Absolute speech freedom? Absolutely!


Blogging requires a bit of a thick skin, or at least a certain amount of self-assuredness. The more people scrutinizing your ideas, the more likely you are to have people openly disagree with you. I recognize that I am breathing fairly rarefied air, here at Freethought Blogs – most of the people reading my posts already agree with most of my basic premises. There are perhaps a handful of topics that I introduce in a given month of blogging that are foreign to 90% of the readership here. I recognize that. I also recognize that by the virtue of not owning a uterus, I will escape a lot of the uglier side of attacks (since everyone knows racism is bad, but misogyny still seems to be okay).

This is why I’m always somewhat buoyed whenever I come across someone who can express my opinion for me:

For the record, I fully support gay rights. I also fully support free speech. That means anything this side of incitement to violence. I believe the current law is dreadful, because even the wisest people find it tough to draw the line between speech that’s merely offensive and speech that’s downright hateful. And in my limited experience, even human-rights bureaucrats aren’t always the wisest people. In any case, that line will always be hopelessly subjective.

I will make a confession – I would be in support of hate speech laws if two important things happened: 1) a specific definition of ‘hate’ could be developed and consistently applied that separates, say, criticism of Islam or misgivings about immigration from Islamophobia and racism; and 2) it can be demonstrated that banning hateful speech has a measurable effect of reducing hate. The first one I think is the toughest. I can spot racism a mile away, and my radar for sexism and homophobia are becoming pretty well-tuned. I despair, however, at the ability of any person or group of persons to define ‘hate’ speech except circularly. When it comes to legal punishment, definitions are important. If it were just a question of labeling, then go nuts – call whatever you like “hate speech” at that point. In the absence of a clear definition, I can’t support the idea.

Second, as someone who spends a great deal of time trying to explain to people who “aren’t racist or anything but…” that racism still exists in the absence of clear, unequivocal hatred, I am unconvinced that banning hate speech will be helpful. We didn’t have to enforce bans on the word ‘nigger’ to phase it out of popular usage. We just needed to educate people (which I think we’ve done a half-assed job of, but whatever). We didn’t need to ban the use of the words ‘faggot’ or ‘retarded’ – those are losing popularity as people become more aware of the unintended harms those words convey (which isn’t to say that they aren’t used anymore, or that they aren’t still causing harm – only that our reaction to them is very different than it was, say, 10 years ago). To another point – if we, as a society, have to deal with bigots, I’d prefer they be as open and notorious in their bigotry as possible – makes ‘em easier to spot.

I also particularly liked this paragraph:

For that matter, if we’re determined to ban speech that’s truly hateful, then why not start with the Bible and the Koran? Our holy books are laced with homophobia, intolerance, anti-Semitism, ethnic cleansing and wife-beating. It’s astonishing that we allow our children to be exposed to them. Or, as Mr. Justice Louis LeBel put it at Wednesday’s Supreme Court hearing, if we were serious about banning hate speech, “the Human Rights Commission would be in the position of reviewing the scriptures.”

Well that part I could get behind, perhaps. :P

The discussion of hate speech is certainly not an abstract one for me. As a black Canadian, I’ve been privy to the kind of racist hatred spewed by those that the social progress of the last century left behind (although, thankfully, comparatively little has been directed at me personally). Every time I hear about a cross burning or a hateful graffiti tag, or when reviewing the nonsense justifications after a black man is physically attacked for the crime of being black, I recognize the harms that hate speech cause. Not in a diffuse “oh this is an interesting issue” sense, but in an “I could be next” sense.

Yet my stance remains fixed. Hate speech laws are too poorly defined to have any legal legitimacy, and are far too likely to end up criminalizing legitimate speech. There are those who say that “it couldn’t happen here” – I find that an incredibly naive argument that was likely used by Americans prior to the rise of the Religious Right. All it takes is a few zealots, the right political climate, and legal precedent, and we end up losing the most precious freedom that is the bedrock of our democracy – the ability to speak. I am in favour of recognizing and condemning hate speech (in fact I think politicians and other public figures should be doing more of that). I can be persuaded into supporting additional fines for hate-based crimes (although I am not currently in favour of them). I simply cannot accept the virtue of deeming certain types of speech illegal.

I realize my stance puts me at odds with many that I would otherwise consider allies. I realize that my stance puts me in the same camp with many people whose beliefs I despise. I realize that there are people who are more directly victims of hate speech than I am who heavily favour these laws. None of these realizations are sufficient to sway me from my position – they simply make me desperate to hear a compelling argument refuting it.

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Comments

  1. Eclectic says

    On a related note, I’m very uncomfortable with the entire notion of “hate crime”.

    As far as I can tell, the basic concept is that it’s extra-bad if you take one member of a disliked group and attack them for the evils of the group.

    But how the hell *else* can I protest an abstraction without choosing a concrete examplar to complain about? Is it a hate crime to picket one Wal-Mart store when my objection is to large corporate monopolies? Is it a hate crime to picket Wall Street when shyster bankers are spread out far more?

    Following this logic, it makes perfect sense to protest a gay pride event. Or even a specific gay wedding.

    Is it illegal to have a threatening protest? I suspect the Homestead Strike was seen as quite threatening. Does it take violence on the other side to make it legal?

    Maybe there is a clear line that can be drawn here, but I’m not seeing it.

  2. fastlane says

    Wait.

    You’re Canadian!?!?!

    I’m outta here!!

    I kid. =P Good post. Not sure how much you follow Dispatches, but he’s been saying something similar for a while now. Like Ed, I’m pretty much a free speech absolutist. I’d rather have the bigoted idiots out there, allowed to say (almost) whatever they want. We, in turn, are allowed to respond.

    Even incitement speech should be very very narrowly interpreted.

  3. Etcetera says

    I agree wholeheartedly that hate needs to be better defined in hate speech laws. Those definitions tend to get worked out in courts when precedents are set: and that applies to every word of every law, not just those pertaining to hate speech. The application of the rule so far seems to be that if the speech advocates violence or lies sufficiently about a group of people to the point where violence becomes a reasonable course of action, it is defined as hate speech.

    I for one, am comfortable with that definition. In my interpretation, it is a less robust form of libel or slander (which already exist, even in the U.S.) and applied toward a group of people rather than a specific person.

    For example, if Whatcott had distributed flyers that had named a specific gay person to have anal warts, engage in pedophilia and spread disease, he would have lost a libel case without a second thought. Because his flyers said that gay people as a whole have anal warts, engage in pedophila and spread disease, libel cannot be invoked. No specific reputation was harmed even though it damages the reputation of gays as a whole.

    To make it hate speech, one has to hit an incredibly high bar. You would have to show that violence toward gays is a reasonable outcome of these assertions. I highly doubt the court will accept that it is.

    I fully appreciate the fear of being unable to legitimately criticize. Rwanda is hardly a fair comparison, though. I simply don’t see it in the Canadian law as written, nor in any of the precedents.

  4. Crommunist says

    Protesting the Pride parade doesn’t qualify as a hate crime. The way I’ve always understood hate crime legislation is that if something is a crime, there is an added fine/sentence if the motive was clearly hateful and could reasonably be expected to affect not only the victim of the crime, but the entire group that the victim represents. It usually refers to groups against whom there is a systematic prejudice/oppression (Wall st. bankers don’t count). That’s at least the standard here in Canada, afaik.

  5. says

    I could not agree more, Ian. I have long written about Canada’s hate speech laws and opposed them, not because I support anti-gay or anti-Muslim rhetoric (which is what seems to trigger those laws most often these days) but because I am, like you, virtually a free speech absolutist. The answer for hateful speech is our own speech, not the government. Incitement to violence is illegal nearly everywhere, as it should be. And that should be enough.

    When I write about such things, I inevitably get someone accusing me of being provincial or believing in “American exceptionalism,” which is utter nonsense. I strongly criticize my own government for its violations of free speech as well. But if we are to believe in the principle of free speech, that principle should be applied everywhere at all times or it isn’t a principle at all.

  6. Crommunist says

    The answer for hateful speech is our own speech, not the government. Incitement to violence is illegal nearly everywhere, as it should be. And that should be enough.

    As Etcetera points out, oftentimes it isn’t enough. I am not convinced, however, that laws restricting speech are enough. The very idea is predicated on the premise that such laws will inhibit the practice of hate speech, and I have seen little evidence that punishment acts as a crime deterrent in this way. I think that social pressures have demonstrated themselves to be up to that task, and do not require the involvement of the justice system (as imperfect as it is).

    Thanks for the support, Ed. It’s nice to have an ally in this matter that I actually like and respect. Too often I am forced to defend bigots and assholes with whom I share this one position.

  7. says

    Original article & comments here TL;DR for now. I’ve spent most of my afternoon over at Jason’s blog and really should be doing some work right now. Just wanted to say:

    I disagree. The definition is clear enough in the statutes that case law and the judicial system can do the rest. At least it can do a better job than having no hate speech legislation at all. Our rights are similarly not very well defined, but the Charter seems to be doing a (basically) decent job.

    I think the benefits far outweigh the risks.

    The only change I’d like to see is “sex” included among the protected groups.

  8. says

    Why should “incitement to violence” be treated differently than “hate speech”?

    Sometimes, forcing people to act violently through, say, civil disobedience should be permissible, right?

    If the OWS crowd were not to leave the private park, where they are illegally camped, aren’t they really inciting violence? Yes, they are not asking people to hit someone, but they are inciting the police and law enforcement to commit violent acts so as to further their cause.

    If not for the earliest freedom fighters inciting violence, we would not even have the First Amendment in the US, the one that grants you free speech in the first place.

    Citing the biblical examples of how God asked Sodom-ites to be dealt with in a gay pride parade *is* inciting violence. Or is it hate speech?

    If you have to define ‘hate’ for ‘hate speech’ precisely, shouldn’t you have to do the same for ‘inciting’ in ‘inciting violence’?

  9. Crommunist says

    Sometimes, forcing people to act violently through, say, civil disobedience should be permissible, right?

    This sounds dangerously like “I didn’t want to hit her, but she wouldn’t listen to me, so I had to.” Passive resistance is not in any way the same as incitement to violence. Not in a philosophical sense, and certainly not in a legal sense. Your connection between “freedom fighters” and the First Amendment is pretty tenuous – that’s like saying the Inquisition is responsible for the Enlightenment, because that movement never would have happened if the Church hadn’t been so corrupt.

  10. julian says

    ((Warning: Whiny and Rantish with a chance of clueless))

    Meh

    The only speech I’m willing to get worked up defending is speech that is, at the very least, neutral.

    Call me juvenile or whatever, but someone engaging in hate speech is not going to get a single tear from me unless the penalty they face is disproportionate (which is another issue) to the offense they committed.

    Free Speech isn’t an absolute principle. Free Inquiry? Free Criticism? Open Debate? Sure. Free Speech should depend on the speech. Slander, bigoted remarks, misinformation? Yeah, no. These are not things that deserve protection. They deserve critique, correction and a not to friendly rebuke.

  11. says

    IANAL but I think you’re describing the US situation, Crommunist (i.e. where hate crime is a designation that intensifies the sentence).

    If you’re protesting Wal-Mart, that’s not a hate crime, no matter what you say (though if you’re inciting people to violence, there are laws that cover that under separate legislation).

    If you’re protesting the Pride Parade and your sign says

    “I hate gays” that’s not hate speech.
    “Gays deserve to die” that may be hate speech, if you can’t establish that it is “an opinion based on a belief in a religious text”.
    “God says gays deserve to die” that’s not hate speech.
    “Round up all the gay people and put them to death” is hate speech.

    (all subject to the AG’s and then a judge’s decision of course).

    If anyone is interested in actually reading the legislation, it’s here:

    http://laws-lois.justice.gc.ca/eng/acts/C-46/page-136.html

    (sections 318-320)

  12. Crommunist says

    They deserve critique, correction and a not too friendly rebuke.

    Agreed. But not prison time (well, except slander, provided it can be proven in court). By the way, you can’t say that free inquiry/criticism/debate are absolute principles without free speech – they’re synonymous. Sometimes people offer opinions that seem bigoted or misinformed, but end up being accepted despite initial opposition. I’m sure hardline religious believers find most of what I say about religion to be pretty hateful. I’m sure many of those same people think they are making a spirited and reasonable criticism of homosexuality and our declining social sense of morality.

  13. Etcetera says

    In regards to punishment being a deterrent, my concern is not the trolls like Whatcott. You’ll never get rid of everyone like him. Nor should we; they prove a point. My concern is media outlets (Fox, Sun) which are not afraid of pushing the envelope but concerned enough about their businesses that they could be shut down by repeated claims. There is an unfortunate subset of the population that holds these views. Allowing them to become legitimate through media outlets will undoubtedly lead to an echo chamber. To that end, I don’t see free speech from voices of reason having any impact on Fox News’ ratings.

    To use an internet analogy it’s all well and good to ignore trolls, but even the most patient of moderators has to bring out the banhammer once in awhile.

  14. Etcetera says

    I’m fairly certain that the hate speech law as applied in Canada has yet to enforce a prison sentence. To my knowledge, some fines have been ordered as well as an injunction to cease the offending activity.

  15. julian says

    ((same warning as before))

    By the way, you can’t say that free inquiry/criticism/debate are absolute principles without free speech – they’re synonymous.

    Not the way I’ve always seen them. Free Speech is just that, free speech. It’s the right to express any view and say whatever you please.

    Open debate (to me at least) while it hinges on some of the aspects of free speech, has much more to do with evaluating an idea or claim and working out the merits in it. Same goes for inquiry and criticism.

    I’m told that’s the point of free speech but I’m not seeing it. If the point of free speech were in fact to foster open debate and to examine ideas critically that’s where the emphasis would be. You would emphasize coming to the table with an open mind willing to work out with the other participants wants really going on. Instead the emphasis is on the protection of words, phrases and statements. Which I understand as you do need to protect individual opinions for debate to occur.

    But the debate never actually takes place. Instead of ‘he has the right to submit his ideas to scrutiny and argue for them’ it’s ‘he has the right to believe and say x’ where is x is some entirely unsupportable position. The former would be free inquiry, the latter is free speech. The former protects the individual’s ideas and his role in the larger discussion going on in society. The latter protects the individual’s right to run his mouth.

    It’s like the right to bear arms [Crommunist’s note: the right to “bare arms” is about dress code :P] vs the right to resist a tyrannical government.

    ((probably just chased my tail through all that :/))

  16. says

    The former protects the individual’s ideas and his role in the larger discussion going on in society. The latter protects the individual’s right to run his mouth.

    Do you understand that the right to run ones mouth is a pre-requisite to protecting the larger discussions going on in society?

    Do you understand that “they are running their mouth” is an evaluative opinion that can be aimed at any statement? Such as “there is no god”?

    Do you understand that many of the religious hand-wringers consider “there is probably no god, now stop worrying and enjoy your life” to be nothing more than ‘running their mouth’, and would gladly use legal measures to interfere with it?

    Do you understand that if you allow the running of ones mouth to be prohibited, you are then in the position for legally demonstrating that your opinion is part of a greater debate rather than merely the running of your mouth? What could you *possibly* say to those people other than “no, *really*, I’m part of the greater discussion”, when all they say in response is “nope, you’re just running your mouth”?

  17. otrame says

    I am also a free speech absolutist. To paraphrase Dennis Miller, (back before 9/11 scared him so bad that he turned far right): Do I want to listen to a bunch of hateful people spouting their slime all over the place? Yes. I want to know what they are thinking and what they might do.”

    Pushing hate speech underground does not stop hate. I believe in the curative powers of light on hate. Get it all out in the open. Let everyone see how hate twists into evil. Let the haters say their piece. Then say yours. Over and over again.

  18. says

    The US legal system does a lot of things I strongly disapprove of, but one thing it handles better than any other developed country is free speech. The government should not be in the business of regulating content. The idea that the government can dictate what are and aren’t legitimate opinions to hold is far, far more horrifying than allowing bigoted idiots to spout their nonsense. The best response to bad speech is more speech. Racism, for example, is still a serious societal issue, but we have come a long way in the past hundred years, and it wasn’t because of the government prohibiting certain opinions. It is because the marketplace of ideas works.

  19. julian says

    [Crommunist’s note: the right to “bare arms” is about dress code ]

    I reserve the right to bare arms, bear arms, arm bears and armed bear cavalry!

    Also I am shutting up.

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