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February 11, 2008

A Pair of Musings on Free Speech, Hate Speech and Nature of Sovereignty

[Editor's Note: After reading my post on free speech and its limits, my girlfriend, Kalani, who knows far more about free speech law and theory than I, made two excellent observations regarding the reasons a society protects speech in the first place. I asked her to share her thoughts on Maderblog, and luckily for you, she agreed. Enjoy!]

1. Silencing Hateful and Offensive Speech Treats the Symptom Instead of the Problem

It seems to me that people who advocate proscribing hate speech and offensive speech (and any other speech for that matter) are holding the false belief that silence is equal to lack of harm. They believe certain types of speech are harmful so lack of speech will eliminate the harm. They advocate silence because without the offensive or hateful speech there is thus no (or less) hate and discrimination being introduced into conversations through speech. However, they overlook the fact that the hate and discrimination that caused the offensive speech still very much exist in the minds of the population. Any country wishing to move forward and improve collective thinking and liberal ideals and aim for a more accepting, open-minded population would do far better to know what the people are actually thinking, and the best way to do this is to let the people speak freely and in speaking show how they feel. Only once a country is truly aware of the biases and prejudices exhibited by its populace can a country decide how it should direct its efforts at improving these negative attitudes (which really is the end goal of all this, right?).

If hate and offensive speech is proscribed in an effort to reduce harm you get the worst possible outcome for the country as a whole because such negative views still exist even if the speakers of such views have been silenced. (These undesirable attitudes are arguably made stronger because the hate and offensive speech laws indicate to some people that the government has told them it isn't legal to feel the way they feel – a situation that can only make one bitter and more steadfast in his now-illegal feelings.) More importantly, the attitudes that underlie hateful and offensive speech will manifest themselves through actions if not through words.

When hate speech is proscribed, no one with power to do anything about these negative attitudes underlying such speech (be it a government body or a non-profit aimed at healing racism or whatever) really knows the extent of the problem because the underlying attitudes still exist but aren’t being verbalized because it is illegal to do so. In order to make forward progress in any conflict both sides much be heard and understood. If hate and offensive speech is legally protected both sides of the speech (those speaking and those feeling harmed) as well as neutral third parties can really engage in a debate about what underlying emotions and attitudes are propelling such speech. Only then can a country honestly start to get at the root of the feelings propelling the hateful and offensive speech and move forward towards the possibility of putting to rest (or at least lessening) the hateful and offensive feelings, instead of silencing the symptom of such feelings. Treating the symptom by proscribing hate speech ignores the true problem behind hate speech and allows hateful attitudes to remain unchecked where they can still cause deep harm to a country and its people.

2. The Nature of Canadian Sovereignty and its Effect on Free Speech Laws

The way that Canada understands its sovereignty will dictate the most basic definition of freedom of speech in Canada. The underlying theory of American freedom of expression is that the people are the ultimate source of sovereignty. If sovereignty derives from the people then the people must have the right to express themselves. Under this understanding of sovereignty free speech protection is a tool which allows the sovereign (the people) to speak freely both to check the power of the government and to make their voices heard so that their representatives in the government (Congress) will be aware of the will of the sovereign. The harm from restrictions on speech is that the will of the sovereign will not be realized – a situation detrimental to any form of government. It is precisely this understand of sovereignty that has made the First Amendment a critical part of American democracy. Few government restrictions have sparked such heated debate and backlash as restrictions on the freedom of speech because the people know the sovereign power derives from their will and they will do everything possible to safeguard their freedom of speech in order to preserve their sovereign power.

In the English tradition, parliament is the ultimate source of sovereignty and the people have no direct role to play in policy. Consequently, there is no need for speech protections for the general population, but members of parliament enjoy the protection of freedom of speech. In countries with a queen/king sovereign or a parliament that is the sovereign there is no need to safeguard the free speech of the general population because the general population has no sovereign power and is not in charge of the future of the country, so only those with sovereign power need liberal free speech protections.

A country must determine the nature of its sovereignty before it can accurately determine the correct rubric for its free speech laws. Is Canada still a country under the sovereign power of parliament or is Canada trying to fashion itself as a democratic country truly run by and reflective of the will of the people through their representatives in parliament? I may be a totally ignorant American but from my outside point of view it seems like Canada has grown out of the British history of sovereignty but now fashions itself a modern democracy. These contradictory understandings of the nature of sovereignty have to be sorted out and only then will the framework for Canadian free speech come into view – and the necessity (or not) of proscribing hate speech and offensive speech will likewise be made clearer.

(A final thought: I know you can argue that hate speech should still be proscribed in a "people are the sovereign" kinda place but I don't agree (per my musings in point 1 above). The marketplace of ideas is only complete if all voices are being heard, no matter how offensive or hateful such views are to some listeners. Unless of course such views rise to the level of inciting physical harm, like the distinction Mader made in his free speech post below.)

Posted by David Mader at 06:16 PM | (7) | Back to Main

February 05, 2008

Voting Days

It seems like every election nowadays is marred by reports of voting equipment glitches. The logistical problems are compounded by the fact that, given the limited time in which to vote, a delay of half an hour or more may effectively deprive individuals of their opportunity to cast a ballot.

That being the case, isn't there a good argument for extending the voting period over multiple days? I myself voted early in the last federal election, and during the 2004 presidential election more or less everyone I knew in Austin had cast a ballot before election day. Why not make this official by instituting a two or three-day election period? Not only would this eliminate time-based obstacles to voting, but it would also allow for coordinated ballot closing times. After all, if Californians and New Yorkers both have more than a full day to vote, there seems no good reason why you couldn't close ballots at four o'clock on the west coast and seven on the east - that is, at the same time.

The objections, I suppose, are cost and scrutiny. I think these are both empirical questions: how much would an extra day of official voting cost? And how much would it in fact increase the risk of fraud? If nothing else, I think a study into these costs would be worthwhile, given the possible benefits.

Posted by David Mader at 05:26 PM | (0) | Back to Main

Thought for the Day

Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
- Robert Bolt, A Man For All Seasons (1960)

Posted by David Mader at 01:13 PM | (0) | Back to Main

February 04, 2008

Doorsteps, Fields, and Synagogues

It's late, and I've spent more time than I care to admit tonight on the phone with Comcast trying to get them to turn on my Internets, so just a quick response:

Warren poses two hypotheticals: the Jew finding a swastika scrawled on his doorstep, the person of color awakening to a burning cross on his lawn. These are illustrative, he suggests, of the position that "some symbols should never be used with impunity[, as n]o useful idea is conveyed by a burning cross in a rural field, or a swastika on the side of a synagogue."

I highlight these passages because, as I understand First Amendment law, this is the precise locus of the current debate in the United States: namely, that cross-burning is in fact constitutionally protected when it occurs "in a rural field," but is not constitutionally protected when it occurs on an African American family's front lawn. (See the ironically named Virginia v. Black, 538 U.S. 343 (2003)). The difference? Simply the relative threat conveyed by the action. Burning a cross on a front lawn does not suggest a death threat, it is a death threat; it says: "we are going to kill you, because you are black." The nexus between the action and the harm is apparent. Burning a cross in a rural field, while obviously an expression of hate and a generalized pronouncement of ill-will, is not a death threat - the nexus between action and harm is of the second order.

In other words, two points: 1) our analysis of Kinsella's hypotheticals can (and, I submit, should) be based on the harm principle I sketched out below; and 2) under this harm principle, I think that conservatives like myself, liberals like Kinsella, and moderates like Stern can find an awful lot of common ground.

How's that for hope?

Posted by David Mader at 11:14 PM | (0) | Back to Main

Free Speech and its Limits

In all the sound and fury about free speech and hate speech and civil rights and human rights and all the rest, it's become increasingly difficult to remember what we're all arguing about in the first place. As I see it, there are four distinct debates being conducted at once:

  1. Whether the state ought to restrict speech that causes offense, such as the publication of the Mohammed cartoons by the Western Standard or the publication of Mark Steyn's column by Maclean's;

  2. Whether Richard Warman was defamed by allegations that he fabricated certain racist and sexist quotes which formed the basis of complaints he brought before various human rights tribunals;

  3. Whether it is hypocritical to oppose restrictions on offensive speech while supporting, or at least making use of, defamation laws; and

  4. Whether the state ought to outlaw hate speech - that is, "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."
The second is a legal question, the resolution of which will depend on a judicial factfinding. I take no position, pausing only to note that (a) neo-Nazis are pretty much presumptively less credible, and (b) ultimately the question is one of fact, in which credibility is decidedly secondary.

Each of the other three questions are related, in that one's answers to each will reflect one's basic attitudes regarding the freedom of speech and its limits. That, at root, is what all of this brouhaha is about, and for that reason I think it's worth investigating the concept in some detail.

Let's start by putting aside this debate's straw man, the free speech absolutist who believes that the state may not under any circumstance proscribe speech or expression. We may freely admit that such an approach is contrary to our legal and political tradition; and even in the United States, whose free speech laws are immeasurably more robust than our own, limits on expression are well settled.

The question, rather, is what limits ought to be placed on expression. This question immediately collapses into a more basic one: how are we to decide what limits ought to be placed on expression?

The ongoing debate between the 'free speech party', represented by Ezra Levant, and the 'limited expression party,' represented by Warren Kinsella, is essentially a debate about these two questions.

The limited expression party appears to favour limits on various types of speech and expression: hate speech, speech "indicat[ing] discrimination or an intention to discriminate against a person or a class of persons," defamation, pornography

These proposed limits are each subject, to a greater or lesser degree, to two criticisms. In the first place, each is fundamentally subjective: whether or not a particular expression violates one of these limits is ultimately a question of individual judgment. In other words, there is no external standard by which expression may be evaluated. This is most evident in the case of pornography, a fact infamously recognized in Justice Potter Stewart's remark that "I know it when I see it." But it is equally true, for instance, with regard to hate speech. As Mark Steyn has pointed out, there have been no recorded instances of violence or measurable discrimination against Muslims as a result of his Maclean's column; that being the case (and I'm willing to be convinced otherwise), how can we determine with accuracy whether the column was "likely to expose a person or persons to hatred or contempt" on account of their race? The inquiry will inevitably focus on the testimony of the apparent subjects of hate, an untenable situation that effectively empowers complainants to silence adverse expression based on unverifiable claims of discrimination.²

More fundamentally, these limits, as a body, are subject to a second criticism: why do these categories exceed the bounds of acceptable expression, while other categories of expression do not? What is it about hate speech and discriminatory speech and defamatory speech and pornography that distinguishes it from any other speech?

The obvious answer is that these types of speech hurt people, whereas other types of speech do not. But the obvious answer is flawed: harm isn't always required - or at least actual, demonstrable harm is not. Subjective harm, in the form of testimony attesting to the hurt caused, may be enough to establish a violation of hate speech laws.

For example, I don't think anyone has argued that publication of the Biblical verses addressing homosexuality resulted in harm to the body of any Canadian, gay or straight (or otherwise). Surely some will see an inherent harm, manifest in the perpetuation of homophobic attitudes, perhaps augmenting the obstacles faced by gays and lesbians struggling with their sexual orientation and seeking family or community acceptance.

These harms are absolutely real, in their own way. But the distinction between these indirect harms and the harm resulting from a physical assault should be obvious: all conduct causes indirect harm, to a greater or lesser extent. We focus on the most egregious causes of indirect harm - hate speech, pornography - precisely because they stand at the very edge of the indirect. But if we choose to cross the line, we give up any objective defense against further limits; the only differences between the speech we allow and the speech we proscribe are subjective limits based on the personal preferences of the individuals who enjoy lawmaking power at any given time.

What's the alternative? Simply not to cross the line, however much we may - and do - abhor hateful and hurtful speech. But none would object to placing limits on speech that have a direct nexus to actual harm. That's why it's okay to outlaw shouting fire in a crowded theater; that's why it's okay to outlaw calls to violence. Actual harm - that is, measurable, identifiable, physical harm - is an objective external criterion that can be applied to determine liability regardless of the subjective preferences of the judge.

This approach generally favours the free speech party, obviously, and obviously I tend to identify with that camp. But I think my argument leads to a conclusion that doctrinaire free speechers might find unwelcome. If we acknowledge limits on expression based on their nexus to harm, it follows that expression must be evaluated contextually - in light of the conditions in which it is expressed. In some contexts, speech will have no harmful effect; in those conditions it ought to be unfettered. But in some contexts that same speech may in fact result in harm, and in that case limits are justifiable. An example? neo-Nazism, which is generally legal in North America but generally illegal, or at least heavily proscribed, in Europe. In North America, where - despite the caterwauling of the left - the odds of a fascist government are infinitesimal, there is little risk to allowing neo-Nazis to spew their hate. But in Europe, where there has been an actual risk of fascist takeover - at least in the post-war years, although arguably less so now - restrictions on neo-Nazi expression would, under my theory, be entirely justified.

I begin to touch on a larger theory of government; but this is not the time. So I conclude by observing, again, that where one stands on the issues of offensive expression, hate speech, and even defamation will depend on where one stands with regard to the relationship between expression, harm, and liberty.

¹ It's unclear from his post whether Kinsella favours limits on all pornography or merely on 'violent pornography.' For the reasons that follow, I think the free speech party would (and does) support restrictions on violent pornography, but I suspect there is some disagreement as to the scope of the limit. I'm not familiar with Kathleen Mahoney's scholarship, but I believe many feminist scholars and intellectuals view all pornography as exploitative, either in fact or as a manifestation of misogynist attitudes towards women. I characterize this attitude as representative of the limited expression party, but I'm perfectly willing to be corrected on this point.

² Importantly, defamation law largely avoids these pitfalls by requiring a complainant to demonstrate actual harm caused by the expression at issue, except in certain limited circumstances where harm is presumed from the context. For instance, a false statement regarding another's profession is 'per se' defamatory, since calling into question an individual's professional acumen or credentials is presumed to impact adversely on his or her livelihood. It is interesting to note, I think, that defamation has not always extended this far; originally it applied only where the expression impacted adversely on the life, not the mere livelihood, of the target.

Posted by David Mader at 06:50 PM | (2) | Back to Main

Here's the Thing About Human Rights

The thing about human rights is, it's pretty hard to argue about who's for'em and who's agin'em when there's no set definition of what 'human rights' actually are.

For instance, if you think that people have a human right not to be subject to hateful speech or literature, then you're likely to think that those who disagree with you are "opposed to human rights." On the other hand, if you think that people have a human right to free expression - including hateful expression - then you're likely to think that those who disagree with you are likewise "opposed to human rights."

In either case, saying that your adversary is "opposed to human rights" is not an argument; it's a conclusion, based on your own assumptions.

The real debate is over the content of human rights: should unfettered expression be a 'human right' protected by our laws? Or - since no one really argues for absolutely unfettered expression - should hateful speech be subject to fetters? (I bet you didn't think it was a word.)

To some it's obvious that hate speech should be restricted; after all, it's hate, for goodness sake, and who wants to give succor to a bunch of Nazis?

To others it's obvious that even hate speech should not be restricted; after all, the truth will out, and anyway who gets to decide what crosses that line?

Reasonable minds will disagree; they always have. But how about we start disagreeing, and lay off this whole "you don't believe in human rights" meshugas?

Posted by David Mader at 04:50 PM | (0) | Back to Main

February 03, 2008

The Juxtaposition is Delicious

Paul Wells posts a mea culpa, of sorts, for drinking the Sarko kool-aid.

But Obama - well, that's some tasty kool-aid.

Posted by David Mader at 03:38 PM | (0) | Back to Main