Sunday, April 03, 2011

Free speech, here and there

My buddy Roger Green asks an interesting question over on his blog: “Where should government draw the line regarding free expression?” The specific motivator was the recent US Supreme Court ruling upholding the right of that family cult “church” that has as its mission demonising gay people by picketing the funerals of US soldiers killed in action (crazy never makes logical sense). The Court ruled that these, er, um, people do have the right to protest at funerals.

I’m not going to rehash that particular case since the larger point—and the point of Roger’s question—is, where are the limits? Are they ever appropriate?

Yes, limits are acceptable, and every country on earth thinks so.

Many people in the US think there can never be limits on free speech because of the First Amendment to the US Constitution. Those people are wrong. First, it only applies to government itself and some specific other situations, but, in general, is not applicable to a completely private situation on completely private property.

The other, bigger, restriction is that some speech is not permitted in the US at all. We all know the aphorism that one cannot shout “fire!” in a crowded theatre, and that gets to the fact that speech that presents a clear and present danger can be outlawed. It’s one thing to say that elected official A is a worthless person who should not be in office (permitted) versus elected official A is a worthless person who should not be allowed to live, so let’s go kill him (not permitted). Also, “obscene” words cannot be uttered on the airwaves, nor can a pastie-covered female nipple be shown on television. So, some expression is restricted in the US.

Other countries do things differently. New Zealand has free expression guaranteed in the Bill of Rights Act and throughout legislation passed over the decades. It is a cherished, closely held right that’s vigorously defended by the people and the courts.

Even so, judges can suppress all information about someone accused of a crime, forbidding the publication of any information about the defendant while the trial is in process. Judges can continue that suppression after conviction in some cases, such as when revealing the criminal’s identity might reveal the name of the victim of a sex crime. Even though some judges do this too much, we nevertheless respect the law and few of us attempt to get around it.

Also, offensive language can be criminal in some cases (like in the US). Unlike the US, however, extreme language denigrating people because of their race, religion, gender, sexual orientation, etc., can be prosecuted. The key word there is “extreme” because New Zealand is far more lenient toward hate speech than Canada is (I’m not saying that’s good or bad, it just is).

The most important point, however, is the one Americans like the least: Countries have the right to work out for themselves what works best for them. If Americans doesn’t approve, well, we simply don’t care. We wouldn’t tell Americans how to run their country, what gives them the right to tell us?

Seriously: Why do Americans assume their approach is automatically superior to all others?


Roger Owen Green said...

Arthur - Americans have long thought they're better at everything, even when you were here. no metric system, more people executed this side of China, no civilized health insurance. It's American exceptionalism, even if it's exceptionally dumb.

Anonymous said...

I'm another American expat, though I've only been here in NZ for about 15 months now. For me, one of the strange things about New Zealand has been how free it is despite the absence of strong laws to guarantee freedom and limit the power of government.

New Zealand doesn't have a clear written constitution which limits the power of government. Quite the opposite, NZ observes the principle of "parliamentary sovereignty", which says that there is no higher legal authority than parliament. There's also no balance of power. The legislature is unicameral, the head of the legislature acts as the executive, and the judiciary has no power to overturn laws but only to interpret them. The Bill of Rights Act, unlike the First Amendment, could be repealed or amended by a simple majority in parliament, and it explicitly states that it does not give the judiciary the right to declare other laws invalid even if they contradict the freedoms it claims to guarantee.

And yet, for the most part the government here is more just and less oppressive than in the US. It flies in the face of everything I learned in high school civics class. ;)

Arthur Schenck said...

Roger: True, and I do remember that. But even I didn't full appreciate that the US could sometimes get things so wrong until I lived somewhere else. The odds of people living there knowing this must be pretty remote.

Anonymous: Welcome to New Zealand!!

You're quite right about the Bill of Rights Act, though the original intention was that it be entrenched. That would mean a 75% majority would be needed to amend or repeal it. It was also supposed to include judicial review.

From time to time, entrenchment is discussed, and in the past couple years judicial review has been suggested as well. As was pointed out in an excellent post on Public Address back in 2006, the reason we don't have those things is that "It comes down to the very thing that the Bill of Rights is trying to protect us from—the government."

Politicians, being politicians, don't want their power curtailed, even when it's in the people's best interest. And, there are plenty of cases when a stronger Bill of Rights would have been a good thing.

You're also right that this shaky arrangement works DOES fly in the face of what's taught. It shouldn't work, but, on the whole, it does.

Thanks so much for the great comment—feel free to comment any time! And, thanks for giving me an idea for another blog post…