Sunday, January 20, 2008

On free speech

Political discussions inevitably become polarized, and the current Ezra Levant imbroglio is no exception. One side maintains that he is a citizen being punished by the state apparat for publishing some cartoons. The other insists that he is a a citizen who should be punished for publishing some cartoons.

Hold on a minute. Not so fast.

I don't see many people, in fact, other than the hot-tempered complainant in this case, arguing that Levant is on the wrong side of the law here. Most of those on the Left side of the political spectrum do not hold that opinion. An old antagonist did point out that, two years back, I suggested that Levant be investigated for hate speech. Even ol' dawgs get carried away on occasion. At the time, I was more interested in the selective approach to free speech adopted by many (but by no means all) conservatives. I was also offended by what I still consider to have been a mean-spirited and provocative act. Levant knows very well that Muslims, common-or-garden, nine-to-five, law-abiding Muslims, consider any visual representation of the Prophet to be blasphemous, let alone disrespectful ones. But that doesn't mean the law has a role here.

I've been reflecting on the evolution in my own thinking that has brought me to this point. First, let me explain what that point is. I am in favour of Human Rights Commissions, barring anything better, but in the long term I see them as a weak substitute for genuine social transformation--a kind of institutional safety valve, the intent being to contain popular dissatisfaction, rather than to resolve the underlying problems of unequal status and power that define our society at the core.
I am not opposed to laws against hate speech, either in the Criminal Code or in human rights legislation. The bar is set sufficiently high, in my opinion, to winnow out unfounded complaints by the merely offended.

This is why the complaint against Levant will not proceed to a hearing. The system is working. The much-reviled Shirlene McGovern, an Alberta Human Rights Commission investigator, is in fact a filter. She's been doing her job, and getting the usual mindless slagging from conservatives, who have called her just about every nasty name in the book, not realizing that she will likely prove to be an ally.

The issue is just as much one of practicality as of principle. Exposing people to hatred, as the legal language runs, is one thing. But simply being offensive is quite another. No legal system can possibly deal with mere offence: if it were to try, the collateral damage would be incalculable.

Yours truly once supported university speech codes. The infamous "water buffalo" case concerned me, but any positive initiative will have craziness at the margins, and the latter should not necessarily be used to condemn the initiative itself. Then the moderators at Progressive Bloggers
(I'm one) decided to develop a Code of Conduct for the blogroll. I thought it would be a simple matter. (Even at my age, I am still capable of startling naivete sometimes.)

During the ensuing discussions and drafts, it became obvious to most if not all of us that this project was taking on enormous proportions. The language seemed to feed on itself. The rules became more and more complex, trying to cover every conceivable aspect of behaviour unbecoming a progressive. Then we tried re-simplification. That didn't work either. We couldn't even agree on what a "progressive" was. A lot of discussion has vanished into the ether by now, but I can recall the animated discussions becoming downright rancorous. And the blogroll members were not remotely impressed by this project. In the end, it was abandoned.

The next step on my journey was the human rights complaint against Maclean's magazine by a group of Muslim law students offended by the publication of an extract from Mark Steyn's "they're breeding like rabbits" book, "America Alone: The End of the World as We Know It" (which, despite the title, was not a parody, at least not an intentional one). In his uncontradicted account, the Editor-in-Chief, Kenneth Whyte was open to a solution:

The student lawyers in question came to us five months after the story ran. They asked for an opportunity to respond. We said that we had already run many responses to the article in our letters section, but that we would consider a reasonable request. They wanted a five-page article, written by an author of their choice, to run without any editing by us, except for spelling and grammar. They also wanted to place their response on the cover and to art direct it themselves.

The demands were, in a word, unreasonable. Whyte said no way, and off the students trooped to the nearest Human Rights Commission, where the matter presently rests.
I found myself irritated.

Then came the Levant affair. The antics of this posturing bully falsified the debate. They became, and quite rightly so, a topic of discussion on their own. But what got lost was what was really happening--or not happening. A citizen lodged a complaint against another citizen. The state provides a number of mediating bodies when citizens have problems with each other, including civil courts, various labour arbitration/adjudication tribunals, and so on. In this case it was a Human Rights Commission.

All such bodies have various screens and filters to weed out the founded wheat from the unfounded chaff. What we've been seeing in Alberta is a screening process at work. It wasn't a trial, a star chamber proceeding or an inquisition. It wasn't even a hearing.

On reflection, however
(hindsight being 20-20), I think it would have been wise for the AHRC to dismiss the complaint upon receipt, something that they are empowered to do. The publication of the cartoons, as much of an affront as it was, did not put the Muslim community at risk. It didn't expose Muslims to hatred or contempt. It might well have been an expression of hatred or contempt on Levant's part, but that's not the same thing. Certainly, dismissing the complaint after duly investigating it has its strategic appeal, but it has led to the wide circulation of a simply staggering amount of politically-inspired misinformation that has brought the entire process into disrepute.

The complaint will be dismissed, in any case, and so it should be. If it isn't, woe betide us the next time we
take a shot at the Intelligent Design yokels, or the Catholic Church's pedophile industry, or the ceaseless whining of privileged white men (provocative phrasing intentional).

The letter killeth, but the spirit giveth life. There simply has to be room for judgment, debate, testing and opinion without the law getting involved and rules being invoked. That cacophonous mix will often include a large helping of ill-judgment and offensive opinion. That's how it works.

On the other hand, nothing is absolute, not even freedom of speech and expression. We can all think of counter-examples on which there is virtual consensus: defamation, libel and slander; inciting a riot; child pornography. But these are simply categories: and categories have thick, gray margins. What is libellous? What is incitement? Is Romeo and Juliet child porn?

That's why we have tests, and procedures, and jurisprudence, and argument. That's where societal judgment comes to the fore. Individual cases need to be assessed on their merits. Mere principle will not guide us through the shoals. But the problem with the Levant case, or one of them, anyway, is that it is being discussed mostly in terms of pure principle. The facts of the case have become irrelevant.

In this connection, what I find troubling is the inconsistency of the more ideologically hidebound Levant supporters. The state crushing dissent is how the matter is being portrayed. An innocent citizen having to shell out for a lawyer and give up his time to defend himself. An outrage! Yet, when it comes to the formal court system, all of those repressive mechanisms are firmly in place. If you are sued, you will need to shell out even more for a lawyer, pay a small fortune in legal fees, and be prepared to lose a lot of time in court proceedings. If the plaintiff happens to be wealthy, and/or a lawyer, and you are not, you're basically screwed. Most ordinary folks at the wrong end of a lawsuit swallow their pride and look for a quick way out of the mess.

In North America, activists have been shut down again and again by so-called SLAPP suits, or Strategic Lawsuits Against Public Participation. Individuals who say things that the powerful and rich disapprove of can
find themselves literally sued into silence. Conrad Black was infamous for using the courts in this fashion. Warren Kinsella, whose lawyerly expertise and well-known aggressiveness makes him a pretty scary antagonist to just plain folks, has thrown a lot of legal paper around as well, or threatened to. And then we have--goodness me--none other than Ezra Levant himself.

The patron saint of free speech is busy suing a tiny community paper and a former employee of his for $100,000
at present because he didn't like what they had to say about his reign at the Western Standard. The column can be read by following the link here,* and the letter may easily be found by Googling "Dust My Broom" and "Merle Terlesky." (I hate having to dick around like this, but I don't want to be sued myself.)

I have raised this matter with some of the more indignant defenders of Levant, busy hagiographing the man, and they have tended to respond, "That's different." (To his considerable credit, Darcey over at Dust My Broom, who first brought this to my attention, has been entirely consistent. Many of his commenters, though, are not of like mind.)

But I don't see how it's different. In each venue, speech is at issue. Some actions succeed, most do not even proceed, for a number of reasons. When it comes to civil suits, respondents tend to choose shutting up and shutting down rather than face the time and expense of defending themselves against the likes of Black and Levant. In the case of Human Rights Commissions, most complaints are screened out or resolved informally.

Few on the Right moan about "the state" when lawsuits are used as a weapon. They seem to be quite well aware in that case that "the state" is merely providing a mechanism that private citizens and corporations can use (or misuse) against others. But when it comes to the quasi-judicial Human Rights Commissions, the story changes: the private citizen submitting an unfounded complaint is no longer the issue, but "the state," allegedly stamping its jackboot on a human face. Court employees are virtually invisible during civil action, but HRC employees, trying to do their job, are placed squarely in the limelight and trashed on a personal level.
As inveterate privatizers, it seems, some conservatives don't want "the state" suppressing free speech--that sort of thing, in their estimation, is best left to well-heeled private citizens and companies.

Their current agenda, in any case, is clear: it's not Levant. It's not even freedom of speech. It's nothing less than Human Rights Commissions and human rights legislation that are at stake. The aim for some is just to prevent them from dealing with hate speech; but most of those up in arms at present want to abolish them outright.

In conclusion, is there such a thing as hate speech, and if there is, should it be suppressed?
That's really the crux of the current debate. I don't think it's all that difficult, first of all, to find examples of the genuine article. The Boissoin decision provides a good example. Speech that doesn't merely offend, but demonstrably puts vulnerable sections of the community at risk, should be as intolerable in a democratic society as libel, slander or inciting a riot. And if we can agree that such a category of speech exists, then we need assessment mechanisms to weed out bona fide instances of it from other speech that, however unpleasant or hateful in itself, does not pose such risk.

I think it's possible to restrict the category to a very small, well-defined type of utterance, just as the courts have been able to deal with child pornography more easily than with pornography as a whole, and with riot-incitement more easily than, say, with sedition. The bar should certainly be very high, as I believe it already is. We need to encourage citizen participation in public debate: it's a hallmark of a democratic society. Inevitably, stupid and offensive things will find their way into the verbal melee. But, except for rare extreme and dangerous utterances, the law should have no role.

Anyone can go to a Human Rights Commission and scribble a complaint; it's what happens afterwards that's important. I don't think freedom of speech has been put at the slightest risk by the complaint against Levant, regardless of all of the inflamed rhetoric to the contrary. But I shall be prepared to change my tune, and quickly, should this case ever be allowed to go to a hearing.
*In fact, as I discovered after I wrote this, it can be accessed here. Go figure!

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