The first part of the article provides a useful account of the rationale for free speech along with its purpose, and why some free speech is subject to less protections than free speech that meets these core principles: “search for truth, the quest for self-development and the fostering of democracy.”
But then, when Potter turns to the right to hear, he seems to ignore the question of whether the right to hear should also be subject to the same test of core principles or not. Perhaps his next column?:
After a few hundred years of working on it you’d think by now we’d have a handle on this freedom of expression thing. But it’s 2017 and here we are, still arguing about who has the right to speak, on what platforms, to which audiences and in what contexts. We don’t agree on much, except that free speech is a good thing except when it isn’t. And increasingly, it isn’t more often than it is.
This failure to take free speech seriously is a thoroughly bipartisan affliction. The monkey-king leaders of the alt-right and their talking muppet servants like Ann Coulter and Milo Yiannopoulos have effectively turned hate speech into performance art, with no real interest in either the consequences of the hate or in the value sincere debate can contribute to democracy.
And the ctrl-left, from campus snowflakes to the just-in-it-for-the-riot forces of antifa, happily play into their hands, from whining about safe spaces to forcibly and violently preventing people from exercising their legitimate civil liberties.
But there’s a bigger problem at work, which is that this sort of behaviour from both sides is not actually at odds with the most common understandings of free expression and its rationale. In fact, just the opposite is the case: most of the current attempts to restrict free speech are natural extensions of the justifications for it.
If you ask most people why free speech is a good thing, they’ll point out that it’s in the constitution. But why is it in the constitution? Well, maybe because it’s good for democracy, for artistic ennoblement, or self-discovery, or because it is the foundation of scientific inquiry or for the search for truth more generally.
What all of these justifications for a right to free expression have in common is that they are consequentialist in nature. That is, they ground the defence of freedom of speech in the effects speech has. On the whole, we believe that allowing broad protections for freedom of expression results in good things for society.
Actually, the court goes even further. It has identified what it calls the “core principles” that are served by free expression, which include the search for truth, the quest for self-development and the fostering of democracy. As the court sees it, speech that doesn’t serve these goals is not necessarily entitled to the same constitutional protections.
Lots of people have pointed out that this amounts to a reverse-onus clause. In theory, it should be up to the state to explain why it should have the right to limit speech, but in Canada we are well down the road to a place where people have to justify to the courts why their speech should be permitted. It’s not a long toss from there to the bizarro-land conclusion that entire groups can be silenced on the grounds that this silencing is an effective way of serving the goals that free speech serves more generally.
We got here because the problem is with the way we framed the question in the first place, as a debate over the benefits of free speech and the consequences we are willing to tolerate. Instead, what we should be focused on is the right of people to hear what others have to say, and how this fits into a broader account of individual freedom.
What’s the difference? If you turn the free speech debate on its head and treat it as a right to hear what someone has to say, the constitutional rationale for it becomes a lot clearer: The right to hear or read something and judge its worth or merit for yourself is the basis for being treated as an equal, rational and autonomous agent. We shield things from children precisely because we don’t think their rational faculties are sufficiently well developed. They don’t know how to evaluate something by their own lights. That’s why a big part of parenting is bringing kids along the path to autonomy, teaching them to judge and think for themselves.
Hearing what people have to say and judging its merits for yourself is the mark of being an adult. And part of being an adult is having the right to make mistakes, to make bad judgments or decisions, and take responsibility for what follows.
It just so happens that a society made up of autonomous individuals making independent rational judgments about what others have to say is the basic condition for the possibility of a liberal democracy. The fact that so many people, on the right and the left, are willing to have their right to hear limited by governments, universities or even social media mobs, is a further sign of the relentless infantilization of our culture — and goes a long way toward explaining the current crisis of liberalism
This line of defence has a solid philosophical and legal pedigree. Probably the best-known version is found in John Stuart Mill’s essay On Liberty, where he argued that the right to speak was limited by the harms that result. But this focus on the consequences of speech is firmly embedded in the Supreme Court’s interpretations of the freedoms outlined in section 2 of the Charter of Rights and Freedoms. The court’s take, through various rulings from Taylor to Keegstra to Whatcott, has been relentlessly consequentialist, always taking care to weigh the guaranteed right to free expression against the harms — both actual and hypothetical — that might come from hate speech.
Actually, the court goes even further. It has identified what it calls the “core principles” that are served by free expression, which include the search for truth, the quest for self-development and the fostering of democracy. As the court sees it, speech that doesn’t serve these goals is not necessarily entitled to the same constitutional protections.
Lots of people have pointed out that this amounts to a reverse-onus clause. In theory, it should be up to the state to explain why it should have the right to limit speech, but in Canada we are well down the road to a place where people have to justify to the courts why their speech should be permitted. It’s not a long toss from there to the bizarro-land conclusion that entire groups can be silenced on the grounds that this silencing is an effective way of serving the goals that free speech serves more generally.
We got here because the problem is with the way we framed the question in the first place, as a debate over the benefits of free speech and the consequences we are willing to tolerate. Instead, what we should be focused on is the right of people to hear what others have to say, and how this fits into a broader account of individual freedom.
What’s the difference? If you turn the free speech debate on its head and treat it as a right to hear what someone has to say, the constitutional rationale for it becomes a lot clearer: The right to hear or read something and judge its worth or merit for yourself is the basis for being treated as an equal, rational and autonomous agent. We shield things from children precisely because we don’t think their rational faculties are sufficiently well developed. They don’t know how to evaluate something by their own lights. That’s why a big part of parenting is bringing kids along the path to autonomy, teaching them to judge and think for themselves.
Hearing what people have to say and judging its merits for yourself is the mark of being an adult. And part of being an adult is having the right to make mistakes, to make bad judgments or decisions, and take responsibility for what follows.
It just so happens that a society made up of autonomous individuals making independent rational judgments about what others have to say is the basic condition for the possibility of a liberal democracy. The fact that so many people, on the right and the left, are willing to have their right to hear limited by governments, universities or even social media mobs, is a further sign of the relentless infantilization of our culture — and goes a long way toward explaining the current crisis of liberalism.
James Turk, Ryerson’s Director of the Centre for Free Expression, on free speech in universities following Ryerson’s cancelling an event with right-wing speakers (Jordan Peterson, Faith Goldy):
That harmful legacy of university cowardice and complicity took years to overcome. We need to remember this past if we do not want to relive it, albeit in the name of new passions and different ideologies and concerns.
Instead, it appears as if we are starting down a dark road that threatens the raison d’être of the university and the fundamental rights to freedom of expression guaranteed by Canada’s Charter of Rights and Freedoms.
If standing by its principles requires a university to make a greater investment in security personnel to protect freedom of expression, that must be seen as a proper cost of doing business.
If threats continue to blossom, then there needs to be discussions with governments to ensure universities have the additional financial resources to ensure free expression does not fall victim to intimidation.
Not only are censorship and suppression fatal to the purpose of the university, they undermine the foundation of democratic society.
When individual rights to freedom of expression are diminished or taken away for an allegedly good cause, they are necessarily invested in some higher authority that is given the right to determine what is acceptable.
The result is censorship from above — ultimately the state — with the likelihood that the champions of that censorship today are its vulnerable targets tomorrow.
Refreshing and needed historical perspective on the free-speech movement and its co-opting by the right:
Indeed, Berkeley’s far-right agitators routinely invoke the memory of activist Mario Savio, the standard-bearer of the FSM, going so far as to declare themselves “the new Free Speech Movement.” This, while boasting of the endorsement of America’s highest office: “The more abuse and harassment we suffer,” warned the Berkeley College Republicans in a joint op-ed following Yiannopoulos’s cancelled appearance, “the more controversial speakers we will invite to campus. We proceed fearlessly because we know we have the president of the United States on our side.”
“We will give out a new free speech prize—the Mario Savio Award—to the person we believe has done most to protect free expression at UC Berkeley and its surrounding area,” proclaimed Yiannopoulos in promoting Milo’s “Free Speech Week.” “Each day will be dedicated to a different enemy of free speech, including feminism, Black Lives Matter and Islam.”
This co-opting of Savio’s legacy is a calculated provocation, one that his son Daniel calls “some kind of sick joke.” Savio led the FSM to victory in ending all restrictions to political activity on campus, which included the rights of orators from all political perspectives. “Rather than ban speakers he disagreed with, Savio debated them, whether they were deans, faculty, the student-body president, or whoever,” wrote Robert Cohen, author of Freedom’s Orator: Mario Savio and the Radical Legacy of the 1960s. “And this was the spirit not only of Savio but of the FSM, which had an almost Gandhian faith that through open discourse anyone had the potential to be won over” to a cause.
Savio was a veteran of the civil-rights movement, and as Cohen details, “sought to convince the editors of the student newspaper there that their use of the term “n—-r” in the paper was hurtful and irresponsible … Savio did not deny students had the right to print what they chose, but asked that they reach out to their black classmates and reflect on whether in the future they could be more thoughtful about the impact their words had on the campus community.”
The FSM’s quest was decent and honest—it was about engaging in open, rigorous debate and the exchange of ideas, no matter how inflammatory or loathsome, with a goal of making progress. What’s happening now isn’t about discussion: it’s pure political tribalism. People like Coulter and Yiannopoulos aren’t brought to campus to contribute substance—hearing either speak for a few minutes quickly puts lie to claims of their brilliance. They are skilled antagonists who can reliably incite backlash from a perceived enemy; they are, as Dorian Lynskey of The Guardian describes, the “outcome of a grotesque convergence of politics, entertainment and the internet in which an empty vessel can thrive unchecked by turning hate speech into show business.”
Where trauma, real or perceived, has become a sort of morbid currency in some circles of the left, often used to justify unworkable demands of individuals and institutions, the self-described “politically incorrect”—adults who consider childlike behaviour to be heroically subversive—are in the grievance trade. Because each provocation inflates the value of a carefully-crafted persona, victimhood is actively—and ironically—sought; they prey on the vulnerable, ridicule targets of well-documented discrimination, then cry persecution when met with resistance.
While it’s vital to uphold and protect the right of all speech on campus—even the most abhorrent rhetoric from the ranks of the alt-right—it’s crucial to identify this new game being played and, as Savio desired, critically judge “whether the speech … is really free, or merely cant.”
And it matters that influential voices, while rightly demanding institutions uphold free speech norms, explicitly make that distinction.
For many conservatives, especially on the far right of the spectrum, free speech has become a kind of fetish. They invoke it like a magic defence against allegations of bias and bigotry. And yet, some of the staunchest free speech advocates see no conflict in using that right to call for limits on the liberty of others, like those who want to marry someone of the same sex, to use the washroom that reflects their gender as they define it, to cover their hair as religious observance, or to determine what goes on in their own uterus. At issue is not an open, civil and respectful exchange of ideas. Rather, what the conservative free speech posse wishes to protect is the power to gin up hysteria and insult others, particularly people in minority groups, without consequence or criticism.
But, of course, that’s not what free speech laws were created to do. Protections of free expression ensure that citizens aren’t punished by the state, thrown in jail or sent into exile for championing dissident views. That doesn’t mean everyone with an axe to grind is entitled to an audience. That doesn’t mean that a comedian won’t be criticized for a rape joke, or a homophobic business won’t be boycotted. That doesn’t mean a crowd is allowed to hurl slurs at a woman in a hijab. Even in the US, where there’s enormous latitude when it comes to free speech, the right is not absolute. Libel and slander are illegal, as is threatening violence against the president.
And, as a matter of etiquette, cultural norms or old-fashioned common sense, we routinely accept limits to self expression. Corporate employees abide by office dress codes and don’t show up to work in cut-off shorts and Crocs. TV and radio broadcast regulations forbid the airing of adult content during certain hours. Many of us don’t use curse words in front of our kids or our grandparents. Few of us feel silenced by these concessions.
But the free speech doomsayers believe we are living in the end days of democracy, and they are the ones who are suffering. Think I’m exaggerating? A week after a white nationalist gunned down six men peacefully praying in Quebec City mosque, when the traumatized congregants had barely finished washing away the blood, conservative columnist Barbara Kay tweeted, “How long until my honest criticism of Islamism constitutes a speech crime in Canada?” It says a great deal about Kay’s self-regard and her priorities that she painted herself as a victim of the tragedy.
In Peterson’s case, he fancies himself a hero for refusing to do what most of us would do as a simple matter of politeness: that is, call someone what they’d like be called. By Peterson’s logic, I have the right to address him as “Dame Judi Dench” or “Chuckles the Clown.” But would that make me a fearless warrior for free speech? Or just self-aggrandizing and sort of pathetic?
But why be courteous and decent, when you can be famous and rich? Peterson’s free speech rants have helped him rack up over 80,000 Twitter followers, 8,000 Facebook likesand 3,000,000 views on YouTube. That’s a sizeable audience for who someone who claims he’s being censored. He’s also got a blog, a new book and an online self-help course. He’s even launched a Patreon account where his fans give him US$12,000 per month — a very nice top up on his $160,000 annual prof’s salary — to support his lectures on political correctness.
And that’s what’s actually at stake — profile and profit, not free expression. Until the pedophilia comments came out, Yiannopoulos’s free-speech-victim routine landed him a US$250,000 advance from Simon & Schuster for a book, which was at the top of the pre-order list on Amazon (the offer has since been withdrawn). Turns out there’s some speech his fans won’t support after all, the courage of their convictions be damned.
For Conservative leadership contenders, harping on about the dangers of Islam isn’t about a willingness to take an unpopular stand. It’s about rallying the base. Kellie Leitch may be an accomplished doctor with anywhere between 18 and 22 letters after her name, but as an MP her performance has been at best mediocre. As a leadership candidate, the only thing that’s distinguished her has been her willingness to target immigrants. And so, she’s leaning in.
As for the evidence of widespread censorship, where exactly is it? Conservative viewpoints abound on Fox News, Rebel Media, Breitbart News Network and the Sun newspaper chain. You can get your fill and then some of misogyny, racism and gay bashing on Reddit, 4chan and Twitter. The anonymous citizens who deluged Iqra Khalid with rape and death threats didn’t seem the slightest bit inhibited in their attacks.
No doubt all of us would benefit from better, smarter and more open debates, and from listening more to those we don’t agree with. But it’s hard to swallow the argument that free speech is under attack when it’s coming from the loudest voices in the room and from the protected perches of a tenured academic post, a column in a national newspaper, and the bully pulpit of a seat in the House of Commons. If those people have been silenced, why are they still shouting?
It is common among some clear-thinkers to reject any allegation of speech suppression — a speaker being shouted down on campus, a boycott of an offending corporation, a Nazi getting punched — unless it involves the explicit use of the coercive power of the state. Anything else is merely the “consequences” of speech, for which one should accept “responsibility.” Suck it up, snowflake.
In a sense, of course they’re right. The obligations of the state are of a different order than private individuals or groups, because of its unique powers of coercion, and because coercion — the power, not merely to punish speech, but to actively prevent speech — is of a different order than mere disapproval, say, or shunning.
But the difference is not so absolute as all that. It is more of degree than kind. As private individuals, we may not be under the same obligations and constraints as the state, but that does not mean we are under none. We have still the obligations of judgment, of conscience, and of respect — for the spirit of free speech, if you will, rather than the legal letter.
At one extreme it is easy to see this. If a mob were to burn down the local newspaper and hang its editor, it is of no use to say, well, it wasn’t the government that did it, so no chilling of speech is involved. One should not have to factor in, among the “consequences” to be expected of speech, the chance that one might be murdered — or punched, for that matter.
Short of actual law-breaking, things get trickier. There is no violence in shouting down a speaker, you may say; neither is a university, as a private organization, obliged to provide a platform for opinions of which it, or a section of the university community, disapproves. No, indeed. But free speech exists, as a legal guarantee, in part because of the foundation of social values in which it is embedded.
The spirit of free speech, that is, is as important: the notion that none of us is in absolute possession of the truth; that the route to truth is through the exchange and conflict of ideas; that the rights we each enjoy are guaranteed only so far as they do not intrude upon another’s; and that, in particular, we do not have a right not to be offended, or to be spared any encounter with disagreeable words, images or ideas. If we do not live by these principles ourselves, we will shortly find neither will our creation, the state.
So far so good. But what of the more benign ways of expressing collective disapproval: boycotts, online campaigns, or Parliamentary motions? Are these mere consequences of speech, or constraints upon it?
Answer: It depends. Anyone who has been the subject of a Twitter mobbing can attest it can be deeply unpleasant, and quite intimidating, even without overt threats of violence. The harm to reputation, for example, of having one’s name broadly associated with sexism, racism — or “Quebec-bashing” — can be a significant deterrent to speaking freely.
Taboos, shunning and other mechanisms of social disapproval, in other words, can raise the “price” of speech to intolerable levels. On the other hand, some things are taboo for a reason. We should not feel censorious for shunning or denouncing someone who expresses hateful or noxious opinions.
Neither should we hesitate to call them what they are. A good many of the participants in the present debate seem to think their freedom to say the most virulently and prejudicially anti-Muslim things should also protect them from being accused of prejudice against Muslims — or Islamophobia — in return. Well, no. That is simply logical, as is the denunciation in the motion before Parliament.
Where do we draw the line, then? Again, it depends. It requires all of us to use our judgment. People should not be labelled bigots or hate-mongers merely for offering an unconventional view on a controversial topic. A reasoned critique of Islam’s teachings on women is not to be treated the same as, say, a blanket claim that Muslims, as a group, are “unintegrateable.” But neither should actual bigotry be excused as merely being “un-PC.”
There are no simple rules to guide us. There are only mutual obligations: not to give offence needlessly, but also not to take offence lightly; not to round up a mob every time someone’s views offend us, but neither to be intimidated by the mob when it is necessary to offend.
Interesting column by William Eichler, defending free speech but underlying some of the complexities involved:
Speech always takes place within a context. Articles, cartoons and films are all embedded within a particular time and place. Behind each and every cultural product is a world of meaning constituted by the historical and socio-political context within which it is produced. And the manner in which it is received is shaped by this same context. Pre-fatwa Rushdie made this very point: “Works of art, even works of entertainment do not come into being in a social and political vacuum…the way they operate in a society cannot be separated from politics, from history. For every text, a context.”
What is the context of much of the criticism and satire that is levelled at Islam and Muslims today? Islamophobia from the far (and not so far) right; a “War on Terror” discourse that frames all Muslims as potential killers; the catastrophic invasions of Afghanistan and Iraq; and violent, political upheaval throughout the Middle East. Against this backdrop it’s little wonder that many Muslims don’t feel like laughing at caricatures of the Prophet Muhammad or engaging in discussions about the flaws in their faith.
Many free speech advocates characterise this stance pejoratively as a “Yes, but…” argument—a pusillanimous defence of basic democratic values that cedes too much ground to terrorists. But this is nonsense buoyed up by macho rhetoric. The dispute is not about free speech, and to hunker down behind abstract principles while refusing to deal with the world as it actually exists is to opt for cheap moralising at the expense of rigorous analysis. This is what Rousseau meant when he wrote that, “Those who desire to separate politics from morals will understand neither.”
Free speech is a principle worth defending, and it should certainly be protected from theocratic thugs with guns as well as from anyone else who wants to curtail it. I’m happy to declare “Je suis Charlie” myself, no matter how tired a slogan it might sound. Nobody should be killed for drawing cartoons. But in order to show commitment to slain satirists and the inviolability of free expression, we don’t have to ignore the concerns of those at whom the satire is aimed.
There is nothing wrong with complexity. The world is full of ‘shadows’ and shades of grey that cannot be ignored. It is not morally weak to say ‘Yes, but I am also concerned about how free speech is used.’ In fact, this position is both intellectually and ethically stronger and more rigorous than a simple declaration of ‘Yes, I believe in free speech’ that’s followed by a hollow silence. Caveats don’t weaken a moral stance—they make the arguments that underpin it even stronger.
On internet harassment and hate speech, and the Canadian court case that is attracting attention:
The law itself is still trying to understand how the Internet works. Consider a recent case in Canada that’s about to get a ruling. It may be the first case in the country of alleged criminal harassment solely via Twitter.
While we don’t have the full details, previous articles on this case convey that women expressed concerns of harassment when a man they blocked continued to interact with them. Regardless of being blocked, his comments at and about them continued, escalating to the point of concern when he commented on locations they apparently visited.
What’s interesting to note, however, is how The National Post phrases this:
“The graphic artist and father of four lost his job shortly after his arrest, which was well-publicized online, and if convicted, could go to jail for six months…These are astonishing repercussions given it’s not alleged he ever threatened either woman (or any other, according to the testimony of the Toronto Police officer, Detective Jeff Bangild, who was in charge) or that he ever sexually harassed them.”
Notice what the Post thinks are the only reasons worth being punished for: threats and sexual harassment. This is a thorough misunderstanding of what constitutes online harassment and the many ways it can and does occur. Worse, it completely ignores the effects it has on targets.
Consider, for example, the teen hacker who recently pleaded guilty to 23 charges relating to online harassment. More importantly, consider his targets. As Wesley Yin-Poole writes:
“[The teen hacker] would…post personal contact information [of victims] online and repeatedly call victims late at night…Victims ranged in location from B.C. to states across the US, including Minnesota, Utah, Arizona, Ohio and California.
One woman, a student at University of Arizona in Tucson, was forced to drop out of her course due to the teen’s continued harassment. Armed police were called to her house twice within the same week, and family members were removed from the home at gunpoint.”
None of this required sending threats or expletive-filled messages directly to the targets. But we already know this: Stalkers leave letters filled with adoration; catcallers shout out what they consider to be compliments to women.
And harassers are the ones often protected by the current nature of the Internet. As WHOA (Working to Halt Online Abuse) notes: “The very nature of online crimes means that we have little information regarding the harassers, as most victims either don’t know their harasser or do not know enough information about them for us to record.”
In Canada, it appears a growing list of objectionable ideas and beliefs are to be hunted down and subjected to the full weight of the state. And so it was that, on Monday, the borough council presided over by Mr. Ménard amended its definition of a community centre to specifically forbid religious teaching, effectively shutting down Mr. Chaoui’s aspirations.
More rule-tightening will presumably follow; Mr. Coderre has gone so far as to say, “I oppose radicalism in all its forms.”
Otherwise sane provincial lawmakers in Quebec have been involved in a multi-partisan argument, now in its second year, around how to legislate against religious fundamentalism. There hasn’t been much of an argument over whether that’s a good thing to do; it seems to be a given.
In Ottawa, meanwhile, the expansion of the police state continues apace, fuelled by the irrational Islamic State fears ginned up by the Conservative government.
What if the solution to all of this were as simple as more free speech?
In the marketplace of ideas, hateful, offensive and small-minded beliefs can and should be vigorously confronted. But instead of using the law to shut them down, fight back with speech that shows them up. Incitement to violence is a crime, and always has been. But some of the speech politicians are talking about shutting down falls well short of that long-standing legal line.
Opinions can be changed. Bad ideas can be shunted aside. People can stop listening to nonsense, or they can never start in the first place. That is essentially what happened to Mr. Chaoui’s reactionary spiel in Anjou.
The process was working swimmingly. And then the politicians got involved.
The debate continues over the scope over the Government’s plans to introduce a bill with new measures on Friday:
The ideological debate is summarized by University of Ottawa national security law expert Craig Forcese.
“A risk-minimizing society would permit mass detentions in the expectation that the minimal increase in public safety from the dragnet would outweigh the massive injury to civil liberties,” he writes.
“A rights-maximizing society, however, would deny the state the power to detain except through conventional criminal proceedings, for which it would impose demanding standards, even at the risk of leaving people free whose intent and capacity are clear but whose terrorist acts lie in the future.”
In a recent statement to the Citizen, Privacy Commissioner Daniel Therrien said: “Canadians want to be safe, but they also care profoundly about their privacy rights.
“Horrific attacks on innocent people obviously raise concerns about safety. But I was struck by the fact that, immediately after the attacks in Ottawa and in Paris, many people were talking about the importance of also protecting democratic rights such as free speech and privacy.
“Security is essential to maintain democratic rights, but our national security responses to acts of terror must be proportionate and designed in a way that protects the democratic values that are pillars of our Canadian society.”
Andrew Coyne’s more balanced take on recent free speech controversies:
People arbitrarily declaring issues “settled” about which there remains room for doubt, or at least for honest error, or trying to open issues that really are settled. How should we tell the difference? There are rules of thumb — whether it involves modelling highly complex phenomena decades into the future, like global warming, or whether, like evolution, it involves explanations of the existing order that have been tested and refined over 150 years. But mostly it is a matter of judgment.
Judgment, proportion, humility, open-mindedness, tolerance for human frailty: these are the soil in which free speech flourishes. Where we abandon them, it withers.
Multicultural Meanderings 