Wednesday, May 6, 2009

A Different View of Free Speech Across the Pond

The Washington Post reported today that Britain has banned 16 persons for "fostering extremism or hatred," including six Americans.  Among them is conservative radio talk show host, Michael Savage.  U.K. Home Secretary, Jacqui Smith, stated that Savage is responsible for "fomenting hatred" and has "extreme views" that are expressed in such a way that "it is likely to cause inter-community tension or even violence if that person were allowed into the country."  She stated that Britain is not willing to have such behavior in the country.  Savage reportedly responded to the ban by threatening a defamation suit against Smith, stating that he had never advocated any violence. 

Savage's statement refers to the legal standard for unlawful speech in the United States, which is sometimes expressed as incitement to imminent violence.  However, European governments have more power to restrict speech under the European Convention on Human Rights and Fundamental Freedoms (ECHR) than the U.S. government does under its constitution.  Thus, Savage's speech must be assessed under a different legal standard.  While Article 10 of the ECHR recognizes the right to freedom of expression, it also states that:

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Presumably, Britain would assert that Savage's speech may be banned because it is contrary to public safety and is likely to cause disorder.  Britain's civil libertarians quoted in the article have questioned the procedures by which persons are added to the list, but have not argued that Britain does not have the power to ban persons based on the content of their speech.  This result may seem quite foreign (pun intended) to an American audience accustomed to a legal system that is very protective of free speech, even hateful speech, as long as that speech is not likely to lead to imminent violent action.  However, Europe's more retrictive view may to some extent be explained by its history and experience with Nazism.


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