A Note From Our Editor: American Law And Freedom Of Expression -- By: John Warwick Montgomery
A Note From Our Editor: American Law And Freedom Of Expression
As is well known, your Editor is an internationalist, and, in his capacity as an English barrister and member of the Paris bar, tends to defend the values of the great European legal systems (as well as classical French cuisine).
There are, however, times when it is important to stress the superiority of American law at its point of greatest strength: the defence of civil liberties. Our nation was founded very largely out of a concern that the citizen should be able to speak his or her mind and not be persecuted because of political, religious, or other opinions potentially or actually offensive to others. Interestingly enough, the separation of church and state, which occurred in France at the beginning of the 20th century, was based on the desire to keep the church out of the political realm; the American separation of church and state in the 18th century, by way of the Virginia Bill of Rights and the 1st Amendment to the Federal Constitution, had the reverse motivation: to keep the state from meddling in religious matters, especially in attempting to control the free expression and practice of believers.
In America, unless a belief or opinion poses an immediate danger—unless it is likely to cause a breach of the peace—it can receive public expression. (The breach-of-the-peace qualification parallels the adage, “Free speech does not give one the right to cry Fire! in a crowded theatre.”) Even when the particular opinion or belief is obnoxious or patently false, the right to manifest it orally or in writing remains. Thus, in l978, U.S. Federal Court upheld the right of a neo-Nazi organisation to express its beliefs by marching through Skokie, Illinois, even though that Chicago suburb was a predominantly Jewish area. The American principle is that a civilised populace should be mature enough to put up with what they find obnoxious, and the way to deal with false or absurd ideas is to show them to be such in the same public sphere where they are being presented. To repress such expressions of belief or opinion is merely to drive them underground and to suggest that they may, after all, have genuine credibility.
The European approach, however—at least following the racial atrocities of the Second World War—has been very different. In the contemporary law of most European countries, “incitement to hatred” statutes have criminalised a wide range of opinion statements which in the United States would be regarded as within the protected ambit of free speech. I limit myself to the French context, but close parallels can be found in most continental European legislation and practice.
In 1951, the great French Freedom of the Press Act of 29 July 1881 was amended to criminalise, with a p...
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