How Free is Free Expression?

[Jason]

I noted in an earlier thread that the U.S. probably has greater freedom of expression than any other nation.
I read a troubling story today concerning problems in Canada concerning free expression:
Apparently a Candian journalist named Mark Steyn wrote a book called America Alone and printed a 5000-word excerpt in an article called "The Future Belongs to Islam" in October of 2006 in the Canadian magazine Maclean's. The article can be read on-line here. It's not very complementary of Islam, but it isn't very complementary of the Japanese, Americans, and Europeans in general either.
Mr. Steyn and Maclean's has been charged with a hate crime for this article before British Columbia's Human Rights Tribunal. It is also expected that he (and the magazine) will be charged by the Canadian Human Rights Commission - a commission before which no defendent has ever prevailed in its 31 years of existence.
Apparently BC's hate crime laws require only "a reasonable determination that the excerpt did express hatred and contempt towards Mulsims, and likely caused it to spread." The plaintiffs for the case want either a free identical-length article written from their own point of view, or a $10,000 contribution to a race relations foundation from the current case, and have expressed interest in the prospect of suing for "a few million dollars" in civil courts later.

This is a problem. In the U.S. the article would be protected speech - it's an opinion piece that clearly doesn't advocate any sort of criminal action against Muslims.
Why isn't it also protected speech in Canada?

[Ginnie]

I haven't read the article yet, but I will.

It seems that here your rights are protected so much that you can go to jail if you say the wrong thing about someone else. That's all that I can figure.
Political Correctness rules the day. .
But you can say just about anything about Americans it seems and get away with it. Some people have short memories.

I heard on the radio today that someone (a Canadian) said free speech was an American concept, not Canadian. I guess that person forgets why we fought those bloody wars in the past.

[Ginnie]

Just read the article.
Basic math isn't it?
I didn't find anything infammatory in it at all. I think it wouldn't hurt for most people to read it because it makes some very good points.
Why the big brahaha. Truth hurts?

[BertL]

Sometimes I hear people say stuff that is just so plain stupid, it makes me think that a bit less freedom of expression wouldn't hurt much.

[Jason]

Tolerating speech you agree with is not really tolerance, is it?

[Ian Pearse]

Personally, I think Free Speech is a misnomer. No matter how laudable an ideal, there will always be problems with incitement to hatred of one group or another, criminality, treasonous outbursts and other such-like issues that will get the people reading the item upset/angry/whatever. It's in the nature of humans, I think, to take umbrage at some things others say, even if they don't directly involve us. It doesn't mean we can't try, of course, but I truly think it's a target we will be doomed to never hit.

[echnaton]

There is defiantly a trend toward the "everybody play nice or the government make you play nice" mentality. Some Moslems, the ones that get featured in newspapers, are very touchy. I don't mid people getting upset and protesting, complaining or boycotting. I object to people using the police powers of the state to get revenge for there hurt feeling. I'd rather everyone had their say than government censorship.

From my understanding, most Islamic countries practice tight censorship, so I suppose that people that immigrated from those countries are not used to the more rough and tumble practices of free speech. We need to help them learn the system rather than have our society become more like the governments they left behind. Individuals insulting Jesus, Allah or whoever one has faith in is not a matter for the government.

[captain swoop]

In the UK it's the Christians who are trying to push laws stopping criticism or ridicule of religion, apparently the poor chrisitians are such a persecuted minority they need protection from comedians.

[raven]

Jun 12, 2008 16:37:52 GMT -4 Jason said:

Tolerating speech you agree with is not really tolerance, is it?

I agree with that absolutely, I call it the 'Right to be Wrong". Without it, all other rights are just for show. Democracy becomes a tyranny of the mob.

[The Supreme Canuck]

Ah, the Steyn thing, eh? Yeah, the problem here is the "Human Rights Commissions." They aren't actually courts of law and normal legal defences don't apply. But you can appeal to an actual federal court. So the problem isn't as big as it seems, though I'd like to see the things done away with.

Interestingly, Canada has a much broader right to expression than the US, in theory. Expression is defined as any attempt to convey meaning short of violence - not so in the US. Of course, Section 1 comes into it from there, but aside from aberrations like this Steyn mess, most Western democracies have comparable rights to free expression. In other words, I dispute that the US is alone at the top.

[Jason]

Well let's test it. Give me an example of something you can say in Canada that you can't legally say in the U.S.

[The Supreme Canuck]

Well, let's start with some hard data. I'll go with data from the Worldwide Press Freedom Index compiled annually by Reporters Without Borders. Canada ranked 18th in 2007 (down from 2006) and the US ranked 48th (up from 2006). Iceland was first and Eritrea was last.

Source

Now, if you look at the data (handily compiled in this world map on Wikipedia), you'll see that what I'm saying is pretty accurate. Functioning democracies tend to score on the blue side of the scale, developing democracies in the middle, and non-democracies on the red side of the scale. If you look at the ranking list itself, you'll see that the top twenty countries are all democracies, are mostly European (with a smattering of North American and Pacific), and there are many nations tied for the same position - that is to say, they have comparable levels of freedom of expression. Here is the methodology used in compiling the index.

Now, to compare the US and Canada:

RWB said:

There were slightly fewer press freedom violations in the United States (48th) and blogger Josh Wolf was freed after 224 days in prison. But the detention of Al-Jazeera’s Sudanese cameraman, Sami Al-Haj, since 13 June 2002 at the military base of Guantanamo and the murder of Chauncey Bailey in Oakland in August mean the United States is still unable to join the lead group.

Compared to:

“These developments are good news,” Reporters Without Borders said. “Perhaps the repeated calls to these democracies to behave in an exemplary manner has finally borne fruit. But we must remain careful and vigilant. Nothing can be taken for granted and we hope this trend will continue or even accentuate near year. We regret all the same that only two G8 members, Canada (18th) and Germany (20th), managed to be among the top 20.”

Now, to specifics. You can't support a boycott of Israel under the 1977 amendments to the US Tax Reform Act:

US said:

Conduct that may be penalized under the TRA and/or prohibited under the EAR includes:

* Agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies.
* Agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin or nationality.
* Agreements to furnish or actual furnishing of information about business relationships with or in Israel or with blacklisted companies.
* Agreements to furnish or actual furnishing of information about the race, religion, sex, or national origin of another person.

Implementing letters of credit containing prohibited boycott terms or conditions.

The TRA does not "prohibit" conduct, but denies tax benefits ("penalizes") for certain types of boycott-related agreements.

Penalties are harsh:

The EAR prescribes the penalties for violations of the Antiboycott Regulations as well as export control violations. These can include:
Criminal:

The penalties imposed for each "knowing" violation can be a fine of up to $50,000 or five times the value of the exports involved, whichever is greater, and imprisonment of up to five years. During periods when the EAR are continued in effect by an Executive Order issued pursuant to the International Emergency Economic Powers Act, the criminal penalties for each "willful" violation can be a fine of up to $50,000 and imprisonment for up to ten years.
Administrative:

For each violation of the EAR any or all of the following may be imposed:

*
General denial of export privileges;
*
The imposition of fines of up to $11,000 per violation; and/or
*
Exclusion from practice.

Boycott agreements under the TRA involve the denial of all or part of the foreign tax benefits discussed above.

The $10,000 maximum per violation specified in the EAA is adjusted periodically pursuant to law for inflation. The maximum civil penalty for any violation committed after October 23, 1996 is $11,000 per violation.

Source

The use of National Security Letters is also troublesome. They subpoena information related to, well, most things since the PATRIOT Act. They are tied to a gag order that makes it illegal for the recipient of the letter to admit it exists, which is a bit of a stumbling block for due process.

Now, I'm not saying any of this to demonize the US. I'd classify the United States in the top tier of countries when it comes to freedom of expression. There isn't much value in a list like the one I provided, I don't think, except to show that there are different categories - countries will vary naturally from year to year. Canada was in 16th in 2006 and in 21st in 2005. The US was in 53rd in 2006 and in 44th in 2005. Countries seem to fall within a band of rankings pretty consistently over the short term.

My point in showing the rankings was to say that the US is not alone in the top tier by any stretch of the imagination. In fact, it's at the low end of the top tier. That isn't to say that freedom of expression is severely restricted in the US, just that it doesn't top the list, and that, to answer your question, Canada is consistently significantly higher up the list.

[Ginnie]

Jun 17, 2008 14:51:34 GMT -4 Jason said:

Well let's test it. Give me an example of something you can say in Canada that you can't legally say in the U.S.

Some quotes from this page:
blogs.wsj.com/law/2008/06/12/us-v-canada-when-it-comes-to-free-speech/


When it comes to offensive speech, the U.S., in the words of Justice Oliver Wendell Holmes, tends to leave regulation to the marketplace of ideas

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.

Canadians do not have a cast-iron stomach for offensive speech

Americans as a whole are more tough-minded and more prepared for verbal combat

Seems like Canada and some other countries see some 'free speech' as falling into the catagory of 'hate speech'. So maybe you can say whatever you like in the U.S. I guess you can fight it out in court if someone tries to sue you.
And I couldn't imagine Westboro Baptist Church existing in Canada:
www.godhatesfags.com/

Uh, well we do have a Westbora Baptist Church but it is not affiliated with the one in the U.S.:
www.westborobaptist.ca/

[Ginnie]

The U.S. do things their own way;

At long last, prize-winning Associated Press photographer Bilal Hussein may get his day in court. The trouble is, justice won’t be blind in this case — his lawyer will be.

Bilal has been imprisoned by the U.S. military in Iraq since he was picked up April 12, 2006, in Ramadi, a violent town in a turbulent province where few Western journalists dared go. The military claimed then that he had suspicious links to insurgents. This week, Editor & Publisher magazine reported the military has amended that to say he is, in fact, a “terrorist” who had “infiltrated the AP.”

We believe Bilal’s crime was taking photographs the U.S. government did not want its citizens to see. That he was part of a team of AP photographers who had just won a Pulitzer Prize for work in Iraq may have made Bilal even more of a marked man.

In the 19 months since he was picked up, Bilal has not been charged with any crime, although the military has sent out a flurry of ever-changing claims. Every claim we’ve checked out has proved to be false, overblown or microscopic in significance. Now, suddenly, the military plans to seek a criminal case against Bilal in the Iraqi court system in just days. But the military won’t tell us what the charges are, what evidence it will be submitting or even when the hearing will be held.

Or This:

A journalist and a TV producer working on a piece about Katrina refugees have been charged with the crime of videotaping a “critical national security structure” in Louisiana.
On August 22, for LinkTV and Democracy Now! we videotaped the thousands of Katrina evacuees still held behind a barbed wire in a trailer park encampment a hundred miles from New Orleans. It’s been a year since the hurricane and 73,000 POW’s (Prisoners of W) are still in this aluminum ghetto in the middle of nowhere….

To give a sense of the full flavor and smell of the place, we wanted to show that this human parking lot, with kids and elderly, is nearly adjacent to the Exxon Oil refinery, the nation’s second largest, a chemical-belching behemoth.
So we filmed it. Without Big Brother’s authorization.
[Detective Frank Pananepinto of Homeland Security], in justifying our impending bust, said, “If you remember, a lot of people were killed on 9/11.”
Yes, I remember “a lot” of people were killed. So I have this suggestion, Detective — and you can pass it on to Mr. Bush: Go and find the people who killed them.

For your reading pleasure Jason:
www.efc.ca/pages/chronicle/recent.html

[Jason]

Jun 17, 2008 15:45:40 GMT -4 The Supreme Canuck said:

Well, let's start with some hard data. I'll go with data from the Worldwide Press Freedom Index compiled annually by Reporters Without Borders. Canada ranked 18th in 2007 (down from 2006) and the US ranked 48th (up from 2006). Iceland was first and Eritrea was last.

The main problem with using this as your index is that freedom of the press does not exactly equal the freedom of expression of private citizens. Press organizations have to answer to editors and networks in order to get their reports telecast or printed. Private citizens do not. A refusal of private companies like networks or newspapers to provide you with a platform is not a restriction on your ability to express yourself.

The index does raise the question of whether free expression that receives legal protection but is somewhat restricted in practice (either because the law is not being enforced or because of the actions of non-governmental bodies as in Iraq) should be considered by what is theoretically guaranteed or what is actually possible in practice. My original position was that the U.S. has the best protections legally.

RWB said:

There were slightly fewer press freedom violations in the United States (48th) and blogger Josh Wolf was freed after 224 days in prison. But the detention of Al-Jazeera’s Sudanese cameraman, Sami Al-Haj, since 13 June 2002 at the military base of Guantanamo and the murder of Chauncey Bailey in Oakland in August mean the United States is still unable to join the lead group.

Sami Al-Haj was not taken to Guantanamo because of any reports he made, but because of aid he gave to terrorist groups. Plus he was released last month, even though he made false accusations against the U.S. about how he was treated in captivity (including a false "flushed Koran" story).
Chauncey Bailey was not murdered by the U.S. Government. Should the Netherlands take a hit to it's Freedom of Expression index because Theo van Gogh was murdered there by a Muslim extremist?

Now, to specifics. You can't support a boycott of Israel under the 1977 amendments to the US Tax Reform Act:

That isn't a limit on free expression. You can support the boycotting of Israel all you want without penalty. It's only if you actually discriminate against Israel in your business transactions that you get into trouble with this law.

The use of National Security Letters is also troublesome. They subpoena information related to, well, most things since the PATRIOT Act. They are tied to a gag order that makes it illegal for the recipient of the letter to admit it exists, which is a bit of a stumbling block for due process.

You're stretching. They do not relate to "most things". NSLs and sealed court documents might be considered restrictions on free speech but are quite rare - 10,000 NSLs per year over the past seven years since the PATRIOT Act went into action is still a tiny fraction of the total U.S. population.

My point in showing the rankings was to say that the US is not alone in the top tier by any stretch of the imagination. In fact, it's at the low end of the top tier. That isn't to say that freedom of expression is severely restricted in the US, just that it doesn't top the list, and that, to answer your question, Canada is consistently significantly higher up the list.

I disagree that an index of press freedom is an authoritative source on whether one nation has greater freedom of expression than another.

So what can you say in Canada that you can't legally say in the U.S.?