The Lieter Report compares free speech in Canada (where “hate speech” is often banned) with free speech in the USA:
It is true that if you despise homosexuality, and if you want to freely express that view, especially on religious grounds, you’re better off in the U.S. It’s also true that if you’re skeptical about U.S. motives in Iraq (and elsewhere) and think the invasion was on a par, morally, with the Soviet invasion of Aghanistan; if you believe nationalized health care is preferable to a system which caters to the needs of the insurance industry; if you think redistributive taxation is a requirement of justice; if, in short, you dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States, you will have far more freedom of speech in Canada: for example, your views might be expressible outside your living room, perhaps, say, in major newspapers, or even on television.
The whole thing is worth reading. And there’s a followup post as well..
Leiter’s entirely right to point out how constrained the discussion on important political issues is in the U.S., and how things are substantially better on this point in Canada. But the real insights in his post are undermined by the way he runs together (intentionally, as the main point of his post) two entirely separate issues:
1. Freedom of speech, in the sense of political freedom from censorship
2. Academic freedom, i.e., the ability to participate in substantive public discourse even if your views are politically unpopular (“Academic freedom” is too narrow a term–we’re also talking about issues such as visibility in popular newsmedia and culture, after all. But it’s a nearby ready-made term, and the virtues that recommend academic freedom in the University are the same as those that recommend open debate outside of it.)
People on both the Right and the Left run (1) and (2) together all the time, but they’re actually completely different issues, and need to be recognized as such. “Free speech” in the sense of (1) means freedom from government coercion; it’s a good thing to have because if you don’t have it, what that means is at some point or another some goon is going to pick up a gun and threaten you in order to make you say what the government thinks you should say, or punish you for saying something the government doesn’t think you should say–which is tyranny, even if what you said is mistaken, ill-reasoned, foolhardy, and / or hateful. And here, the simple fact is that the United States is better off (tho’ by no means perfect!) than Canada–and both the obscenity laws and the regrettable “hate speech” laws in Canada are cases in point.
But “academic freedom” in the sense of (2) has nothing at all to do with freedom from coercion, and the Constitutional and moral arguments for freedom of speech in the sense of (1) are completely misplaced here. Freedom of speech doesn’t mean being obligated to provide anyone with a microphone, and getting the government to force people to print or air views that they find absolutely repellant strikes me as no less tyrannical than getting the government to force people not to print views that the government finds unsuitable.
That doesn’t mean that academic freedom isn’t very valuable. It is. But it’s valuable for different reasons: because vigorous, wide-ranging, and well-reasoned public debate is a good thing to have in a civilized society, and you can’t have that if you decide that, regardless of the quality of argument, you’re just not going to listen to, or acknowledge, certain people because you disagree with their conclusions. It’s a very good thing for newsmedia to consult, and publish, and vigorously discuss many substantively different views on the important issues of our day–but only in the context of reasonable standards of intellectual honesty, scholarly rigor, clarity, etc. Artificially pumping up the diversity of conclusions, without regard for the quality of argument, undermines the very goals of rational, informed discussion that academic freedom seeks to preserve.
In the U.S., the major public opinion outlets neglect, ignore and even blacklist far too many people without considering their arguments; but that’s not censorship. It’s just foolishness, and dishonesty on the part of those who shut down discussion. In this respect Canada is much better off than the U.S.–but that’s because people who make reasonable arguments are more likely to get a hearing in the media than they are in the U.S., even if their conclusions are unpopular. It’s not because numerically more “viewpoints” are represented.
This is an important point; the confusion of (1) and (2) isn’t just being spread by Leiter. It’s also being pushed by cranks and lunatics (many of them on the Right). I’ve discussed David Horowitz’s use of this style of argument in the past; Holocaust deniers such as David Irving also try to use phony charges of “censorship” bully people into giving them a stage using this maneuver. But of course the reason that views such as theirs aren’t seriously is that their “arguments” fail to meet any kind of reasonable standard for intellectual honesty or scholarly rigor. Such views should be ignored, and no “censorship” is involved in doing it.
The end point of the Horowitz-Irving gambit is phony “free speech” legislation–of the type criticized on this very weblog–which throws out the underpinnings of academic freedom in order to enforce diversity of conclusions at all costs. In order to understand why bills like Title VI or Horowitz’s so-called “Academic Bill of Rights” are rubbish, then you ought to be able to see how Leiter is, unfortunately, propagating the same confused premise on which these charlatans are taking advantage of.
Uhmmm…. Maybe it’s just me, but I hear an awful lot of dissent on the war on Iraq, support for universal health care, and a number of other things Leiter seems to think people can’t talk about outside their living rooms.
Heck.. I’ve read some of those calls here! If I’m not mistaken, Leiter’s blog is at utexas.edu? He calls for these things. I’ve read stuff like at any number of the left wing blogs posted under your links.
I haven’t seen any shut down yet. And blogs are being read more and more every day. So, the views are aired.
Our speech is pretty free.
Still, I’ll admit, the people dissing Canada are being idiots. Canada is a sovereign nation; they have a right to decide how free they want their speech to be. If the religious people in that country want to amend their constitution because they feel deprived of hate speech that’s ok with me too. The Canadian constitution is their beat.
I wonder if they will bother though?
For my part, I’m content that we in the US have freedom of speech as guaranteed our constitution.
Yeah.. and what Rad said too…(He must have been typing that long thing and clicked “press” just before I did!)
Well, just to provide some discussion… :-)
I was struck by the following line in Rad Geek’s post:
full disclosure: I’m Canadian, eh? *grin*
I don’t feel that the “hate speech” laws are “regrettable” at all. In fact, I am much more comfortable with such laws in place, and I am thrilled that they are currently being extended to include hatful speech based on sexual orientation (the law is making its way through the Senate, I think).
It’s true that these laws restrict what people can say in public, and that is a barrier to absolute free speech. But in my opinion, it is equally important to realise that we form a society and that as such, it is as important to respect others as it is to have one’s personal freedom. And part of that is being aware of the effect of what one says on others, especially on communities that are not the majority. Because, let’s fact it, the communities which are generally targetted by hate speech (e.g. Jews, queer folk, visible minorities) are not the majority – they are already people with less power, with less ability or means to defend themselves. As such, the hate speech laws amount to someone stepping in and saying “watch it, you can’t go around talking about them like that” – a position that the targets might not be able to take if left to their own devices. I am relieved that my society will intervene to make the environment safe for me – both emotionally and physically.
This idea of protecting minorities is, of course, very enshrined in the Canadian Constitution, and has led to many significant judicial decisions (most recently, for example, the legalisation of same-sex marriage). It’s not perfect, but I am certainly in favour of it.
*tongue firmly in cheek* And just ‘cuz you’re jealous of it doesn’t mean you need to call it “regretable”. ;-)
Rad Geek, your point that no one is constitutionally obligated to pay attention to views they find absurd is an excellent one, and one that is often lost, as you say.
I would defend the independent value of a diversity of conclusions more strongly, however, since reasonableness and popularity are quite relative. To borrow from the language of the original post, there are plenty of people who would say that those who are “skeptical about U.S. motives in Iraq (and elsewhere) and think the invasion was on a par, morally, with the Soviet invasion of Aghanistan; [who] believe nationalized health care is preferable to a system which caters to the needs of the insurance industry; [and who] think redistributive taxation is a requirement of justice” are among those who “fail to meet any kind of reasonable standard for intellectual honesty or scholarly rigor” and thus should be ignored. Presumably most of the readers here would not want such people deciding what constitutes reasonable standards of public discourse.
I have to disagree with lucia when she defends Canada’s ‘hate speech’ laws (and obscenity laws too?) with the following characterization:
“Canada is a sovereign nation; they have a right to decide how free they want their speech to be. If the religious people in that country want to amend their constitution because they feel deprived of hate speech that’s ok with me too. The Canadian constitution is their beat.”
This is a slippery way to characterize what happens when you pass a law prohibiting hate speech (or any other kind of speech). It’s slippery because it keeps what is actually happening under the law under the cover of the collective entity of “Canada” (or “the Canadian people”). I know we use this sort of talk all the time as a short hand when we’re talking about politics; but here I fear it hides the important facts. What happens in Canada, under the law, is that some people in Canada have taken it upon themselves to decide what other people in Canada can say. And if those other people don’t like it, then they will be forced not to say it–or be punished for saying it.
Bigots say lots of scummy things that they ought to be ashamed to say. I have no patience with people who throw around polemics in defense of white supremacy, misogyny, gay-bashing, etc. polemics or who make up for their lack of coherent argument by peppering their speech with the vilest sorts of slurs. They deserve to be refuted, mercilessly mocked, shunned, and sometimes simply ignored. But if they are not directly threatening violence against a specific person (in which case the issue is not the content of the speech but rather the coercive use to which it is being put) then what could possibly give me the right to use violence to make them shut up?
We have to remember that that is what a law against hate speech means. This is how laws against hate speech are different from, for example, campus or workplace policies against hate speech (which, if they are well-crafted, I usually support). Policies in a workplace or a college aren’t enforced using violence; they’re codes of conduct that you agree to follow if you participate in a certain voluntary institution. Laws are not like that. A law prohibiting a certain kind of speech means that if you say something in violation of that law–even if what you said does no violence to anyone, involves no fraud and no direct threat of force–some goon in a government uniform is going to pick up a gun, point it at you, and make you take it back–and punish you for having said it in the first place. That’s what having a law means. And I can’t see how anyone could have the legitimate authority to act that way towards another person.
Similarly, I agree completely with parodie when s/he says:
There are few things in the world scummier than a bigot. But I can’t agree with the guideline for action that parodie draws from this:
It’s certainly true that the targets of hate speech are typically socially very vulnerable (which should tell us something else: that it’s not necessarily wise to trust the government to consistently have their best interests at heart; certainly the way that the Canadian government has used its obscenity law — which was allegedly reformulated by Butler as a protection against vicious hate speech against women — gives us many reasons to take pause at the idea). And it’s certainly true that the people who attack the vulnerable with wild and hateful assaults are incredibly vicious people. But violence–or the threat of violence–is not always the right way to deal with vicious people; whether it is or not depends on what the vice in question is.
(Let’s take a concrete case: Fred Phelps is a man who is fond of, among other things, going to the funerals of AIDS victims and picketing with signs to the effect of “God hates fags”, “AIDS cures fags”, that the deceased is burning in Hell, etc. Fred Phelps is a really vicious asshole; there are no words that are too unkind for him. But while Phelps is inhumanly cruel (and also, incidentally, spiteful, petty, prideful, and dishonest), he’s not committing an injustice against anyone. The way to deal with Phelps, it seems to me, is not to get a gun or a billy-club and force him not to do what he does; the way to deal with him is to shun him, insult him, stage counter-pickets that shield the funeral from his filth, and in general come up with creative ways to deal with assholes that don’t involve the use of violence.
Justice is not the only virtue. But it is the only virtue that is enforceable.
Lucia makes an excellent point. Yankees like us can have all the opinions about Canada’s laws we want–we can express our disdain or our admiration for them (I’ve certainly done so with other issues and other countries). But it seems a bit silly to get our knickers in a twist over it since Canada is a soveriegn nation, and the Canadians seem just fine with these laws.
And call me a bitter PC leftist, but I don’t think you’ve got the constitutional right to harass mourners at a funeral. I don’t think you’ve got the constitutional right to harass and intimidate people who are going into a clinic–this isn’t about workers striking for better wages or conditions, after all. I don’t think you’ve got the constitutional right to stalk people, picket their homes, post their pictures on the web, and encourage violence against them just because you don’t like what they stand for. That’s beyond speech–that’s privacy violation and harrassment. Write a letter to the editor. Publish a newsletter. Hold a rally. Start a blog. Certainly if you can afford to organize people and ship them to different cities to harrass others, you can afford to use the venues of actual *speech.* Intimidating and silencing the opposition is not part of free speech.
And let’s not forget that in a capitalist society such as ours in the US, free speech is a tricky concept. We don’t have complete free speech here, or access to alternate viewpoints, but it’s far more insidious than the stereotypical government stooge shutting down a newspaper or jailing dissenters. We’ve got corporate media to drown out the dissent, set the agenda for what the news and issues are, and give space and time to the pundits that they like.
How to fix this? I honestly don’t know. Private entitites have the right to decide what they will/will not broadcast, print, or host. I think one solution would be to reverse the conglomeratization of the media.
Curiously enough, godhatesfags picketed my workplace this past Sunday. I should probably blog about that.
Anyhow, I think it would be possible to find a compromise between the US laws, which allow private family events to be picketed, and Canada’s laws, which go to far in that even publishing a paper could get one in trouble. (And let’s not mention the way the Canadian border censors constantly use imports to harass feminist and lesbian/gay bookstores).
I don’t think a law allowing people to be censored for picketing private family events, such as a funeral of someone who was not in life a public official, would have a dangerous “slippery slope” to it. Nor do I believe that barring Godhatesfags from funerals would be a significant bar to their right to contribute to public discourse (they can still picket churches and town halls, after all).
Anyhow…
Radgeek wrote: Freedom of speech doesn’t mean being obligated to provide anyone with a microphone, and getting the government to force people to print or air views that they find absolutely repellant strikes me as no less tyrannical than getting the government to force people not to print views that the government finds unsuitable.
I agree. But unfortunately, that’s where your consideration of the topic seems to come to an end. Since we’re agreed that legislation forcing people to print views they find repugnant is the wrong way to go; and since we agree that what I’ll call “marketplace censorship” in the US is a problem; then what other solutions are available?
One solution is to require TV broadcasters to provide access to a variety of views as a condition of their licenses; something along the lines of the “equal time” laws that existed before Reagan. (This isn’t forcing someone to broadcast views they don’t like, because no one’s forcing them to lease public airwaves; it’s just a condition of the lease).
Another solution is to create a goverment-funded “national endowment for debate,” similar to the NEA or the NEH, which would own a public TV and radio station. They could have a bipartisan, scholarly committee which would analize public poll results, mainstream news coverage, and academic journals to try and find views that are undercovered (either because the public likes the idea much more than mainstream news sources and pundits do – such as anti-war views during the lead-up to the Iraq invasion, or anti-SSM views, or socialized medicine; or because it represnets a significant, well-argued intellectual trend in the academy that hasn’t gotten much mainstream play), and use their TV and radio presence to attempt to broaden the national debate. It could also provide grants to newspapers or magazine start-ups which could argue it would be serving a community of views that doesn’t have much access to newspapers or mainstream magazine stands at present.
No one would be forced to listen to it; but unlike today’s censorous climate, at least those views would be available to people who aren’t in the habit of seeking out obscure political magazines and blogs.
I’m just brainstrorming here. But my point is that when you say “well, we can’t force people to listen, or to broadcast views they dislike, so I guess there’s nothing to be done,” you’re giving up much too easily. There’s a lot that could be done to broaden the debate in national media that could stop short of Horowitz-type suggestions.
Oh, and as Sheelzebub just said, we could use the law to reverse the trend towards media megaliths. There’s no free speech right for any company to dominate the media in dozens of markets.
Curiously enough, godhatesfags picketed my workplace this past Sunday. I should probably blog about that.
Please do! I’m curious as hell, and in the comments I’ll tell y’all how I triggered a gay-bashing little picket of my high school by the “Traditional Values Coalition.” Wacky guys.
—JRC
Curiously enough, godhatesfags picketed my workplace this past Sunday. I should probably blog about that.
Oh yes, please do. Anytime Fred “I need another hobby and a good, swift kick in the head” Phelps and his merry band of inbreeds pickets someone, I know they are doing something right. I’d brag about it if I were you.
Besides the whole “soveriegn nation” argument about Canada, something that people tend to forget – with Canadians being so much like us in so many respects (my wife’s Canadian) – they are not Americans.
Canadians are a much more (on the whole) “communal” people. They care about their society as a whole much more than most Americans, and especially much more than many conservatives. Taking care of each other is very important to Canadians, hence universal medical care, various First Nations laws, and the hate speech laws. Americans are so often enamored of or consumed with “individuality,” where Canadians tend to care about society, about the community.
Think of that old saying: “It’s not wrong, it’s just different.”
Great post, Ampersand. And a great discussion thread as well!
I think that my position is not very far of from Rad Geek’s position. However, I feel like there is some confusion as to what exactly the Canadian “hate speech” laws prohibit. Raf Geek asks this question:
Essentially, the hate speech laws aim to prevent hate speech inciting violence.
from here
There is also a provision for hate speech which does not promote violence, in part (2):
However, if the speech is not promoting violence (i.e. falls under part (2) rather than part (1)), there are several safeguards in place (the person cannot be charged if the person can establish that what they say is true, or if the speech was pointing out the hate speech for purposes of removing the hatred, or if the person “expressed or attempted to establish by argument an opinion on a religious subject” e.g. in a sermon) (see the above link for the exact legalese, or here for a non-legalese explanation of the bill).
In other words, screaming “fags deserve to die” or “God hates fags” is illegal. But saying (printing, etc.) that according to your religious beliefs, homosexuality is wrong is acceptable. You just can’t follow that up with the suggestion that everyone should beat up one of these offending “fags” on the way home.
On the other hand, I am not very well versed in the Canadian obsenity law, and am unsure about what I think of it… I feel like the hate law and the obsenity law are two distinct entities, and the only thing they share is that they are both an encroachment on what is considered absolute free speech.
I realise the comments are drifting to other topics, I just wanted to clear up what seemed like misunderstandings. :-) And Amp – I’m very curious to hear your story!
“on a religious subject” seems unneccessarily narrow. There’s this weird distinction in much of Western law between religious views — which we should be tolerant of because they’re matters of individual faith — and non-religious philosophies. Atheists should be allowed to express their disapproval of homosexuality too.
Whew! Lots of good comments, and some burly material to sort through in replies. This is probably spinning out to the link where I’m going to have to carry my end of the bloviating over to my own weblog. But, in any case, most of the replies will have to wait until I’ve returned from Washington. For now, a couple of smaller items:
1. Sheelzebub prods me on what I think comes under the heading of “free speech” rights:
“And call me a bitter PC leftist, but I don’t think you’ve got the constitutional right to harass mourners at a funeral. I don’t think you’ve got the constitutional right to harass and intimidate people who are going into a clinic–this isn’t about workers striking for better wages or conditions, after all. I don’t think you’ve got the constitutional right to stalk people, picket their homes, post their pictures on the web, and encourage violence against them just because you don’t like what they stand for. That’s beyond speech–that’s privacy violation and harrassment. Write a letter to the editor. Publish a newsletter. Hold a rally. Start a blog. Certainly if you can afford to organize people and ship them to different cities to harrass others, you can afford to use the venues of actual *speech.* Intimidating and silencing the opposition is not part of free speech.”
I haven’t been clear here, so let me try to be as clear as possible. Sheelzebub is completely right that free speech rights do not cover harassment, incitement to violence, direct threats, or coordinated terrorism. I take it that the Nuremberg Files (the stalker / terrorist site that I think Sheelzebub is referring to above) is not protected by the First Amendment. Neal Horsley and the folks who participate in it are nothing less than coldblooded killers.
Nor do free speech rights entail the right to trespass on private property, assault people as they try to enter abortion clinics, harass workers and clients, etc. So I don’t take it that Operation Rescue-style assaults on clinics are protected by “free speech” rights, either. Hence, I agree completely with the passage of reasonable legislation such as the FACE act to stop this kind of harassment and trespassing.
But I do think that traditional pickets — whether by anti-choice fanatics at abortion clinics, or by striking workers at a store, or even by monsters like Fred Phelps, in inhumanly cruel situations such as the funerals of AIDS victims — are free speech. (Freedom of speech means the freedom to say all kinds of horrible things. It’s not that you should say them; it’s that other people shouldn’t force you not to say them.) As long as the pickets are held on public property (or private property that the owner has consented to make available), don’t interfere with other rightful use of the public property, don’t involve violence or threats against other people, I don’t see any good argument for using violence against these people — even if they have, as Phelps does, a festering pool of filth where their soul should be — to make them stop. And since getting the government to make them stop ultimately relies on violence, I can’t see any role for the government acting to stop them, either.
That doesn’t mean that you shouldn’t do anything to protect the bereaved or that you should give Phelps and his flunkies a pass. We should do everything we can–staging “Guardian Angel” line-ups and escorts for the mourners to block Phelps out of sight of the ceremony, running “pledge-a-picket” against them to support efforts to educate people about homophobia, insulting the Phelps goons, boycotting any business or shunning any person who lets their private property be used to stage the Phelps picket, etc. etc. etc. I just don’t see that getting the legislature to make a law forcing them to stop is the right way to approach it.
2. Sheelzebub also makes a very good point, but one which I think is obscured by the same conflation of terms that I tried to point to in Leiter’s post:
“And let’s not forget that in a capitalist society such as ours in the US, free speech is a tricky concept. We don’t have complete free speech here, or access to alternate viewpoints, but it’s far more insidious than the stereotypical government stooge shutting down a newspaper or jailing dissenters. We’ve got corporate media to drown out the dissent, set the agenda for what the news and issues are, and give space and time to the pundits that they like.”
I agree that public discourse is constrained — in some very troubling ways — in the United States. But I don’t agree that this constitutes a curtailment of “free speech.” (The “free” in “free speech” means freedom from government coercion, not freedom to access the means of publishing. It’s “free” as in “free choice,” not “free” as in “free lunch.”)
That’s why I tried to expand the term “academic freedom” to cover what I think both Leiter and Sheelzebub are pointing to here. Let me try to be clearer again: what I’ve called “academic freedom” is a good thing. It’s an absolutely vital thing to have in a civilized society, because it’s absolutely vital if people are going to make informed, reasonable decisions about their own lives and about the sort of society they want to live in. But the simple arguments for “free speech” don’t apply here, because the simple arguments for “free speech” are arguments against government coercion of conscience. The sorts of defects in American discourse that Leiter is pointing to, and which you point to here, aren’t defects of coercion; they’re something different. So I think comparing narrowing of public discourse through business or rhetorical methods to actual government censorship (which is what happens when “free speech” is used to cover both kinds of cases) is a serious misstep. It conceals the real reasons that academic freedom is valuable, and it opens up the floodgates to sorts of gambits that folks like Horowitz and Irving use to try to shake down people who (rightly) find their views absolutely insane.
3. In a similar vein, both Sheelzebub and Ampersand prod me for not having said an awful lot on what we can do to promote what I called “academic freedom.” Here’s Ampersand, for example:
‘But unfortunately, that’s where your consideration of the topic seems to come to an end. Since we’re agreed that legislation forcing people to print views they find repugnant is the wrong way to go; and since we agree that what I’ll call “marketplace censorship” in the US is a problem; then what other solutions are available?’
In line with what I said earlier, I’d object pretty strenuously to the use of the language of “censorship” here. But other than that, I agree completely; I can only offer the excuse that my post was horrendously long already and I hoped that these points would come out in conversation. :) In any case, this is a point that I’ll return to at some greater length in a few days.
4. Finally, thanks to parodie for clarifications on the Canadian “hate speech” bill; that is roughly what I understood it to say based on what had been said about it by Leiter and others.
I have no particular objection to clause (1), except for a general complaint that “likely to lead to breach of the peace” can be a pretty flexible standard in the hands of an overzealous prosecutor. But that is a complaint against “incitement” ordinances generally; there’s nothing peculiar to that part of the bill which is problematic. (Someone who had a problem with “hate crimes” statutes might complain that there’s no reason for clause (1) and that these sorts of offenses ought to be prosecuted under the existing incitement statutes. But I don’t have a problem with “hate crimes” statutes, so so far, so good, as far as I’m concerned.)
The problem, of course, is clause (2) of the law. I think that people who promote hatred of other groups are vile people, and I think we should do everything in our power to peacefully counteract their influence. They should (depending on the situation) be ignored, insulted, refuted, shunned, boycotted, picketed, or any number of other tactics that might be used to deal with them. But — if what they are doing is “spreading hatred” without threatening to hurt anyone, or actually hurting anyone, or stealing from anyone, or trespassing on anyone’s property, or in any other way using violence against them, then what justice can there be in getting a gun (or getting someone else in a government uniform to get a gun) and making them shut up? I cannot see it; and so (for the time being, at least :)) I’ll stand by my judgment of the “hate speech” law as regrettable. If I’ve made some mistake in the course of the judgment, I look forward to being corrected.
That said, cheers, all! More to come after the weekend…
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