April 13, 2005
NEO-VICTORIANS
'Democracies shouldn't fear free speech' (Dan Izenberg, Jerusalem Post, April 12th, 2005)
A prominent Canadian Jewish criminal lawyer on Monday condemned criminal legislation that restricts freedom of speech and said democracies should not be afraid to allow opinions, including detestable ones, to compete with each other openly.The lawyer, Edward Greenspan, who gave the annual lecture sponsored by the Hebrew University's Halpert Center for Canadian Studies, maintained that notorious Canadian anti-Semites like Ernst Zundel and Jim Keegstra should not have been put on trial for their vicious attacks on Jews. All the trials did was give these minor characters with their small followings free publicity and a media platform to promulgate their views; publicity which they could never otherwise have had.
Greenspan acknowledged that the situation in Israel was more complicated since a prime minister, Yitzhak Rabin, had already been assassinated by a political opponent and there was a possibility that Prime Minister Ariel Sharon could be killed over the disengagement plan.
But even as far as Israel was concerned, Greenspan maintained that only when incitement leads directly and immediately to acts of violence should it be outlawed. He stressed that it was not clear whether it was incitement that had led to Rabin's death or the act of a single "lunatic." He warned that the government might try to restrict freedom of speech in the wake of the struggle over disengagement out of a sense of "hysteria" stemming from the fact that one prime minister had already been killed.Greenspan recalled that when Daniel Pipes was invited to speak at York University in Toronto, the venue was switched to a curtained off section of a basketball court because of threats against him and the audience from pro-Palestinian activists. Nevertheless, before his talk began, a policeman from the Hate Crimes Unit came to warn him that he would be held criminally liable if he advocated genocide or hatred of a specific group in his speech.
In Canada, he said, "the distinction between talk and action has almost disappeared." Indeed, there seems to be no reason to stop them since speak out to protect the weak, salve hurt feelings and weed out hateful ideas. "They wanted to try to make Canada a nicer place in which to live," he said. "Somehow, they suggested the idea that liberal means nice, that the liberal, intellectual system fosters sensitivity, toleration, self-esteem, rejection of prejudice and bias."
But Greenspan said he did not agree with this approach, adding that it sometimes requires offensive behavior and the trampling of feelings to get to the truth. He said there are five decision-making principles in contention in North America today, but the only one acceptable to him maintained that checking of every opinion by every other opinion through public criticism was the only legitimate way to decide what was right.
Conservatives generally oppose hate speech laws because they justifiably fear they will criminalize politically incorrect speech and enforce the flavour-of-the-month prejudices of illiberal intellectuals and academics. Yet it is worth pausing to reflect that such offences are being created to fill a void created by the repeal or neutering of older laws designed to set baseline standards of public discourse, like sedition, blasphemy and criminal libel. In a sense they are an admission that the liberal/libertarian creed that righteous and reasonable opinions will always win out in the “marketplace” of the free exchange of ideas is naive and unsupported by history. Democracy and freedom must be maximized, but they do not guarantee public decency and civic order. Free societies can be objectively shown to be the most desirable ones, but the argument that absolute free speech will inevitable weed out noxious and dangerous ideas and ultimately result in general public tolerance and decency is a triumph of faith over experience. How frustrating it must be to all those who want to believe man is perfectible to see all the warts and flaws persisting.
This same phenomenon can be seen in other areas of modern public life. Sexual harassment codes and laws are offensive because they hang on the subjective mind set of the victim rather than on measurable objective behaviour, but something had to replace the vacuum left by the collapse of very strict laws and conventions governing the relationships of the sexes in public life. On this subject, the “free speech” is often just a euphemism for male exploitation. In Britain, the leftist/liberal destruction of many public order and decency laws has resulted in the enactment of draconian administrative “Anti-Social Behaviour Orders”. They are noxious and offensive to anyone who believes in the rule of law, but when drunken mobs of yobs spill into the streets every night to terrorize and vandalize, something has to be done and will inevitably be done.
It is strange that liberals like Mr. Greenspon (a kind of one-man Canadian ACLU) who insist that the truth will always win out in the unrestrained free exchange of ideas are often the ones most prone to see a religious upbringing that inculcates notions of decency and objective morality as warping one’s critical faculties.
Posted by Peter Burnet at April 13, 2005 7:18 AM1. America has survived quite nicely without laws against blasphemy, sedition or criminal libel for over 2 centuries.
2. 'Hate speech' laws do nothing but encourage hate speech. It creates a notion of it as a kind of forbidden fruit, much the same way that the drug laws encourage marijuana usage among rebellious teenagers.
3. Let's merely punish acts. We cannot assume that we can change men's hearts through the law, only that we can regulate their behavior. According to any polling data on the matter, about 15% of the American people hold views about Jews indistinguishable from those of the Nazis. Hate speech laws won't change that. But if we prosecuted people as criminals when they bulldoze a synagogue, locking them up and having them break rock for a couple of years, rather than making them watch Schindler's List and write an essay, we will have a lot fewer people bulldozing synagogues. Treat hooligans as hooligans, vandals as vandals, arsonists as arsonists and all will be well. Even if people don't like Jews, they understand that destroying private property needs to be punished in a civilized society.
This is not a matter of the 'marketplace of ideas' but simply drawing the line between offensive speech, which need not be punished, and offensive acts, which should be dealt with severely. Offensive behavior is never a requirement of getting to an intellectual truth.
Posted by: bart at April 13, 2005 8:04 AMBart:
I agree we are talking about the far edges here, but at some point words and actions become indistinguishable except in theory. The case he is referring to involved a much-honoured and respected aboriginal leader letting loose a "Hitler was right", Protocols of the Elders kind of tirade. He did not call for anybody to do anything, but he was promoting general contempt in emotive terms and it is just silly to pretend there will be no influence on others or that such talk will not eventually lead to action unless society finds some way to let all and sundry know it is beyond the pale, especially in the community he represents and influences.
If a pastor thunders down contempt for gays week after week in the most vivid and scatalogical terms and convinces his parishioners that they and their children are in great immediate danger, something will eventually happen. We know this by virtue of our membership in society. There is a strong argument that it most cases it's a price we have to pay, but to argue there is no price or it will all have a happy-ever-after ending is naive.
I probably wouldn't disagree with your position in very many actual cases, but at some point basic decency matters and conflicts with freedom. Also, is there not a distinction between ordinary joes and people in positions of leadership and trust? And I think your wrong in your point 2, both about hate speech and marijuana.
Posted by: Peter B at April 13, 2005 8:41 AMThis is a nice example of the archtypal BrothersJuddian point that a strong culture and weak government is better than a weak culture and a strong government, and those are the only two choices.
Posted by: David Cohen at April 13, 2005 9:09 AMDavid:
Thank you, you've put it better than I did. I guess the lesson is that anyone who is opposed to hate speech laws had better work hard to ensure there isn't much hate speech in their society and that what there is is sanctioned fast and hard. Do you think it's a job for Bart?
Posted by: Peter B at April 13, 2005 10:20 AMThe problem with all laws, everywhere, is selective enforcement.
I am convinced that governments pass laws to punish only a small percentage of offenders: those whose real offense is being a threat to the lawmaker's jobs. This is why I have always leaned against capital punishment. Not that I oppose such punishments, but that I fear it will be used against me for expressing my views. (Yes, I've been reading Solzhenitsyn recently.)
Hate crime laws have a nice sound to them but are ultimately enforced in order to suppress dissent. Additionally, I believe that hate crime laws are designed to justify punishing a criminal in a society that forgives criminal activity if the criminal can be described as a victim of some sort.
In other words, hate crime laws attempt to convince a decaying society that the victim is still more of a victim that the perpetrator.
Posted by: Randall Voth at April 13, 2005 10:39 AMLaws don't prevent people from being Nazis. But laws can prevent people from Nazi-like behavior. Making Buford Furrow a head shorter, courtesy of a guillotine, for shooting at kids in a kindergarten at a synagogue will go a lot further to ending violence against minorities than 100 hate speech prosecutions against the Ernst Zundels of the world.
I agree with Greenspan on the notion that prosecuting these idiots for what they write will only serve to give them free publicity. And Peter I think you misunderestimate the effect that the conspiracy mind-set has in all this. There are lots of folks out there whose reaction to a government ban on some kind of speech, will be to perceive it as being evidence of the very truth of that speech, or else, 'why is the government keeping it from us?'
The question of incitement gets dicier. If Rev. Fred Phelps, of 'God Hates Fags' fame, were to denounce gays in general from the pulpit in the scatalogical language he prefers, it is certainly distasteful but should not be illegal. If he says that gays should be killed, I don't think we ought to ban him, but if he says 'the gay bar over on 4th and Main should be firebombed while it is open so you can kill as many fags as you can' and then some imbecile in his congregation goes and does it, then I think there is some reason to prosecute. It is not unlike the mobster wiretapped saying that 'Judge X should be killed' and then Judge X gets killed. We do not shrink from prosecuting the mobster and we should not shrink in a similar instance from prosecuting Phelps.
At the risk of sounding trite, it just seems to me that to go any further in the direct of speech regulation is to slide dangerously down the slippery slope to authoritarianism. How long will it take for some judge or politician to decide that opposition to racial preferences is hate speech? Canada already has seen ministers prosecuted for claiming homosexuality is a sin.
Posted by: bart at April 13, 2005 12:45 PMBart:
"Canada already has seen ministers prosecuted for claiming homosexuality is a sin."
This is news. When?
The CPC complain about this almost every day in the House Hansard up there. I thought there actually was a case involving the prosecution of someone in Ontario. If not, according to the CPC, there soon will be as the laws don't foreclose the possibility.
Posted by: bart at April 13, 2005 1:38 PMNot that I'm aware of, although there have been cases before human rights tribunals forcing Christian printing houses to accept gay business and messing around with education, etc. Haven't heard anything about churches themselves, though. I think the beautiful people know better than to try that one.
The only actual prosecutions under the hate speech legislation that I am aware of were of a notorious in-your-face teacher-Holocaust denier from Alberta and the aboriginal dude described above. Neither are good ones to line up behind on grounds of principle.
Posted by: Peter B at April 13, 2005 2:00 PMThere are two problems with any regulation of speech.
One is that no matter what you mean to say, you cannot control how it is perceived. So, if we take the example of a bad act resulting from a publication, we do not need to consider only the firebombing of a gay disco, but also the innumerable instances of men murdering their families because of their interpretation of the Bible.
If that means suppressing the Bible, I would not think that a wholly bad outcome, but I'd be opposed nonetheless.
Posted by: Harry Eagar at April 13, 2005 2:46 PMHarry:
Way to go! Christians to the left, Christians to the right, but still you stand firm.
Posted by: Peter B at April 13, 2005 4:10 PMPeter
Here is a case of a minister being prosecuted for referring to homosexual activity as a sin
Peter,
The teacher is a different issue. He can be dismissed. The intentional teaching of obvious error, whether it is in Moose Jaw High or Columbia University should be cause for termination. Jailing him seems excessive.
Harry,
The unambiguous statement followed by the unambiguous criminal act is where I would permit punishment for speech. Think of it as the Thomas a Becket rule.
I don't see any reason to 'suppress' the Bible any more than the Koran, which demands the murder of the non-believer on pretty much every page, as well as a healthy dollop of oppression of women.
Restrictions on the Bible would cause infinitely more problems than they would solve.
Posted by: bart at April 13, 2005 7:54 PMBart, I am for free speech. I am not Orrin.
But if you allow people to read the Bible, a percentage will find instructions to kill their families in it, and follow through.
Posted by: Harry Eagar at April 15, 2005 2:28 PMI have no doubt that there are people among us who upon reading the Manhattan Phone Book would see a reason to butcher someone else. However, for most of us, the Bible, both Testaments, are a source to inspire us to the better angels of ourselves not the worst. IOW, if someone is already psychotic, it doesn't take a whole lot of inspiration to push him over the edge.
Posted by: at April 15, 2005 9:39 PMLike I said, you can try to control what is published, but there is no way to control how what is published is received.
There's no doubt that more people have been killed as a result of interpretations of sacred texts than as a result of anything that anyone here would object to as pornography, obscenity etc.
The massacres of the Iconoclasts/Antiiconoclasts were real. There have been no massacres attributed to the Sports Illustrated swimsuit issue.