Is everyone up to speed on writer Mark Steyn’s troubles up in Canada? If not, you can get a pretty good take on the basics by reading this.
Lots of pundits have weighed in on the fracas, most of whom have very little to say which is interesting or insightful. But I keep reading them because they can sometimes be unwittingly and unintentionally hilarious.
Case in point is this overly long analysis of some of the legal issues involved by a (GASP!) real live lawyer. I found the bulk of it to be just like the same-old same-old that has passed before, until I got almost to the end and found….
“Sometimes, I think a statement or a publication can go too far, and in that case, the right to be free of vilification will outweigh the right to freedom of speech.”
I have little doubt that the majority of you who hail from the United States and who just read the line above greeted it with a snort of derision, or at least a roll of the eyes to go with that moue of disgust that rose unbidden to twist your expression. I also have no doubt that most of you who were nurtured in foreign climes are wondering what we could possibly see as wrong.
Americans live in a country that contains every culture, tribe, nationality, race, creed, and philosophy that exists. The only way for anyone to have a “…right to be free of vilification…” is if the culture is completely homogeneous. If there is an absolute code of behavior, values, and mores that everyone is obliged to follow, then it might be possible. But in a place where two or more cultures rub up against each other?
That is why we are snorting and making moues at our keyboards.
Follow the link above to the source of the quote and you will see that the author is a native of Australia who is currently studying in England. You would think that she would have realized by now, considering how the decisions that shaped her life has caused her to hop continents and experience other climes and cultures, that the statement that a “…right to be free of vilification will outweigh the right to freedom of speech…” is risible. But I also noticed that she started her blogging career writing for a Libertarian blog, and it doesn’t seem to have occurred to her that the very idea of someone being banned from saying insulting things about others is hardly in line with Libertarian philosophy.
I mean, where exactly does the concept of “liberty” come into play in such a case, anyway?
The point to all this (and there is a point for all of you who came down this far in the post), is that this is yet another illustration as to why Americans are more sophisticated than the rest of the world is willing to admit. The government in Canada is so worried about the self esteem of a select few that they have decided to force people to shut up, even though the speech in question is harmless and factual. A law student who has spanned a fair amount of the Earth’s surface seems to think that this is a good idea, only grudgingly ceding that maybe they are going just a touch too far in the Great White North.
But down here in The Land of the Free we realize that the path to advancement is to complain, grumble, and gripe about everything! We know, better than any other people in history, that the only way to see anything clearly is to hold it up to fierce and unrelenting scrutiny. Both truth and falsehood will become apparent in short order, and we trust people to make the right decision as long as the heavy hand of government doesn’t filter the debate.
How can you be more sophisticated than that?
(Hat tip to Mark Steyn.)
UPDATE
It has been pointed out that I made a mistake. The blog I linked to above is a team effort, and the person who wrote the post I commented on is not the Libertarian at the site. Their take on the subject is here.
Click on that last link and scroll down to the bottom to see that they linked to my own post. That was very kind of them, but it seems they were a might peeved over the identity confusion.
“A bunch of very smart economists who should know better have managed to confuse Legal Eagle with me. Mark Steyn didn’t make the same mistake, linking to both posts and noting the difference. Which if nothing else suggests he’s a very careful writer.”
Except that I’m hardly an economist. In fact, few of the writers here are. My own background, for example, is in law enforcement and the civilian use of armed self defense. Whether or not I’m smart enough to have known better I’ll leave to my readers to decide.
I suppose this illustrates the fact that it is easy to make a mistake concerning the identity of someone on a group blog, particularly when that blog doesn’t place signatures on the posts. (Just glance at the line under the title of this post to see what I mean.) Unless you have actually been reading the site for awhile, it would be easy to become confused as to who authored what.
Just a nitpick. You’ve confused skepticlawyer (the libertarian now studying at Oxford) with her co-blogger Legal Eagle.
You’ll find that skepticlawyer’s reaction is more … well … libertarian.
See also a great piece by yet another Australian lawyer and blogging identity Ken Parish.
By way of disclaimer, I am the administrator at both of these sites.
The reason the US has its unique attitude about free speech is not because of its diversity. It is because the first amendment to the Constitution says Congress shall make NO law abridging the freedom of speech, or of the press. This amendment was adopted when the country was relatively homogeneous and those adopting the Constitution and Bill of Rights were very homogeneous. They were not planning to create the pluralistic society we live in today. But they were reflecting their knowledge of history, particularly 17th century England.
What this illustrates to me is that the US remains the most revolutionary nation in the world in its elevation of the individual as the source of sovereignty. The great risk to America is that the adoption of identity group politics threatens this unique creation.
What Jacques said. Legal Eagle isn’t a libertarian. I am. We blog together because we’re more interested in bouncing ideas off each other than in political purity. Follow Jacques’s first link for my take.
What JC and SL said above – I’m not a libertarian, and I wouldn’t advocate a blanket free speech with no holds barred approach, for example, if someone was inciting violence towards a particular group.
From what I understand of US free speech law, it is not unfettered anyway (ie, those words which “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words ”” those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are able to be prosecuted by law: see Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). There always has to be a limit somewhere, in my opinion.
Nationality or “being nurtured in the foreign country” has no connection to a person’s ideological leaning.
Al Gore and Hillary Clinton grew up socialist authoritarians – and they are American-born and raised. Unlike Ayn Rand.
I think the statement
“Sometimes, I think a statement or a publication can go too far, and in that case, the right to be free of vilification will outweigh the right to freedom of speech.”
is dangerous. Why can’t I vilify someone if I want to? If I have the truth on my side and I am not calling for them to be physically hurt, then who is anyone to say I can’t speak my mind?
Many people in this society warrant being vilified.
And who decides what vilification is? Some super-sensitive politically correct Leftist? Yeah I can see that being fair.. they are the worst at vilification, the way they think that anyone who disagrees with them is Satan himself.
No law means NO LAW.
Hugo Black
Whoo boy! I really would rather have one of our distinguished lawyers respond to what Legal Eagle says above, but there has been a lot of case law and legislation since 1942. For example, the exception for obscenity is so restricted now as to allow nearly anything short of kiddie porn. Using “fighting words” is pretty standard in gangsta rap, and clobbering someone who uses one of them on you is not likely to get you sympathetic treatment before a judge.
Our attitude toward free speech is also seen in the differences between American and other common law countries’ remedies available to complainants. It is exceeding difficult to prevent something from being published, even if the information involves state secrets (doctrine of “prior restraint”). Truth is an absolute defense against libel actions brought by public figures, as is fair comment (e.g., you can call someone an idiot without having to enter his IQ score into evidence, but you had better have a copy of the arrest warrant if you call him a child molester). Public figures must also show malice, usually by demonstrating knowledge of falsehood, for an action to succeed, and the defendant is entitled to question the plaintiff regarding the truth of the matter. This is why the UK and Australia are much more attractive destinations for libel tourism than the US.
Suppression of speech based on issues of public order and safety is not generally permitted unless the speech amounts to a direct threat or incitement to commit lawless actions (Brandenberg v. Ohio, USSC, 1969). This is a much higher standard than most countries have, and is the reason most hate speech codes do not survive their first contact with a court. You can say that a certain politician deserves to be hanged, or that some disfavored group is less than human, but unless you try to form your listeners into a lynch mob, your only punishment is likely to be the contempt of your fellow citizens, which is available to them on the same terms of robust and vigorous expression.
Legal Eagle,
From what I understand of US free speech law, it is not unfettered anyway…
In American law, the state is only allowed to restrict speech when there is an immediate, physically localized, threat of violence. This is Holme’s famous “shouting fire in a crowded theater” exception.
For example, saying “let’s go beat those guys up across the street right now” is a statement that could lead to immediate localized violence so the authorities could restrict it. On the other hand the authorities could not act against someone who said “people of group x are vermin and should be eradicated at some as yet undetermined date” because the statement doesn’t immediately lead to violent action.
Hate speech laws target the second kind of statement. They a premised on the idea that the state has both the wisdom and the restraint necessary to distinguish what speech is hateful from the merely critical. Unfortunately, this is hopeless fantasy like the communist idea that the state could centrally control the economy. Political systems simply do not the ability to process that kind of information.
Indeed, no individual or group of humans possess that kind of information. Instead, we would merely decide based on the prejudices and assumptions of our own subcultures. Current “hate speech” laws are enforced almost exclusively against those on the political right. One can say anything negative about people held in contempt by leftist without fear of authority. As such all instances of “hate speech” laws are really just tools of genteel political oppression.
“ust a nitpick. You’ve confused skepticlawyer (the libertarian now studying at Oxford) with her co-blogger Legal Eagle.”
Terribly sorry, everyone. My mistake!
“From what I understand of US free speech law, it is not unfettered anyway…”
We have laws against slander, and it is against the law to incite violence. The burden of proof falls heavily on those who bring such charges because free speech is so important in the United States.
If anyone tried legal recourse against someone who hurt their feelings, they violate this “…right to be free of vilification…” that I mention so many times above, then they would be laughed right out of the courtroom.
And rightly so.
James
Thanks for the fixer-upper. I was actually more peeved this morning than I am now, as I’m revising for Oxford Finals (google ‘sub-fusc’ and all will be revealed) and I had a mountain of work to do today. Most of which I’ve done, which is why I’m more mellow now :)
It’s common in Australia for people of different political persuasions to blog together. Club Troppo is the same, and there’s about 10 of them (there’s only two of us, but we’re still quite different). It seems much rarer in the US.
“It’s common in Australia for people of different political persuasions to blog together.”
Fair enough.
James
I suppose this illustrates the fact that it is easy to make a mistake concerning the identity of someone on a group blog, particularly when that blog doesn’t place signatures on the posts. (Just glance at the line under the title of this post to see what I mean.)
They put their signatures at the bottom of posts.
To avoid confusion in future I’ve added the post author names at the top, plus their gravatars just to round it out.
“Freedom of Speech” is something of a misnomer. I think the US legal concept is closer to “free expression/exchange of ideas”.
The difference is subtle, but important. Everyone, from neo-nazis to religious fundies to right- or left-wing nutjobs, can express their ideas about other groups — including “those people deserve to die.” But a direct threat of violence (“let’s go kill them right now”) moves from “expression of ideas” to “directly promoting a violation of someone’s rights”. Shouting “FIRE” in a crowded theater is not an expression of ideas, but rather, an attempt to create a dangerous situation. Intentionally making baseless accusations against a person (libel) is not an expression of ideas, but an attempt to harm another person.
None of these are protected under “free speech” — but there is a high burden of proof to show that a particular statement falls into one of these categories. As Legal Eagle said, there has to be a limit somewhere, and in the case of US law, the limit is where you change from “free exchange/expression of ideas” to “attempt to instigate violence, create a dangerous situation, or intentionally harm someone”. And you have to be clearly over the line before you can be convicted.
Some of the people here are missing the point that both Mark Steyn and Ezra Levant are insistent on making — that the “human rights” tribunals not only violate American constitutional concepts of free speech, they violate historical Canadian concepts as well. Ezra and Mark have quoted reams of Canadian court decisions in which the standard of what limitations on speech are permissible is very similar to the American standards quoted above. The Canadian constitution has a right to free speech; it is just being ignored by their court system.
What these episodes do demonstrate is the merit of the American wording, given in terms of “negative rights” — things the government cannot do to you.
Why is it that those so worried about the supposed “right” of Muslims not be offended or vilified by others never worry about Muslim vilification of Jews, Israel, the United States, and the West generally? This surely suggests that, whatever’s going on, it is not a genuine concern about curtailing all “hate” speech.