-controversial, libertarian reading of the provision.
This was demonstrated again last week when, by eight-to-one, it ruled that a small Kansas church should be allowed to protest at the funeral of a marine who died in Iraq with placards proclaiming “Thank God for Dead Soldiers” and “God Hates Fags”. The group recently declared that 9-year-old Christina Taylor Green, a victim of the Tucson shootings, was “better off dead”.
The court has inevitably found itself defending the rights of an assortment of the most vile: the pornographer, the Nazi marching through Jewish areas, the racist, the seller of DVDs depicting bloody dogfights, and now a publicity-seeking church which says soldiers’ deaths are God’s answer to tolerance of homosexuality. “Speech is powerful,” Chief Justice John Roberts argued. “It can stir people to action . . . and inflict great pain. But under the First Amendment we cannot react to that pain by punishing the speaker.”
The court’s creditable willingness to do the unpopular thing in defending the paramount value of free speech above other rights distinguishes it markedly from European courts. The case law of the European Court of Human Rights, for example, does not see “hate speech” in political debate as protected under Article 10 of the Convention on Human Rights, as Jean-Marie Le Pen discovered last year. The court found inadmissible the far-right politician’s appeal of a French court fine for inflammatory remarks about immigrants.
The US court has taken its reasoning to some uncomfortable ground – appalled liberals say its ruling last year in Citizens United,equating making political donations with free speech, gives the green light to unlimited corporate donations and stymies attempts to curb the influence of money on politics.
The court rightly insists, however, that speech about public affairs warrants “special protection” and its willingness to defend press rights means the media is considerably freer in the US from the deadening hand of libel and defamation laws. Much opinion is by definition seen as protected, and the court has long held that papers have the right to be wrong, as long as they did not err deliberately or with negligence. Europe please copy.