Slippery slopes

by Henry on November 10, 2003

David Bernstein responds to Matthew Yglesias’ suggestion that righties have an “unhealthy obsession” with oddball groups on university camps, and in so doing, jumps off the rhetorical deep end. It turns out that the takeover of the universities are just “a step in the authoritarian radical Left’s broader agenda.” And that agenda? Government-enforced authoritarianism, just like they’re successfully introducing in Canada. Yes, that’s right. Canada. Bernstein bolsters his argument with a quote from a professor in Western Ontario, who describes Canada as a “totalitarian theocracy” ruled by the “secular state religion” of political correctness.

Now I’m all for occasional doses of overheated language to enliven our political discourse, but Bernstein’s rhetoric verges on the bizarre. Canada has adopted some (relatively moderate) free speech restrictions in its Charter, but by most reasonable definitions of the word, it isn’t an authoritarian society. Nor is it likely to become one anytime soon. There’s a rhetorical slippage in Bernstein’s argument, between government-enforced restrictions on free speech and political authoritarianism/totalitarianism. They’re rather different things. States can have some restriction on free speech and remain democratic. France and Germany have done it for fifty-odd years.

Bernstein’s hyperbole gets in the way of his argument, which is perfectly defensible. It’s not unreasonable to oppose government restrictions on free speech. However, lurid denunciations of these restrictions as creeping totalitarianism, or as initial steps toward implementation of the radical left’s master plan are … odd. I don’t think David Bernstein is a candidate for the tinfoil hat brigade. I don’t agree with most of what he has to say, but he seems fairly rational, and occasionally indeed thoughtful. Which is all that any of us can aspire to being. But this time, he’s gone over the top.

Update: David Bernstein responds with a comeback that he seems to think is a gotcha, but which (a) rests on a rather strained interpretation of Canadian law, and (b) doesn’t really address my criticism. I’m not asking whether or not Canada’s legislation on free speech is a good idea; I’m questioning whether it’s appropriate to describe it as theocratic totalitarianism. And so far I’m not seeing anything to convince me that he’s right.

{ 62 comments }

1

Matt 11.10.03 at 6:41 pm

Bernstein’s “..ultimate concern is that the radical Left would like to bring to society as a whole the kind of authoritarianism they are constantly trying to, and sometimes succeeding in, bringing to universities”. In other words, the basic objection is to what he believes the left –wants–. What the left -does- or whether it succeeds or fails is somewhat beside the point.

2

Andrew Edwards 11.10.03 at 6:58 pm

As a Canadian, I was interested to learn that I live in a totalitarian theocracy.

A totalitarian theocracy, apparently, which lets university professors publicly denounce it in absurdly overstated language. But a totalitarian theocracy nonetheless.

I hope this message reaches you. The state censors are everywhere.

In fact… they’re coming in now…. noo!!! They’re dragiing me away!!!!! HELP!!! CALL FOR HELP!!!!

DON’T BELIEVE THE LIES! CANADA IS A DICTATORSHIP! TELL THE WORLD, DAVID! TELL THE WORLD!!!!!!

3

David 11.10.03 at 7:43 pm

Get your “Aluminum Foil Detector Beanie” NOW!

http://zapatopi.net/afdb.html

4

Doug 11.10.03 at 8:07 pm

Doesn’t that sort of argument sound creepily like projection? The things the authoritarian radical Right would like to do, but usually doesn’t say in front of a broader public?

5

Neel Krishnaswami 11.10.03 at 8:45 pm

I’m certainly not going to generalize about the whole left, but the behavior of campus left at MIT in the mid-90s certainly left me with the impression that they were a bunch of authoritarian wannabes. The problem I saw arose as the result of the following dynamic: for whatever reason, some group would make some claim of victimization. The campus administration, which operated according to a silence-is-golden / controversy-is-bad-PR corporate mentality, would try to shut down the argument in order to keep things quiet.

Given a similarly spineless administration in a mostly-conservative university, I would of course expect it to try stifling left-liberal arguments, too. But really, that’s an irrelevant hypothetical. I saw leftists deliberately try to use authoritarian means to shut down speech they didn’t like — so I call them authoritarians. Happily, they pissed off enough real liberals that they didn’t succeed (I once attended a speech code bonfire, where angry students burned copies of the campus speech code), but they failed in their aims only because people ignored Matt Yglesias’s advice and didn’t dismiss the authoritarian left as trivial or irrelevant.

6

pathos 11.10.03 at 8:46 pm

I am distressed by the statement: “Canada has adopted some (relatively moderate) free speech restrictions in its Charter.”

They likely seem moderate to you because they do not prohibit anything you might want to say. But any prohibition of speech, no matter how moderate, creates a chilling effect that leads the cautious and law-abiding to say less than the absolute maximum they might want to and be legally-permitted to say.

Prohibiting pro-Nazi speech in Germany may potentially be understandable, but I’d vote against it (it just keeps you from knowing who the Nazis are, I’d say.) Moving beyond that, and it’s well down the slippery slope.

On an issue of reasonable debate, there can be no “reasonable” restrictions on speech.

7

markus 11.10.03 at 8:56 pm

but pathos that’s the point of the post. It is possible to have speech restrictions and still have a free society. (besides, in Germany Holocaust denial, the Hitler greeting and some other symbolism from the 3rd Reich are forbidden. In fact the “Hitler was a monster but he built decent motorways (“Autobahnen”) and successfully fought unemployment” sentiment was widespread for many years after the war and of course legal.)

8

Shai 11.10.03 at 9:07 pm

I audited a course that discussed the relevant case, here. I don’t think the restrictions are as wide as Bernstein would construe them. see, for example:

r.v. keegstra
a summary of keegstra
Lawrence Sumner, Should Hate Speech be Free Speech?
and another, similar and relevant (but not mutally exclusive) american case:

nike v. kasky, etc., etc.

9

Shai 11.10.03 at 9:07 pm

I audited a course that discussed the relevant case, here. I don’t think the restrictions are as wide as Bernstein would construe them. see, for example:

r.v. keegstra
a summary of keegstra
Lawrence Sumner, Should Hate Speech be Free Speech?
and another, similar and relevant (but not mutally exclusive) american case:

nike v. kasky, etc., etc.

10

Ophelia Benson 11.10.03 at 9:16 pm

Something that always interests me about these debates – interests and also puzzles, and I mean that straight rather than disingenuously – is that free-speech absolutists usually don’t address what the actual consequences of speech can be – can be and have been, very recently. They don’t for instance talk about the use made of radio in both Rwanda and the Balkans to foment genocidal furies that had been either asleep or non-existent before. So, what about that? It’s not as if the worst case scenario is people getting their feelings hurt, people getting offended, people getting their self-esteem mussed up. It’s people getting converted into huge piles of corpses. I’m not saying I favor speech codes (or that I don’t) but I am saying I think discussions of the subject ought to include all the possibilities – in fact, likelihoods.

11

Jonathan 11.10.03 at 9:18 pm

Free speech is no where completely free–the famous example being yelling “Fire” in a crowded theater. I believe the Canadian restrictions have to do with hate speech, which is an extension of that principle. The “slippery slope” is a rhetorical device, not a real thing–a society can illegalize abuse of minorities and still have plenty of real, meaningful free speech.

Things like having our library and book store records secretly available to the authorities or assertions that dissent is un-American, by contrast, are real threats to free speech because they are attacks on the free flow on information and political discussion.

12

Shai 11.10.03 at 9:46 pm

I haven’t looked at this in a while, nor do I have any legal training, but I think there’s a strict test for truthfulness and proportionality, or there would be, anyway.

Irshad Manji’s The Trouble With Islam wouldn’t count, nor would criticism of Israeli’s or Palestinians. IIRC, in a sept 11 related unfair job dismissal case, a statement by a mechanic that the people who died “deserved it” because American bombing in the balkans, didn’t count, etc. So in practice I think the application will be pretty narrow, and even if there is wiggle room for a slippery slope, it’s already considered in the relevant cases, and bound to be taken into account, even where obiter dicta.

13

Shai 11.10.03 at 10:42 pm

I looked into his statements about “it’s become illegal to place an advertisement in the newspaper quoting biblical passages” and I believe this is entirely wrong; see section 319(3) of the charter:


(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

I am myself uneasy about content based restrictions because of a potential chill on free speech, but the discussion in keegstra demonstrates a sensitivity to this problem

14

Shai 11.10.03 at 10:43 pm

sorry, i meant 319(3) of the criminal code

15

Brett Bellmore 11.10.03 at 10:49 pm

Actually, Markus, it’s possible to have speech restrictions and an otherwise free society. But to the extent you have those restrictions, you’re not free.

Obviously, refering to Canada as a totalitarian theocracy was a bit of hyperbole, and intended as such. Political correctness isn’t actually a religion, and Canada is merely authoritarian in some respects. (While being less so than the US in other respects, I must admit.)

But it is fair to examine the trends, and they’re not good.

16

markus 11.10.03 at 11:15 pm

Actually, Markus, it’s possible to have speech restrictions and an otherwise free society. But to the extent you have those restrictions, you’re not free.
as jonathan pointed out, I’m also not free to yell fire in a crowded theatre. Dunno but you, but I’m fine with the fact that my freedom is bounded by the freedom of others or their right to their own body and life.
Sorry, but I just don’t get this “freedom of speech is good, any restriction is evil” line you seem to be adhering to.
I’m sure we would agree that “burn that witch” is not acceptable in front of an angry Salem mob, simply because it will likely result in getting the witch burned, and thus make the orator an accomplice in the killing. (Or does anyone want to argue that the orator is free of guilt and responsibility?)*. Obviously, we -as a society- can apply the same measure we apply to the theatre to the witch if we choose to do so, on the grounds that these words actually do cause harm. (As ophelia benson pointed out above, incitements to racial hatred and violence _do_ have an effect.)
Beyond physical violence comes psychological violence, and while mobbing has real physical consequences, I’m open to debate whether it makes sense to ban speech in these cases and am inclined to think it does not.
Still, resorting to a moral absolutism of “free speech” in all cases seems (sorry) ignorant to me, because there is demonstrably a second good, that of corporeal freedom and integrity involved, and I doubt anyone can make the case that freedom of speech is “obviously” the more important good.
I’m however open to discussion on the matter.

* a IMHO better example just occurred to me: accusations of rape.

17

Shai 11.10.03 at 11:15 pm

“to the extent you have those restrictions, you’re not free.”

this, to me, is too general a statement, because you seem to be considering only one freedom (speech), but even there it’s arguable, given some speech may stifle the ability, and therefore freedom of speech of other, usually minority, groups

18

serial catowner 11.10.03 at 11:23 pm

How do you distinguish between an insane person and one who isn’t? Usually by asking if what they’re saying makes any sense.

F’r example, in the U.S. last year 650,000 people were arrested for marijuana. Every distinguished commission that has examined this question has concluded that this polcy of arresting people for pot is INSANE.

In Canada cops are griping because of recent court decisions making pot virtually legal.

And Bernstein thinks Canada is the totalitarian state? Well, I hope for his sake he doesn’t really believe what he’s saying and try something stupid, like wearing a ‘No War’ t-shirt in the mall where he bought it.

19

Shai 11.10.03 at 11:28 pm

I also believe there’s something utopian in the idea that speech is free in the absence of content restrictions. newspapers and television networks frequently decline to run content that is critical of, or offensive to the editorial board, advertisers, subscribers, or viewers. in that case restrictions are even more liable to be arbitrary than some government bogeyman.

20

Brett Bellmore 11.10.03 at 11:55 pm

GAHHH! That’s falsely cry fire in a crowded theater.

Sorry, pet peeve of mine… Why do they always omit the “falsely”? Holmes was taking about fraudulent speech!

21

Ophelia Benson 11.11.03 at 12:23 am

So, Brett, now that you’ve dealt with your pet peeve, how about answering the more substantive questions that have been raised? Do you take free speech to be an absolute? If so, what about those people on the radio saying ‘Go out there and kill those Tutsis, and don’t forget to take your machetes with you’?

22

markus 11.11.03 at 12:29 am

good point mr. bellmore, care to make more on topic? ;)

(that aside, AFAIK it isn’t hate speech if it isn’t also fraudulent. But oh, I just see you might light a match and cry FIRE and it wouldn’t be fraudulent and you’d be allowed to …)

23

Brett Bellmore 11.11.03 at 1:23 am

Yes, I do take freedom of speech to be darned near absolute, properly subject only to prosecution after the fact, if it turns out to have been an element of an act of fraud, or involved you in some other real, non-speech crime.

First, there’s a great deal of wisdom in that old children’s saying about sticks and stones. Hurt feelings may be real, but they’re catagorically different from broken bones, and deserve precious little legal protection, lest we all lose our freedom to people who insist on walking around poised at a hair trigger to be offended. Thick skins, you could say, are one of the prices of liberty.

Should false statements be protected? Darned right they should, or else we license the government, which I trust scarcely at all, to declare sentiments it dislikes to be false. And suddenly you find you can’t even argue with that declaration, without committing the crime!

And, yeah, maybe the trial will clear you. Whoop dee doo; It’s not like they make you whole after you’re aquitted; Just charging someone with something, even if they’re eventually cleared, can be a stringent punishment indeed. I don’t like the idea of giving prosecutors yet another excuse for levying that punishment on people they don’t like. Selective prosecution makes that too easy already.

Should political advertising be exempt from regulation? Yeah. Better that, than letting incumbants control what the people trying to unseat them can say.

Cherish, and keep sacred, the five most beautiful words in the English language: “Congress shall make no law…” Got that? NO. Nada. Zip. Zero. As in, “what part of no don’t you understand?” The words “unless”, and “except” don’t appear in that amendment, for all that the courts seem to see them there.

And for those of you who find some part of “no” hard to comprehend, just remember: The tools we give the government to pursue those aims we share, inevitably fall into the hands of those who have aims we abhor.

Markus, Holmes with his “falsely cry fire” remark, was refering to fraudulent speech uttered under circumstances where it was not subject to timely dispute, and would cause immediate harm. And this was the excuse for allowing it to be punished. (Despite that “no”.) The joke, of course, is that he used that remark to excuse banning speech which had none of those characteristics. In other words, he was abusing his own criteria to censor speech he didn’t like.

24

Seth Edenbaum 11.11.03 at 1:26 am

It’s not the left that promotes these sorts of things. And anyway it has no power to do so. Limits on speech, whether in the US or Germany et al. are promulgated by liberals who need to convince the rest of us that they’re as sensitive and moral as they imagine themselves to be. We’re all good Germans, yes? How quaint.
In the US, P.C. rhetoric appears in reference to race, gender and sexual orientation much more than class. It’s a form of political activism that doesn’t contradict the imperative of the wallet. The 60’s was the last time the middle class looked at the world outside its own experience, now it dedicates itself to itself and calls it activism.

Every time I hear right wing attacks on the Clintons- crude neoliberals to the core- I laugh.

25

Micha Ghertner 11.11.03 at 1:31 am

I’ve never heard anyone actually argue that people should be free to fraudulently yell fire in a crowded theater. This is clearly a case where speech directly leads to physical violence. But when you start to include things like “psychological violence” in your speech restrictions, you’ve moved into the arbitrary subjective realm of hurt feelings and offended sensibilities.

While there may be an argument for speech restrictions in places like Rwanda and the Balkans, where ethnic hatred is likely to lead to genocide, there is no excuse for such restrictions in countries like Canada and the UK.

26

Ophelia Benson 11.11.03 at 1:32 am

But Brett, that totally fails to answer the question I raised. I explicitly said I was *not* talking about hurt feelings. What do you say about people who go on the radio (or stand on a corner or in a pulpit or a mosque, for that matter) and incite people to go out and murder other people? Who then go and do just that? This is not some fantasy situation, it happened, more than once, in more than one place, within the last decade. It’s not something one can just brush aside as if it were not there. If you insist on simply ignoring it, who is going to take seriously any of what you say? I’m certainly not. All you’re doing is convincing me what I always suspect, that free speech absolutists simply refuse to admit the implications of what they say.

27

Ophelia Benson 11.11.03 at 1:38 am

“While there may be an argument for speech restrictions in places like Rwanda and the Balkans, where ethnic hatred is likely to lead to genocide, there is no excuse for such restrictions in countries like Canada and the UK.”

Hmm. How do you know ahead of time which those countries are? What happened in the Balkans was not expected. That sounds like hindsight talking. ‘Oh sure, those places, where people are always committing genocide, but not here, where that never happens, you know, civilized places like Canada and Germany – um, wait – ‘

And then the people in the ‘places like Rwanda and the Balkans’ may not agree with people in places like Canada that it’s only people in places like Rwanda and the Balkans who commit genocide, and pass laws accordingly.

It’s not that I’m advocating speech restrictions, I’m advocating an honest discussion of same, and it seems to be surprsingly hard to get one.

28

Micha Ghertner 11.11.03 at 1:47 am

Hmm. How do you know ahead of time which those countries are?

When things start looking bad, that might be a good time to implement temporary restrictions on speech – speech that is likely to incite ethnic violence. Which, by the way, we already have restrictions on here in the US. As far as I know, however, Canada and the UK never bothered to make any such argument, perhaps because no such argument could have been made. When people justify these restrictions by using labels like “psychological violence” and “hate speech” rather than “incitement”, that’s a pretty good indication that they are on the wrong track.

29

Ophelia Benson 11.11.03 at 1:55 am

Yes, I agree (more or less anyway) about the hate speech and psychological violence stuff. But I have serious doubts about the ‘when things start looking bad’ idea. Once they start looking bad it’s probably far too late for those temporary restrictions – just for one thing, it seems likely that the people in power are the ones making things look bad and are not going to allow any damn restrictions! Things started looking bad in the Balkans and especially Rwanda remarkably quickly.

In other words, I think it’s just too easy to forget that this kind of thing can happen, that it can happen fast, that it can get way the hell out of control long before anyone even tries to do anything about it. Ask all those stiffs in Srebrenica.

30

gollum 11.11.03 at 2:03 am

dear micha, would you do me a little favour? Stop thinking in stupid mind-body dichotomies. Even if you consider psychological harm minor, it _has_ bodily consequences. If you’re mobbed (and not just disliked) at work and can’t get out for whatever reasons you _are_ going to die a few years earlier on average IIRC. If it helps you, you can think of depression as an imbalance of neurotransmitters that makes you stupid and kills your motivation. It’s not a good picture, but maybe an understandable one. Like it or not, but the mind-body dichotomy was killed by science, and brushing that aside with reference to “sticks and stones” makes you look like a moron.
That said, I agree speech should not be restricted in these cases, but I’d insist on the right of the victim to sue for harassment under certain circumstances (malice, falsehood, actual damage done).

31

Nicholas Weininger 11.11.03 at 2:04 am

My pet peeve about the “fire in a crowded theater” analogy is that none of the people who quote it approvingly mention what it was originally used to justify.

The case it comes from is Schenck vs. U.S., one of the worst exemplars of the Wilson-era assault on civil liberties. Holmes was using the analogy to justify the arrest of a man for distributing anti-draft pamphlets– that is, for peaceful political speech, generally the sort of speech that “absolutists” and non-“absolutists” agree is most deserving of protection.

The point is not that one shouldn’t be punished for shouting “fire” in a crowded theater. The point is that slippery slope arguments about free speech are not “absolutist” paranoia; it is historically true that reasonable-sounding analogies to reasonable-sounding restrictions can be used to justify terrible repression.

32

Micha Ghertner 11.11.03 at 2:10 am

Sure, I don’t dispute that by then it may be too late for those temporary restrictions. But on the other hand, you seem to be making the assumption that had there been speech restrictions in Rwanda, disaster would have been diverted. I don’t buy that either. When genocide takes place, things are usually pretty fucked up in ways that speech restrictions wouldn’t do much good, and would probably do considerable harm as those in power are able to use these restrictions to stifle dissent.

In a perfect world, people would be nice to each other and we wouldn’t have genocide. But passionate faith in the efficacy of the government to restrict only that speech you deem dangerous or disturbing is not likely to get us to that perfect world, and these restrictions will ultimately be used in ways you would have least expected or desired. We cannot assume that once we give government the power to place content-based restrictions on speech, they will use this power wisely in ways we would have intended.

33

Micha Ghertner 11.11.03 at 2:18 am

Gollum,

You have insulted me greatly and made me cry. Your argumentative response, brimming with hatred and vicious name-calling, will not stand. My fractured inner psyche is bleeding.

Be informed that I will be pressing charges against you for this “harassment”. I highly suggest that you cease and desist before any further charges are brought against you.

34

Ophelia Benson 11.11.03 at 2:34 am

Uh oh, the mind-body problem; I’d better get out of here before I get too confused.

No, I promise I don’t have ‘passionate faith’ in government restrictions, micha. As I’ve said, I’m not advocating either way – only trying to get all the factors into the discussion.

As a matter of the historical record, though, I don’t think you’re right about Rwanda – at least about the idea that the radio broadcasts didn’t really make the genocide happen. From what I’ve read, they were indeed a huge factor. True enough, maybe regulations wouldn’t have worked. But what happened didn’t work well, either…

35

arthur 11.11.03 at 2:35 am

Journalist Ron Rosenbaum had a piece about the experience of being in a theatre that caught on fire. Audience members closest to the fire were extremely reluctant to shout fire during a Shaespeare soliloquy, even though it would be truthful and possibly life-saving speech (despite the delay, everyone got out safely).

36

Brett Bellmore 11.11.03 at 2:36 am

Ophelia, what’s your point, that you think one of the Democratic candidates ought to be rotting in jail? Or maybe that the Secret Service ought to be rounding up members of the Democratic Underground? Catch my drift? Don’t ask for something that will come back to bite you!

You can “incite” until the cows come home, and it doesn’t hurt anyone. It’s the guy who reacts to the incitement by perpetrating violence that does the actual harm. It’s an insult to that person’s moral autonomy to blame his act on somebody else. I’m VERY reluctant to treat any sort of speech as a criminal act, short of direct involvement in a criminal conspiracy, such as speech giving directions to a hitman.

37

markus 11.11.03 at 2:49 am

thanks mr weininger, I didn’t know that. (For others in a similar position, I’d recommend Dershowitz and this un-attributed essay)
concerning your argument The point is that slippery slope arguments about free speech are not “absolutist” paranoia; it is historically true that reasonable-sounding analogies to reasonable-sounding restrictions can be used to justify terrible repression. it is well taken, though it is a single case and thus merely anecdotal evidence. Besides, I believe no-one here is arguing that we should be gung-ho about restricting free speech. The absolutists are arguing we should never restrict free speech … Well actually they are not arguing for their case IMO. They seem to rest on the morality of their position and defend it by bringing up counter-examples and attacking arguments against their position. I’m not sure the non-absolutists have the burden of proof, but then again, I’m probably talking to Americans and from that point of view I guess the burden of proof is placed correctly. Anyway, I was going to say, the non-absolutists argue that there are instances and types of speech where greater goods are involved and that in these rare cases a restriction of free speech makes sense.
Again, I believe this view is not controversial when we consider incitement to violence or falsely crying fire in a crowded theatre. Or is it? For if it isn’t, it should be possible to come up with a mutually satisfactory set of narrow criteria that allow restriction of these types of speech.

38

a canadian 11.11.03 at 2:50 am

“Bernstein bolsters his argument with a quote from a professor in Western Ontario, who describes Canada as a “totalitarian theocracy” ruled by the “secular state religion” of political correctness.”

HA-HA-HA-HA! rolls in aisle. That’s just fear mongering garbage most likely based on an overly sensational quote taken out of context.

Barring the occassional time when the United States ships our returning citizens to prisons in totalitarian states, Canada is a fairly free state. It’s not perfect, but we’re working on it.

39

Shai 11.11.03 at 3:10 am

micha:

your argument about temporary restrictions seems circular to me, but only because this is being discussed only in the abstract without examples.

in r.v. keegstra for example, “The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students”

my general point would be,

(1) if you defend his dismissal (and criminal charge, but leave that aside for now) on the basis that his anti-semetic teachings were in some capacity state sponsored, that wouldn’t necessarily hold for private institutions

(2) if you defend his dismissal on the grounds that his anti-semetic teachings are obviously false, you’re already biting the bullet by accepting content restrictions, in at least some scenarios

(3) if you argue he shouldn’t have been dismissed for teaching his students an anti-semetic and obviously false version of history, then you’ll likely have to argue that there’s something wrong with the Canadian charter of rights and freedoms, and (probably) the Universal Declaration of Human Rights. And I think left open to the argument that you,

(i) simply assume unrestricted speech will work out for the best (accompanied by the assumption that some restrictions will work out badly via some very slippery slope), or,

(ii) the social norms are good enough to deal with offensive and obviously false speech (in the case of keegstra that would leave open a loophole for him to claim unfair dismissal), perhaps forgetting that racial discrimination laws often stand in as a proxy in these sorts of situations (but iirc, many states do actually have hate laws)

The last point I’d like to make is that these restrictions aren’t as categorical as its opponents would like to believe, and section 319 of the criminal code has provisions that except all sorts of speech reasonable persons would consider hate speech, like the examples I mentioned before, and in fact, the keegstra judgement does consider at length the possible chill free speech would suffer, so you’d have to quarrel with their reasons there; and on the philosophical side I’d like to hear any disagreements with the content of sumner’s essay, or any arguments showing the provisions restricting the advocation of genocide (“any acts committed with intent to destroy an identifiable group —such as killing members of the group, or deliberately inflicting conditions of life calculated to bring about the group’s physical destruction”) in section 318 of the Canadian criminal code, are problematic (I can’t think of any hypothetical situation off the top of my head where such statements have anything to contribute to society).

as far as I know, these rules have been invoked in very few circumstances (further “Only the most intentionally extreme forms of expression will find a place within s. 319(2)”), and the arguments to the contrary assume the government will use these provisions to unreasonably control what people say about others, is silly given the case law so far

as I said before, I am uneasy myself about content restrictions (but also mindful about cases like nike v. kasky). so, being undecided, im being a devils advocate here, at least in the capacity that I’m unconvinced by the absolutist arguments thus far..

40

Micha Ghertner 11.11.03 at 3:47 am

Shai, I wasn’t trying to justify temporary restrictions; merely allow for the possibility that in some extreme, rare circumstances (like imminent genocide), they might be necessary.

As for the specific case you mention:

1. Schools are tricky things. If its a private school, I would defend the dismissal for any reason whatsoever, under freedom of association. If it’s a public school, things get more complicated. But then, I don’t support public schools on principle, so I find such debates as interesting as deciding whether I would rather be killed with a gun or a knife.

2. Incidentally, I’m not familiar with the Canadian charter of rights and freedoms, but I highly doubt I would agree with most of it (assuming it posits any positive rights at all). I certainly reject the Universal Declaration of Human Rights based on my aversion to positive rights.

3. I oppose all racial discrimination laws that apply to the private sector.

4. I’ve never understood why speakers need to justify their speech based on whether or not it “contribute[s] to society.” Since when did the autonomy of the individual speaker become a mere means to society’s ends?

5. arguments to the contrary assume the government will use these provisions to unreasonably control what people say about others, is silly given the case law so far

Isn’t this precisely what Bernstein is disputing in his post? That these laws have been abused, in both Canada and the US?

6. I’m not sure what you mean by “absolutist”, but I don’t consider myself as sharing the absolutist position compared to Brett Bellmore, for example.

41

Eric Rasmusen 11.11.03 at 4:31 am

The lack of free speech in Canada is not just in the statutes– at least one case has actually led to punishment.

A certain Hugh Owens of Saskatoon was fined $4500 (by a
one-woman panel– no jury right here) for quoting Leviticus in a newspaper ad. The
newspaper was fined the same amount. He appealed to a federal court, which confirmed
his guilt and said he deserved to be punished.

For more, see my weblog for Nov 10 at

http://php.indiana.edu/~erasmuse/w/03.11.10c.htm

42

David W. 11.11.03 at 4:35 am

A few people have mentioned the Rwanda genocide radio broadcasts as a tough free speech case. I’m close to being a free speech case absolutist (although I acknowledge serious trade-offs in some cases and hardly think the issue is as simple as many free speech advocates seem to), but this is not something that ever should have been protected. It was part of a conspiracy to commit murder. They were used, for example, to identify the location of fleeing Tutsis who were trying to escape the massacre. They were also used as threats–broadcasting the message that moderate Hutus (ie, Hutus who didn’t approve of the genocide) were deserving of death, and those Hutus with Tutsis in their lives–as spouses, for example–better get with the program if they want their lives to be spelled. The threat, in the latter case, was clear: kill your wife or be killed. I can’t imagine a principled defense of that particular speech act.

I beleive someone in the US government, not sure which branch, trotted out the “free speech” argument when the idea of scrambling these broadcasts came up. I seriously doubt this argument was presented in good faith. The Clinton administration was searching, indeed grasping for reasons to not get involved, and this silly argument was useful toward that end.

43

Brian McAllister 11.11.03 at 4:41 am

As a Canadian lawyer (and in reference to a point made above – I won the case that gave us *legal* – not virtually legal – pot for several months this summer), I think I can provide some perspective to this from a legal standpoint.

The rights and freedoms contained in the Canadian Charter are all subject, by section 1, “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Our charter is relatively new, and was drafted with the benefit of the hindsight of the American experience. It is a recognition that the rights contained in the Bill of Rights are not as absolute as they would appear on paper. Whereas the american jurisprudence has imposed limits on rights through intellectually dishonest exercises, the Canadian approach is to be more expansive in the definition of rights, but then to subject the limit imposed to the scrutiny in section 1. For example, on the issue of obscenity, the American case law avoids the First Amendment protection by disingenuously disavowing that obscenity is speech. The Canadian approach is to recognize that obscenity may be a form of expression, but to subject the expression to the scrutiny of section 1. In other words, the result is frequently the same, except that it is arrived at through a more transparent (and more intellectually honest) process.

I say this without defending many of the restrictions to which Canadians are subject. For instance, I disagree entirely with the suppression of hate speech, because I think it is counterproductive. In Canada, for instance, it is essentially a crime to promote the denial of the Holocaust. This reeks of “one truth” totalitarianism. More importantly, I think that the best way to deal with Holocaust revisionism is to subject it to intellectual scrutiny and expose the fraudulent pretences that lead to it. The same principle applies to most hate speech. On this point, I am much more comfortable with the US approach.

However, as a Canadian living in a border city, I can only laugh whenever I hear Americans proclaim the US as the most open and free country in the world. The marijuana example cited above is the most obvious refutation of that: Tommy Chong is serving *9 months* in federal prison for selling glass PIPES! With NOTHING IN THEM!!! Similarly, I recently represented a 20 year old kid who sold an ounce of pot to an undercover cop. He received a conditional discharge – meaning he will not have a criminal record. A similarly situated kid in Alabama who sold 3 ounces of pot to a narc got 26 years…I understand that all but 2 of them were subsequently suspended, but that is absolute lunacy.

I am totally comfortable in stating that Canadians, notwithstanding that their constitution may explicitly recognize restrictions that the American constitution does not (but which the American judiciary has “read in” in any event), live in a more free and democratic society than do our southern neighbours (except I live in Windsor, which is actually geographically to the south of Detroit).

44

Shai 11.11.03 at 4:42 am

micha:

it seems your political orientation is more extreme than I assumed — at least from my perspective — but I’d like to get a sense of what “freedom of association” entails for you here. some examples:

(1) if i’m fired from my job after my boss learns i voted republican, where entirely irrelevant to the responsibilities expected in the job description, you don’t see anything wrong? shouldn’t i have some sort of positive right to associate freely where there is no conceivable harm to the employer, the employees, or the business? (keep in mind my JS Mill, et al isn’t sharp, so I may be missing something, but please if you do answer, respond to the practical question)

(2) assume i’m gay, and assume being gay is less like a choice and more like a natural predisposition. you don’t see anything at all wrong with unfair dismissal based on natural sexual orientation, with emphasis on the case where it’s irrelevant to the duties of and capacities demanded from the job?

45

seth edenbaum 11.11.03 at 4:57 am

Random thoughts. I’m tired and I’m lazy.
Has anyone discussed the rights of con men yet?
The right to do ‘X’ holds unless it infringes on the rights of others. Speech does not often act in such a way… but is there a right to perjury?
No

…Hate speech is not by its nature an incitement to riot. Restrictions on it are therefore unreasonable.
You all seem to be arguing as if there is an answer, but there is none. That’s why law is based on argument more than on results. It’s a structured debate. Justice is ‘imperfect’ but philosophically profound in it’s imperfection. It’s a problem that can’t be solved.
Brent B is trying to solve that problem by putting some discussions off limits. Sorry kiddo, but speech can become action, and action may be proscribed. Speech, in the form of incitement to riot, perjury, or fraud, is considered action, and therefore actionable.

Part 2: Language is a hegemonic force and it’s crushing my individuality. RUN AWAY!!! RUN AWAY!!!

Part 3: My hate speech.
I hate people who demand laws that are so strict and so mechanical that they remove any need for intelligence and any risk of failure from human collective activity. Brent B is arguing for such a law. He’s Opus Dei in reverse. But people like collective endeavor, and without it they’d starve. We make mistakes- in judgment- and we should have the right to make them, because we like to make decisions ourselves.
Language is a slippery slope, but I really don’t think we should ban it.

When does the slope get too steep, and what ices it up? Good question.
But I think Canada’s restrictions are wrong.

46

Brian McAllister 11.11.03 at 5:06 am

Sorry to follow up so soon, but a couple of additional points are worth noting. The University of Western Ontario professor quoted is Robert Martin, who is a bit of a wingnut – and I say this as someone who is more philosophically libertarian than most Canadians.

Moreover, as much as I dislike the appeal to authority tactic I am about to employ, there is generally a problem when non-lawyers report on legal issues, in that a lot of context gets lost. For instance, the post above cites a Saskatoon case that was unsuccessfully appealed to federal court. I’m sorry, but that cannot be true, for procedural reasons(or if it is correct, it would explain why the appeal was unsuccessful). Moreover, it is not the citing of the bible, per se, that was problematic, but the content of the words. I say this without defending the notion of hate speech restrictions, which I disagree with for reasons I articulate in my previous post.

I would conclude by saying that I also disagree with the notion in general that the erosion of civil liberties in Canada has been continual and is getting worse. It is important to remember that we did not even have Charter rights until 1982, so that prior to that there was no constitutional speech guarantee at all.

47

Shai 11.11.03 at 5:30 am

in response to what prof. rasmusen wrote, i’m definitely alarmed, because now that I re-read 319(3)(b) (“if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject”) the phrase “in good faith” leaves a lot of wiggle room for subjectivity (section 1 notwithstanding), although it remains to be seen(?) whether an actual argument (rather than quotations from the bible for authority) based on religious texts or traditions will fall in the same trap. and although i’m less alarmed than some, given my opinion that the religious arguments against homosexuality are entirely without merit, i’d definitely concede that this is a troubling application of the law

48

Jonathan Ichikawa 11.11.03 at 5:40 am

Sorry to chime in late here, but isn’t there conceptual space for a society to be both totalitarian and democratic? How does the fact that there are democratic countries with free speech restrictions relate to the question of totalitarianism?

It seems to me that democracy is very much not the issue here.

49

Henry Farrell 11.11.03 at 6:17 am

Brian – it’s nice to have someone who knows their stuff posting comments on this. A quick query about something that I’ve been wondering about – what are the implications of the striking down of the “false news” law in the Zundel case for this set of issues, and for the interpretation of the Charter in cases involving free speech? I have my own ideas, but I’m not a lawyer …

50

raj 11.11.03 at 1:03 pm

Markus: Germany doesn’t just have speech limitations regarding Holocaust denial and Nazi symbols. It also has legislation prohibiting speech considered Volksverhetzung. Volksverhetzung might be considered “incitement,” except that it has been applied against at least one political party in connection with some rather benign signs that they posted in the recent mayoral election in Berlin.

51

Ophelia Benson 11.11.03 at 3:35 pm

“I beleive someone in the US government, not sure which branch, trotted out the “free speech” argument when the idea of scrambling these broadcasts came up. I seriously doubt this argument was presented in good faith.”

Really?! Wow, I didn’t know that, or if I did I’d forgotten it. Does anyone know any more about that? I’ll have to try to research it…

[The broadcasts in question are the ones in Rwanda that ordered and directed the genocide, in case anyone’s lost.]

52

Micha Ghertner 11.11.03 at 4:06 pm

Shai,

My views are certainly extreme in some areas (such as freedom of association), but not very extreme with regard to free speech – I rarely disagree with the ACLU on a free speech issue.

On to your questions:

if i’m fired from my job after my boss learns i voted republican, where entirely irrelevant to the responsibilities expected in the job description, you don’t see anything wrong?

No. You were never entitled to your job. Without a long term contract, either party should be free to exit the contract for any reason, no matter how frivolous, without penalty. If you were an employee and you found out that your boss is a nasty Republican, and this did not make you happy, is there anything wrong with you quitting?

shouldn’t i have some sort of positive right to associate freely where there is no conceivable harm to the employer, the employees, or the business?

Of course not. Why should you have any positive right to associate with people who do not wish to associate with you?

assume i’m gay, and assume being gay is less like a choice and more like a natural predisposition. you don’t see anything at all wrong with unfair dismissal based on natural sexual orientation, with emphasis on the case where it’s irrelevant to the duties of and capacities demanded from the job?

No, I don’t see anything wrong in these kinds of cases, in the sense that the law should prohibit discrimination. I am a Jew and I would not want there to be a law that prohibits anti-semites from firing me on account of my ethnicity/religion.

53

a Canadian 11.11.03 at 5:12 pm

I am a Jew and I would not want there to be a law that prohibits anti-semites from firing me on account of my ethnicity/religion

Sorry to lower the level of discussion, but that’s disgusting. I suppose you wouldn’t have a problem with being refused housing, education or perhaps being subject to antisemetic immigration laws. How about you square off your home and just put up a sign that says “Welcome to my Ghetto – please wipe your feet”?

I’m more than pleased to live in a place which demands that people treat eachother in a particular way – even if it forces some people to be do things they don’t want to do. They should be doing these things anyway. Forcing racists to to be fair and just is a good thing. I don’t care what racists and antisemites want to do.

It’s trite, but sometimes the freedom of a few must be restrained so that we may all live in a better society. I’m happy that I live in a place where it is against the law to refuse space to a potential tenant based on race or pet ownership.

Welcome to Canada – where Peace, Order and Good Government is to be found. We’ve been around for a while and we’re certainly not less free than the United States. We’ve both been plauged by sexism and racism, so don’t claim the US constituation is superior. They’ve yeilded a fairly similar result, only our history is less bloody.

54

David W. 11.11.03 at 5:51 pm

Ophelia, I think I heard that on the PBS Frontline special on the Rwanda genocide.

55

Ophelia Benson 11.11.03 at 6:20 pm

Thanks, David. I’ll see if I can find more about that on the PBS site. I’m pretty sure I saw that Frontline, but forgot that bit. I think I’ve forgotten (some might say ‘suppressed’) a lot about Rwanda. I’ve just been re-reading Gourevitch’s book, and there is a lot I’d forgotten. The US wasn’t content just to refuse to send troops itself, it actually persuaded other people not to send troops either. Oy, oy, oy…

56

Ophelia Benson 11.11.03 at 6:54 pm

Well I’ve found this, anyway –

>* Forcibly stop the broadcasting of specific incitements to kill or injure minorities or other targeted groups by jamming the airwaves or providing the equipment and political support for others to do so.

It’s one of a list of recommendations by Holly Burkhalter on behalf of Physicians for Human Rights testifying before Congress about what should be done in cases like Rwanda. The implication at least is that radio-scrambling wasn’t done.

The link is here.

57

Micha Ghertner 11.11.03 at 10:46 pm

A Canadian (November 11, 2003 05:12 PM),

You seem to have trouble distinguishing between the private discrimination and public (state) discrimination. “Antisemetic immigration laws” are a form of public discrimination. As long as the state claims a monopoly on the administration of law and the use of force to uphold it, it has an ethical obligation to treat people equally, without regard to race, gender, religion, etc. Private individuals and organizations have no such ethical obligation.

Since I reject positive rights, I don’t believe that anyone is entitled to housing, education, or a job, so there is no good reason to prohibit private discrimination in these areas.

I’m more than pleased to live in a place which demands that people treat eachother in a particular way – even if it forces some people to be do things they don’t want to do. They should be doing these things anyway. Forcing racists to to be fair and just is a good thing. I don’t care what racists and antisemites want to do.

I prefer freedom over paternalism, even when that freedom is used in ways that I don’t particular like or approve. There is also the risk that giving the government the power to restrict the freedoms you don’t like will often result in restrictions placed on freedoms you do like. First they came for the anti-Semites, and all that jazz.

We’ve both been plauged by sexism and racism, so don’t claim the US constituation is superior.

I do claim that the US Constitution is superior, in that the UK and Canada seem to be much more willing to place content-based restrictions on speech than the US. I strongly suspect this is a result of not having strong First Amendment protections.

58

Taras Bulba 11.12.03 at 4:14 pm

It seems to me that talking about the radio broadcasts in Rwanda, interesting (horrifying) a topic as it is in itself, doesn’t have much to do with an argument about Canadian-style content-based speech restrictions. Is Ophelia’s argument that had such a “hate speech” law been in place in Rwanda, the radio broadcasts in question wouldn’t have occured? I’m not that up on the pre-1994 Rwandan legal system, but I’m assuming that there were in fact laws against murder (such as hacking your neighbor to death with a machete), but that these laws proved ineffectual and were not enforced (to put it mildly). What reason is there to think that laws restricting what could be broadcast on the radio would have been any more effective? (i.e., in the midst of that sort of carnage, who exactly is going to arrest the broadcasters?) Further, I think the whole argument is kind of a red herring, in that the speech contained in the radio broadcasts is more along the lines of a bank robber with a shotgun pointed at your head shouting “give me the money or I’ll kill you”. Nobody’s going to buy a free-speech defense for the bank robber, but I don’t think many people would argue that bank robberies would be dramatically reduced by passing speech-laws against threats made during robberies, either.

59

a Canadian 11.12.03 at 7:00 pm

” I strongly suspect this is a result of not having strong First Amendment protections.”

And I strongly suspect you know very little about the Canadian civil rights. I also suspect you know even less about Canadian mainstream culture.

60

David W. 11.12.03 at 9:51 pm

I was treating the Rwanda discussion as an interesting sideline, not directly connected to the main affair. I wasn’t trying infer a position on the great Canada question one way or the other.

61

Taras Bulba 11.12.03 at 11:12 pm

My comments about Rwanda were more directed at Ophelia, who seemed to be using the Rwandan case as a club against “free speech absolutists”. Also (and please correct me if I’m wrong on this point; I’m by no means an authority on the Rwandan genocide), but weren’t the majority of the inflammatory broadcasts made from government-run stations, rather than private broadcasters? (i.e., it’s not the Hutu version of Rush Limbaugh shouting “go out and kill ’em!”, it’s the Rwandan equivalent of the Emergency Broadcast System …) If I’m correct in this detail (again, not certain of the facts here), that’s a further argument against the relevance of a hate-speech kind of law, since it’s a situation where the very entity that would be expected to enforce said law (the state, or at least the Hutu power structure within the state) is the entity that’s breaking it …

62

Seth Edenbaum 11.13.03 at 12:07 am

The last time my comments were casual and glib; this time they wont be.
Culture is not made by individuals but by society as a whole. The conversation here revolves around ideas of individualism that are ludicrous: the delusion and scientific pretense of ‘synchronic’ analysis, the lone rider theory of intellectual life. It’s why I prefer history.
It’s silliness to claim ‘paternalism’ about every attempt at maintaining some sense of order. You want to go mumble gibberish out in the desert -or the Great White North- go right ahead. I like rules because I like language. I value sophistication; and sophistication is impossible without some level of coercion. Libertarianism on the other hand, in it’s delusions, is a cultural wasteland. You can read The Fountainhead, I’ll stick with Shakespeare and Mozart. And if you think either of them operated in a rarefied world of isolated individual activity you’ve a fool.
We live in collectives. Collectives are systems and systems must be coercive in order to function. Language is coercive. Education is coercive. Without it there is chaos.

There was a funny Andrea Dworkin story a few years ago about a shipment of one of her books being confiscated at the Canadian border. The novel included a description of a violent rape, meant to serve as an ‘illustration’ of violence against women, but the language was judged to be pornographic under the standards of the law that she and Catherine McKinnon helped to pass.
Not a very sophisticated thinker/ Not a very sophisticated law.

Comments on this entry are closed.