Few countries would have the balls to give the rights embodied in the US Constitution

Great Debates
1

In this Thread the question, among other questions, is posed, “Does a political party with a paedophile agenda have a right to assemble and express its opinions and try to change existing laws?” (not the OP’s words)

It is pointed out that these rights are denied to anyone or any groups who wish to further an agenda of Holocaust denial (in the EU).

When an American poster asked about free speech laws in the EU, Szlater provided the text of Articles 9 and 10 of the European Convention on Human Rights.

In reference to part 2 of Article 10:

pkbites responds:

To which aldiboronti responds:

<bolding mine>

So often when left-leaning Americans criticize the American Government, they lament that all the countries that we would consider our peers are so much more progresive than the United States is. A sentiment often expressed when discussing Health Care and Gay Marriage.

A sentiment that has been so drill into my head that I was very surprised to read aldiboronti’s comment.

I, for one, think that it is appalling that Holocaust Denial is treated as a crime in Europe. That people are sitting in prison for verbally stating their views is in stark contrast to my idea of a free society.

Legislation against Holocaust Denial may be one example to support the view that “Few, if any, countries would have the balls now to give people the rights embodied in the US Constitution.”

What are some other examples from first world nations with Western styled governments?

Examples which fall under the category of Free Speech?
Examples which fall under categories other than Free Speech? (suspecting Gun Control to be a big issue)

OR . . .
What arguments could be made that it is nonsense to state that “Few, if any, countries would have the balls now to give people the rights embodied in the US Constitution”?

2

These ‘few if any countries’ that are willing to currently dole out these rights, don’t include the U.S., right? I mean, you may say these EU restrictions are crap compared to 18th century U.S., or the idealized U.S. on paper, but how do they compare to the U.S. of 2006?

3

The thing to realize here is that the United States is notable in the supreme importance it gives to individual rights and freedoms, as opposed to, say, collective rights and freedoms. Americans are used to this, and basically consider it a condition for democracy, while it in fact isn’t, but is a characteristic of American-style democracy. Holocaust denial is illegal in several European countries. This is because tolerating this kind of speech might make it more popular, increasing the power of far-right groups and eventually destabilizing the country. They consider that ensuring social stability and enduring democracy for their citizens as a whole is worth taking some individual freedoms alone.

Of course, Americans consider this unacceptable and think that these countries will never truly be free and democratic until they remove all obstacles to free speech, and maybe some obstacles to economic freedom – like high taxes. Europeans think they’re pretty well off the way they are, and when they look at the condition of US citizens, they don’t always like what they see, so some of them they think that Americans are the ones who are not truly free. So really, the fact isn’t that these countries don’t have the balls to ensure for their citizens the rights guaranteed in the US constitution. It is that different groups of people, different nations if I may say, have different values.

Obviously aldiboronti’s personal values are more in line with the American model, but that doesn’t make him representative of his country’s citizens.

4

Taking some individual freedoms away, not alone, of course. I should re-read my posts when I preview, but I’m so afraid of my computer rebooting while I’m reading that I hit submit as soon as I can. :o

5

Also, I will have to admit that I’m starting to wonder how strongly the average American citizen is willing to fight for the right to express thoughts that he or she disagrees with. The SDMB is not representative of the US citizens as a whole, and the events of the last few years have put in my mind the idea that many American citizens are willing to put aside some freedoms that previously were considered fundamental to American society, to facilitate fighting the war on terrorism.

6

Perhaps the Constitutional lawyers here could show how case law has interpreted the first amendment.

In its bare form it reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Historically amd currently, what limits have been put on this by interpretation.

Libel? Shouting ‘Fire’ in a theatre. Hate Crimes. Sedition. etc.

From the list offered, what case law in the US refers to:

the interests of national security,
territorial integrity
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
for maintaining the authority and impartiality of the judiciary

The restrictions placed on the European Convention on Human Rights are upfront, and when use is made of these exceptions, it must be clearly noted what and why.

7

Let me start as an amateur:

Sedition Act

*
The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 passed at the urging of President Woodrow Wilson, who was concerned any widespread dissent in time of war constituted a real threat to an American victory. Subversive activity had assisted in overthrowing the Russian Czar in 1917, and contributed to the Easter Rising in Ireland in 1916. Subversive activity in Great Britain was less successful.

The Sedition Act forbade Americans to use “disloyal, profane, scurrilous, or abusive language” about the United States government, flag, or armed forces during war. The act also allowed the Postmaster General to deny mail delivery to dissenters of government policy during wartime.

The Sedition Act was an attempt by the United States government to limit “freedom of speech,” in-so-much-as that “freedom of speech” related to the criticism of the government during war.

The Espionage Act made it a crime to help wartime enemies of the United States, but the Sedition Act made it a crime to utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the United States’ form of government.

Socialist Eugene V. Debs was sentenced to 10 years in prison under this law. U.S. citizens including members of the Industrial Workers of the World union were also imprisoned during World War I for their anti-war dissent under the provisions of the Sedition Act. Anti-war protestors were arrested by the hundreds as speaking out against the draft and the war was illegal under this law.

In his 1941 book Censorship 1917, James Mock noted that most U.S. Establishment newspapers “showed no antipathy toward the act” and “far from opposing the measure, the leading papers seemed actually to lead the movement in behalf of its speedy enactment.”

The Sedition Act was repealed in 1921. Although the Sedition Act was upheld by the US Supreme Court in Schenck v. United States, most legal experts view the Sedition Act as being antithetical to the letter and spirit of the United States Constitution, specifically the 1st Amendment of the Bill of Rights.*

So, the Supreme Court held that this was constitutional!

8

*Supreme Court did not consider a single case in which it was asked to strike down a federal law on the basis of the free speech clause until the twentieth century. The Alien and Sedition Acts of 1798 were never ruled upon by the Supreme Court, and even the leading critics of the law, Thomas Jefferson and James Madison, argued for the laws’ unconstitutionality on the basis of the Tenth Amendment, not the First Amendment.

After World War I, several cases involving laws limiting speech came before the Supreme Court. The Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause “insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States.” Under the Act, over two thousand prosecutions were commenced. For instance, one filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918 went even farther, criminalizing “disloyal,” “scurrilous” or “abusive” language against the government.*

9

*The “clear and present danger” test of Schenck was extended in Debs v. United States, 249 U.S. 211 (1919), again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a “clear and present danger” to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a “natural tendency” to occlude the draft.

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York, 268 U.S. 652 (1925). Writing for the majority, Justice Edward Sanford suggested that states could punish words that “by their very nature, involve danger to the public peace and to the security of the state.” Lawmakers were given the freedom to decide which speech would constitute a danger.

Freedom of speech was influenced by anti-Communism during the Cold War. In 1940, Congress enacted the Smith Act to replace the Sedition Act of 1918, which had expired in 1921. The Smith Act made punishable the advocacy of “the propriety of overthrowing or destroying any government in the United States by force and violence.” The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in the case Dennis v. United States 341 U.S. 494 (1951). The Court upheld the law in 1951 by a six-two vote (Justice Tom C. Clark did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes’ “clear and present danger” test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to “wait until the putsch is about to be executed, the plans have been laid and the signal is awaited”, thereby broadly defining the words “clear and present danger”. Thus, even though there was no immediate danger posed by the Communist Party’s ideas, their speech was restricted by the Court.

Dennis has never been explicitly overruled by the Court, but future decisions have in practice reversed the case. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States, 354 U.S. 298 (1957). The Supreme Court ruled that the Act was aimed at “the advocacy of action, not ideas”. Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.*

10

Actually, you don’t have the right to shout anything in a theater. Most theaters are privately owned. The First Amendment applies to government interference with freedom of speech.

11

I do know that. I was referring to Justice Oliver Wendell Holmes Junior who used this example in his opinion in Schenck where he wrote:
“The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”

It was mentioned half in jest.

Back to the serious matter. :slight_smile:

12

I’m currently taking a class for retired folks at The First Amendment Center in Nashville. The following information is from their website.

From a 2005 State of the First Amendment Survey:

About two hundred of the old geezers that I’m with took this year’s survey. If I remember correctly, a much smaller percentage of us thought that the First Amendment goes too far in the rights it guarantees. Seems to be a very liberal crowd.

It’s really sad to see that half of those surveyed in 2002 thought that the First Amendment went too far. I wonder what part they were willing to give up.

I’m surprised there are still words that are banned on broadcast channels by the FCC. I think that some of you will see that disappear altogether.

13

A question…

is it always good to have the “rights” that you mention?

In Spain we have crimes like “hate speech” and “verbal threats of physical harm”. Those fly in the face of the notion that “anybody can say anything”. But the thing is, I don’t think anybody should be able to say anything. I don’t think it’s wrong to fire someone for calling the Production manager a “cunt”. I don’t think it’s wrong to jail someone for yelling “I’m going to get you, you fucking freak!” at someone else. The threatened person’s right to live, and to live in peace, may supersede the first person’s right to say whatever he feels like saying.

Rights aren’t absolutes - they conflict with other rights the whole time.

14

The thing is, the government isn’t the one stopping you from calling the manager a cunt. I don’t think we’d be all that concerned if a company decided to forbid employees from proselytizing or passing out political literature but we’d be pretty darn upset if the government tried making laws to prevent these things. Free speech means having to accept the consequences of your speech. Call the manager a cunt and don’t be surprised when you’re fired for insubordination. You have a right to say it, in that the government won’t generally haul you off to jail for it, but you might lose your job.

You’re not allowed to threaten someone’s life in the United States.

Typically I find that rights don’t interfere with one another. As the saying goes “my right to swing my arms ends at the bridge of your nose” or something like that. In other words the right to free speech doesn’t mean you can threaten someone’s life or avoid being fired from a job for calling the boss a cunt.

Marc

15

Spain is a “socialized country” in that things like “insulting a co-worker is grounds for being fired instantaneously and without benefits” is actually in a law. It’s the same law that regulates maximum hours someone can work without rest and things like that.

And that’s kind of my point. In the end it doesn’t matter what the Constitution (of the United States, Spain or French Guyana) say… it’s the application. Yes, the Constitution of both Spain and the US say people have the right to free speech. But in both cases there are limits, and in the end the limits are marked by the bridge of other people’s noses.

The EU Constitution was wishy-washy simply because it tried to be too large an umbrella. The Spanish Constitution is wishy-washy on some points; doesn’t even mention others which are considered “implicit” as per the Constitutional Tribunal mandates. For example, the SC doesn’t mention that it’s illegal to discriminate by age; or by size; or by nationality; or by sexual orientation; or for being trans… but the TC says all those and anything other than “legal status and ability to do the job” are illegal.

And at the same time, some countries grant rights that many US citizens don’t get. Like the right to get a heart transplant without putting the house in hock.

16

Not everywhere in the EU, and not everywhere specifically. In the UK we’ve got our new, shiny, and flawed laws on inciting racial hatred, but we don’t have anything that actually bans holocaust denial.

17

To me it seems the big divide between the USA and Europe (big-assed generalisations to follow) is that in Europe collective rights, such as the right to health care regardless of personal circumstances, trumps the absolute property right to grasp every cent you earn in your tight little fists. So rights do clash. Economic and social vs atomised individual and politics is the art of compromising these competing rights to strike a balance. In the UK, politics since the end of the seventies has been about rebalancing the postwar consensus on the welfare state.

In Europe we place more emphasis on the collective benefit we all reap through a more generous welfare system and the duty of care we think we owe each other as members of the same society and funded through redistributive taxation.

In the USA that duty of care is exercised more through charities and churches and volunteering and Europeans don’t think that works well enough or consistently enough. With the health care system being the usual example. To europeans the notion of being bankrupted by an illness is a shocking denial of a basic human right.

As a european I’m happy to give up some of my rights to be a selfish, grasping git for the right of other to have a minimum standard of health, education etc and I see it also as in my self interest in case things go wrong in my life for no fault of my own.

Rights in Europe are generally seen as more than narrowly defined individual rights. And more and more we’re coming to see that effort is needed to ensure rights bestow responsibilities on individuals too. Something the old postwar welfare state lost sight of.

Absolute individual rights that admit no restriction on property and income and absolute social/economic rights that admit no limititation on the fiat of the state will always conflict. Hence the saying that politics is the art of the compromise and the nature of this compromise will be strongly influenced by the particulars of the society and its position in the world.

18

I have no direct comment to your post, but I want to say that, to me, this isn’t the most useful comparison.

Considering the current controversies over human and civil rights in the United States, to me the interesting question isn’t “how do current European countries compare to a revolutionary document written by a new country in the 18th century” but “would the same rights be passed in the United States today?” I don’t think so… you can’t really talk different eras and have a meaningful debate.

It’s controversial in many European countries, and, if you look at the history of the matter, these laws were passed in the years after the Second World War at the same time people were (nominally) being thrown out of office for Nazi affiliation and so on. I don’t think it’s something people are really proud of, it was a crisis law which may have outlived its usefulness and cost-benefit.

19

In my opinion the difference between ‘unlimited’ and ‘limited’ basic rights is in large part one of definition.

A-mode (implicit exceptions): Right to free speech unlimited. Acts using speech that clearly cannot be allowed (e.g. fraud, ordering a hit) are not considered a free speech issue.

E-mode (explicit exceptions): Unlimited right to free speech would include e.g. right to commit fraud or right to order a hit. So there must be exceptions to right of free speech.

Another difference:

America: in the context of constitutional rights, only active infringement by government considered.

Europe (to different degrees): infringement of constitutional rights can be actively by government, passively by government (by allowing infringement by third parties), or by third parties.

20

This is true - but analagous things are going on in the UK I don’t like in the form of extending blasphemy laws, kow-towing to Islam by bringing criticism of it under incitement to racial hatred laws etc.

IMHO there should be absolutely no restriction whatsoever on what you can say on any religion and even though I loathe the British National Party, prosecuting the leader for laying into Islam in a party meeting, no matter how loathesome his words, was a crock. And proposing to change the law again because a jury found him not guilty is shameful.

I’d love a First Amendement equivalent here so that religious nutters of all stripes are told once and for all to just damn well suck it up. As far as I’m concerned there is no such thing as a ‘right not to be offended’ which Blair seems hell-bent on creating.

What about my right not to have my intelligence insulted by religious claptrap?

And Holocaust deniers should just be shamed, mocked and buried under an avalanche of facts.