Of Free Speech

Today I responded to the following comments by Publius  as I attempted to gather some thoughts around free speech and Human Rights Commissions. Any further thoughts?

In a free society people have a right to be foolish, wise, narrow minded or enlightened. Curtailing their right to speech does not change their mind, it simply drives their views underground. You’re trying to set up a duality here. That between fighting racism and preserving freedom their needs to be compromise. So these commissions are that compromise, whatever the details involved in how they are run. I’ll put to you that if you’re really, and truly, interested in fighting the type of mentality that puts up signs saying “No Irish Need Apply” the last thing you should do is prevent them from putting up those sides. You don’t fight racism by banning racist speech. These Human Rights Commissions – a darkly ironic name at best – are based upon a very great conceit: That you can force people to think as you choose them to think. They are defended as institutions that prevent discriminaton. They do nothing of the sort. Hauling a few bigoted landlords or employers before these commissions, and more recently hapless fools trying to criticize gay marriage by quoting from scripture – surely something that should bother an ordained minister such as yourself – does precious little to help the lot of the marginalized.

Only the ignorant or clumsy bigot is ever caught by these types of laws. If someone doesn’t want to hire Irish or Jewish workers, they can find other excuses. No doubt, you’ll reply that we can pass more laws to prevent that. Have employers complete yet more reams of government paperwork to ensure they behave as you wish. If you carry this to its logical conclusion you have a totalitarian state, where any bureaucrat can question your motives or intentions. The slippery slope maybe a cliche, but like most cliches it’s also the truth. Had the Davis government foreseen how these commissions’ remits would have expanded thirty years ago, they probably wouldn’t have been created.

The essence of being human is free will. Force and mind are opposites. No matter how right you are, you cannot force someone to agree with you. You may compel outward conformity, but the second your head is turned the heart and mind’s true intentions will reveal themselves. If the goal is to fight racism, then let the racists speak freely. The best disinfectant is sunlight, another cliche and fundamental truth.

Perhaps you’re afraid that if we don’t have these commissions, then once again we’ll see the No Irish Need Apply Signs. Perhaps a few, not many. Why? Because racism is an anathema to most Canadians. Any shopkeeper who placed such a sign in their window would open themselves to public humiliation and boycott. Much more quickly than any government agency could act, the market would have spoken. Either the sign will come down or the shopkeeper would finds himself in another line of work. Have a little faith – to pardon the expression – and believe that the people of Canada are grown-up enough to choose for themselves. And decent enough to choose wisely and justly.

There is this strange paranoia among those in government, especially on the Left, that unless men are regulated to within an inch of their lives they will run riot. It is only by the grace of the politician and the bureaucrat that we live in relative harmony. This is another conceit. Societies determined governments, not the other way around, and individuals compose a society.

If you had had these commissions a century ago, and there were similar institutions in the English speaking world then – recall the Lord Chamberlain – they would NOT have opposed the anti-Jewish or anti-Irish bigotry of their times. Governments are no wiser or morally superior to the societies they emerge from. The only reason we have these commissions is because of the well meaning, but misguided attitudes of many Canadians. Because they find racism so appalling they applaud efforts to stamp it out, not paying close attention to the subversion of their traditional rights undertaken in their name.

The Human Rights Commissions are immoral because they deny us our inalienable rights, they are impractical because they fail to accomplish what they set out to do. They are impractical because they are immoral. One day, perhaps in the distant future, statists such as yourself will understand that decency, justice and compassion cannot be brought forth at the point of a gun. That freedom is both the moral and the practical.

“In a free society people have a right to be foolish, wise, narrow minded or enlightened.” 

Is the concept of a “free society” so obvious and self-evident? I’m curious that you didn’t describe such a right of expression as unconditional/unlimited (or is it implied that all rights are unlimited?). Does our freedom of expression entitle us to libelous or hate speech (is that covered by the right to be “foolish” or are you cleverly avoiding it?)? Because, of course, one of the problems with rights is that they sometimes bump up against other rights and thus they can’t all be absolute. When rights conflict, I assume you adhere to some harmonizing standard. What is it? The harm principle, the Law, the invisible Hand of the market, Reason or do you flip a coin to decide which right supersedes another right. Or is your world so well greased that rights never conflict? My sense is that the very definition and contours of a free society is dynamic and highly contested in a given society. We do this in our everyday lives, as well as through elections, activism, etc. 
I’m always intrigued that those who ardently defend people’s right to impart information which is stupid, hateful, and defamatory so seldom appeal to what are widely acknowledge as other facets of the freedom of speech; namely, the right to seek and receive information and ideas. Freedom of speech for me is intertwined with a host of other rights and concepts. For instance, the right to education. If we’re going to, as much as possible, defend people’s right to express themselves we ought to provide people with the best education possible. Ignorance and freedom of expression are a volatile mix. 
As well, often when I think of freedom of expression, I think of J.S. Mill’s concept of the tyranny of the majority. It seems to me the spirit of free speech for him was to mitigate against the tyranny of the majority. Majoritarian systems are much more democratic than the alternatives, but an inherent danger is the “tyranny of prevailing opinion and feeling” for which their can be no safeguard in law. It’s like the invisible law of conformity which shapes people’s values and behaviour. 
You’re little hero Mark Steyn claims “I agree with the view that the ultimate minority is the individual and classically, historically, common law has been entirely antipathetic to group rights, because who can speak for a group? The notion of group rights should be an abomination to a settled democracy as old as this province.” 
He ignores, I think two important points. First, this works nicely when an individual has been granted personhood and thus full rights. It hasn’t always worked so very well for the non-white, the unpropertied, for women, etc. because for most of the glorious history of our great democracy members of these groups didn’t qualify as individuals upon whom was conferred full rights of personhood. It was in fighting for group rights that members came to be seen as full persons. Second, setting up the individual as the sole locus of freedom ignores the shaping power of culture and the tyranny of the majority. 
You seem to argue for a libertarian approach to unregulated speech. I think the argument parallels the argument for a self-regulating market. Pursuit of self-interest in an unfettered market will lead necessarily to a better and more ethical society because there is the invisible Hand (is this God’s own hand or some other invisible hand?) ever so slightly intervening and guiding the market. The same applies to the self-regulating marketplace of free speech. Limit no individual act of expression (child pornography, hate speech, libel included) and have faith in the invisible POWER of Logos? (Reason/God), perhaps Evolution? to naturally select out bad ideas and nudge us progressively towards some absolute Good. I have several issues with this. If the invisible power guiding the self-regulating market of ideas is God, and here I assume the Christian God, my Christian God is a non-interventionist God. If the guarantor is Reason/Enlightenment, as an advocate of psychoanalysis, the Frankfurt School, and Post-structuralism I say “burn me once, shame on you, burn me twice shame on me”. If a kind of Darwinian natural selection is behind this, then there is no guarantee that the ultimate aim is Good, since evolution admits of no teleological, necessary conclusions. 
Believing in invisible forces is one thing, (I can let that slide, I’m partial to an “unconscious” myself) but the faith possessed by the faithful is just so fragile. Why is that those professing to be free speechers so often resort to purely ideological/tautological, puerile, hateful defenses of their very narrow worldview? Don’t believe me, go to SDA (I would suggest Kathy Shaidle’s site but she’s one free speecher who doesn’t believe in a comments section) and post a contrarian comment, and you will be met with bile, personal attacks, dogmatic and self-evident statements. Unreason not Reason is what awaits you in the free speecher world. 
More importantly, if libertarian unconditional free speechers really had faith in Reason, why are they so often moved primarily by fear and looming catastrophe’s. I mean, free speechers, I implore you, go all in! If God, Reason will prevail in your wonderful self-regulating market trust and have faith that the socialists, and wanton liberals, and evil Islam will all be vanquished by the Invisible Hand. 
“I’ll put to you that if you’re really, and truly, interested in fighting the type of mentality that puts up signs saying “No Irish Need Apply” the last thing you should do is prevent them from putting up those sides [sic]. You don’t fight racism by banning racist speech.” 
Even Steyn understands that banning putting up such signs is not simply a matter of banning racist speech. It’s a discriminatory practice that impinges on the law. As he says, “I think that’s to do with basic equality before the law. I recognize laws of public accommodation. I recognize, for example, that if you have a restaurant, you can’t say that the Jews sit at this table and the Muslims sit at that table.” I think trying to be more free speechey than Steyn puts you automatically in pretty dangerous territory. 
re: Fighting Racism. I don’t believe we should ban/censor speech that is racist. But nor do I believe as you suggest that racist bigotry should go unopposed, by government or individuals. I don’t understand why free speechers would argue for their right to shoot out bigotry, but not their right to experience the recoil associated with it. Fighting racism has many components and one of them is contesting cultural norms, ideas, values that could legitimize racism. I believe people are more profoundly influenced by culture and socialization than you suggest. We are engaged in culture war! Then there’s the issue of power and structural inequality, but you probably, I bet as a white man, don’t subscribe to such silly notions, so I won’t go there. 
But more importantly, I find it interesting that you set the matter up as an either/ or situation. You concede a kind of market driven utilitarian ethics towards racism. Racist discrimination will be stamped out because the consequences visited upon racist bigots through by the nice ethical market and the humiliation that would follow will curtail such behaviour. Will their minds follow? What of prejudice? If consequences shape behaviour, isn’t a HRC just another consequence in the fight against prejudice and discrimination? 
“Only the ignorant or clumsy bigot is ever caught by these types of laws.” 
You seem to have a high opinion of bigotry. My experience is that bigots are quite proud and brazen. 
“These Human Rights Commissions – a darkly ironic name at best – are based upon a very great conceit: That you can force people to think as you choose them to think. They are defended as institutions that prevent discriminaton.” 
Seems to me HRC’s were set up (how effectively is open to discussion) to assist people facing discrimination. The idea of providing advocacy to empower people to fight discriminatory practices is laudable. I also don’t find HRC’s acting in their capacities as commentators not to be terribly objectionable (although I do have some sympathy with Steyn when he argues that a certain case was possibly prejudiced by such commentary). Your view that HRC’s are part of a governmental regulation of people to within an inch of their lives, or forceful thought control, or attempting to generate justice and compassion from the barrel of a gun, and, of course, the inevitable comparisons to Nazi Germany that would soon follow are “just a tad outside”. You’re being just a bit histrionic and, frankly, disingenuous.
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Posted on February 20, 2009, in Uncategorized. Bookmark the permalink. 1 Comment.

  1. Your argument is better thought out that most on the pro-HRC side of the debate. You resist the urge to call anyone a Nazi. Although I think your argument against a libertarian ethic based on how it has failed women, minorities etc. is flawed. While Im not a libertarian I think the response would be that it isnt that libertarianism has failed, but that we havent been libertarian (with respect to minorities etc.)On the narrow subject of Human Rights Commissions adjudicating expression, I think now Chief Justice Beverley McLachlin best summarized my view on the subject in her dissent in the Taylor decision on the constitutionality of those provisions:”There can be no doubt that the prevention of discrimination and the maintenance of social harmony and individual dignity are of the utmost importance in our multicultural society. Expression which threatens these values can properly be limited by Parliament and the legislatures. But the limit must be effected in a reasonable manner, proportionate to the evil and sensitive to the fundamental right of free expression. It is the breadth of the prohibition which creates the difficulty in this case. On all three criteria for proportionality laid down in Oakes, s. 13(1) of the Act emerges wanting.”

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