NCPA - National Center for Policy Analysis


June 13, 2008

In the United States, under the First Amendment, newspapers and magazines can say what they like about minorities and religions -- even false, provocative or hateful things -- without legal consequence.  The United States, in its treatment of hate speech, as in so many other areas of the law, takes a distinctive legal path, says the New York Times.

"In much of the developed world, one uses racial epithets at one's legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk, and one urges discrimination against religious minorities under threat of fine or imprisonment," Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, wrote in a recent essay called "The Exceptional First Amendment."

"But in the United States," Professor Schauer continued, "all such speech remains constitutionally protected."  For example:

  • Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech.
  • Israel and France forbid the sale of Nazi items like swastikas and flags.
  • It is a crime to deny the Holocaust in Canada, Germany and France.


  • Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.
  • By contrast, American courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply distressing to the many Holocaust survivors there.

The United States' distinctive approach to free speech, legal scholars say, has many causes.  It is partly rooted in an individualistic view of the world.  Fear of allowing the government to decide what speech is acceptable plays a role.  So does history, says the Times.

Source: Adam Liptak, " Unlike Others, U.S. Defends Freedom to Offend in Speech," New York Times, June 12, 2008.

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