For some reason, and despite my obvious interest in conflicts between civil liberties and antidiscrimination laws, I haven't gotten around to blogging about the recent pernicious attacks on freedom of expression in Canada, courtesy of provincial "human rights" commissions.
So here are a few thoughts on how the situation in Canada is relevant to the situation in the U.S.:
(1) The slippery slope. When I was in law school, advocatse of weakening First Amendment protections to restrict "hate speech" pointed to Canada as a shining example of how egregious expression could be banned without threatening freedom of speech more generally. At the time, the Canadian Supreme Court was holding that Holocaust denial and violent, misogynistic pornography are not protected under Canadian constiutitional law. And, really, who wants to defend Holocaust denial and violent pornography? Yet, less than twenty year later, we have Canadian citizens being prosecuted for quoting biblical injunctions against homosexual activity, or for merely reprinting the Danish Mohammed cartoons. (For the latest outrage, see here, courtesy of Instapundit). So the Canadian example hasn't quite worked out as its prior advocates had anticipated. Instead of being an example of "reasonable" restrictions on freedom of expression, it has become an example of the slippery slope problems inherent in allowing restrictions on freedom of expression based on subjective views of what is sufficiently offensive or problematic to be banned.
(2) The most egregious infringements on freedom of expression in Canada have come from "human rights" commissions whose sole function is to ferret out discrimination. Not surprisingly, the functionaries who man (oops, call out the thought police) these commissions have little regard for protecting competing values such as freedom of expression, which is not part of their job description. Similarly, in You Can't Say That!, I found that many of the worst infringements on freedom of expression in the name of antidiscrimination come from state and local "human rights" agencies. The lesson: antidiscrimination statutes and regulations should be enforced by judges who are obligated to uphold the Constitution, not by "human rights" bureaucrats who don't think the Constitution is relevant (and who, in California, are (unconstitutionally) banned by statute(!) from considering whether what they are doing is consistent with the Constitution).
(3)During the Clinton Administration, lawyers at both HUD and the Justice Department--most prominently Deval Patrick*--were at the forefront of trying to blur the distinction between expression and discriminatory actions in the context of housing discrimination law. In particular, the Clinton Administration argued that merely speaking out against plans to locating facilities for the mentally ill or recovering drug addicts in one's neighborhood violated the Fair Housing Act. Only after years of severe public criticism, and several negative court decisions (e.g.), did the Clintonians back down. Judging by the Obama's campaign's claims that the McCain camp is violating the Voting Rights Act by raising questions about voter fraud, I think we can expect a reprise in an Obama Administration.
*Patrick analogized political leaflets to baseball bats, remarking that bats "are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws."
Gonzales was merely incompetent. Patrick as AG trying to throw people in jail for voicing their opinions would be a lot worse.
He'd fit in nicely in an Obama administration. Obama supports throwing people in jail who discuss voter fraud.
We're all going to be criminals, eventually, under an Obama government. That's the point of the tyranny of Nice.
"you avoid it by not taking steps closer to the edge."
That's the problem-- you can never be sure where the edge is and it keeps moving closer to where you stand.
From the Volokh Conspiracy: A Right To Choose Whom You Live With -- and To Speak About This in Ads.
"I've always thought Brown would lead to the persecution of political cartoonists one day!"
What has Brown led to? Certainly not integrated schools.
Arguing that the slippery slope is being applied as a logical fallacy is popular when your dealing with rights, but all too often it is accurate. How many times do you hear about a legislature creating a new right of the citizen excersizable against the government? Every time a new 'right' is created, it is a right of one citizen against another.
Hell, an Albertan Catholic bishop (Bishop Henry) has even been charged by them. Remember, they do not need search warrents to obtain information either. And they steal and lie to gather information as well.
Brown was essentially a repeal of Plessy vs Ferguson and mainly focused on school integration, not Jim Crow laws. Those were dismantled somewhat piecemeal by things like the Voting Rights Act. In any case, I'm discussing anti-discrimination laws in the context of limitations on private transactions, not equal protection under the law. In my opinion, anti-discrimination laws will ultimately lead to severe restrictions on the freedom of speech because we have no bright line division between speech and conduct. And we see how the process evolves. It starts with something that looks reasonable, but ends up with the government telling you who you can't exclude as your roommate.
Sometimes the fruits of freedom taste bitter.
Why worry? You will be called a racist. So just accept it. All of us who oppose Obama are all racists now, apparently. The word has no meaning anymore. On this, the left is quickly becoming the boy who cried wolf.
Fixed that for you.
Yep, and I don't mind cutting pure freedom with a bit of equality. Smooths it out some.
I guess that's the fundamental place where we differ.
As for the lack of a bright line, that's a pretty common problem (e.g. when life begins, what is obscene, etc.) Doesn't necessarily argue to eliminate the line.
Though I'm moderate enough to think Canada is pretty extreme here, as are the views many American liberals.]
Not to mention how often they talk about whitey keeping them down! I never hear whites talking about blackey keeping himself down. Such overt racism!
Exactly. This matter provides a good example the lack of a bright line division between conduct and speech. Patrick compared leaflets to baseball bats. Disorderly conduct laws provide more examples. People have been arrested for "conduct" (actually speech) that annoys someone, and in some cases even charged with hate crimes. What we have to realize is that these abuses are ultimately organic to anti-discrimination laws. You won't stop your freedoms getting abridged without going to the root cause.
Yet it keeps happening. When it does, we (and yes, I include myself) usually call it "unintended consequences" rather than "riding down the slippery slope."
E.g. start by banning "red-lining" which denied mortgages to people who could afford a mortgage because the property they wanted to buy was in a "bad" neighborhood. Expand it to eole who might be able to pay but have "bad" or no credit rating. Imply "racist" connotations. Expand again with the "right" to housing. And when bankers keep insisting on making only loans that they think might be paid off, tell them they must make bad loans but can "bundle" them with a few good ones, and sell them to a quasi-government agency which can sort-of "guarantee" them. When they cannot, drop "quasi-" and pay off with tax money.
Oops: unintended consequences of what started as a good idea...
Are you proposing Operation Canadian Freedom?
I get it. I get jokes.
Nah, that's the "irony for us both" - the CHRCs because they're "human rights commissions" like North Korea is a "People's Democratic Republic", and me because there I am in my fantasy, marshalling an army to burninate the foes of freedom without any of those pesky "trials".
Just like my favorite phrase from my uber-PC high school: "no tolerance for intolerance" (yes, that was the principal's brainchild)
That's approximately right. The standards were jiggered to allow the underserved--those who couldn't qualify--to qualify.
Those standards were then applied generally.
According to some bankers and mortgage guys I know.
Anybody know?
Though not in retrospect, of course.]
For example, Canada's law has little merit to me- a persons right to free speech clearly trumps the infringement on liberty caused by being subjected to discriminatory speech. Sure, it might feel good to think I'm punishing bigots (which is why these laws have any support), but no government is really capable of objectively applying this... the government will decide if the speech has merit and isn't discriminatory largely on their own ideological beliefs. I pretty much completely disagree with people that Canada has discriminated against, but that doesn't mean I should (or could) impose my beliefs on them.
If the Human Rights Commissars say your speech is forbidden but then the courts overturn them, you were still censored. Even if they gave you a pass, it was still the government that decided what was acceptable and what was not.
"I think what Sarcastro's point is is the problem with the slippery slope argument is it basically starts by claiming Brown and all our first steps to eliminate legal discrimination was wrong."
I understand his argument, and I disagree with it. As I said, I'm concerned more with anti-discrimination laws as they pertain to private acts and transactions, than to making governments apply the law equally. Although we have problems with the latter too. In our modern era "equal" under the law actually means "unequal."
I don't see anything that limits the progressive erosion of liberty under the guise of "civil rights." Call something "civil rights" and it gets immunized from criticism. This acts to shut off debate.
True, in exactly the same way that the Civil Rights Act of 1964, as Hubert Humphrey assured everyone, would not lead to racial preferences.
Canadian "human rights commissions" are quasi-legal kangaroo courts, staffed by left-wing politically appointed hacks who have no judicial experience. There are no rules of evidence, no presumption of innocence, no right to face your accuser. All costs of the complainant are paid by the state, but the defendant must pay all his own costs, win or lose. No proof of injury is required from the complainant, only the contention that they were "offended". You can even be charged in as many of the 13 or so regional commissions that the complainant wants, all at the same time, and even tried by as many of the commissions that want to take up the case. Double jeopardy is irrelevant.
The defendants are ALWAYS and ONLY conservatives, business owners, and Christians, and the complainants ALWAYS gays, Muslims and other assorted leftist approved victim groups, and with the exception of the recent Mark Steyn/Macleans case, have a 100% "conviction" record.
The commission staff members have been forced under oath to admit to posting nasty, racist hate-filled comments on target websites, using an IP address they hijacked from a private individual to cover themselves, and then using their own comments as evidence that the websites were "hate speech".
Stalin would have been proud.
David Bernstein, in his post above, is referring to the case of Stephen Boisson, a Christian pastor in Canada, He was dragged before the commission for the heinous crime of writing a letter to the editor criticizing gay marriage, was fined, forced to make a public apology, and prohibited from criticizing homosexuality in any way in speech, emails, on the internet, and even from the pulpit - FOR THE REST OF HIS LIFE.
Ironically, his accuser was a well known anti-Christian activist and wasn't even gay. However, he was "offended" and that's all that mattered. The $7,000 Boisson fine went to the accuser, too, tax free.
If you think that this will never happen here, guess again. There are already "human rights commissions" in a number of states, staffed and run in similar fashion to their Canadian counterparts.
In January of this year, a Christian photographer in New Mexico was fined $7K by their "human rights commission" for refusing to take the wedding pictures for a lesbian couple, even though there were hundreds of other photogs available. They were, you see "offended".
If Obama is elected, watch for a vast increase in this type of uni-directional intimidation and coercion. As an atheist, even I have to say "God help us".
Geez, and when you throw in the Orwellian "Fairness Doctrine" and similar attempts to control conservatives on the internet, it's not going to be a fun time soon being a critic of anything to the left of Fox News.
Furthermore, you have spent a whole bunch of money and time fighting the charges-- probably >$100,000. And you won't get it back. The prosecutions by the "Human Rights Commissions" have a chilling effect, even if they are later reversed.
Not all that controversial in the general public. Conservatives were annoyed.
The data showing the minority qualified applicants being turned down was flawed. That has recently been more generally known, although it was obvious back then.
I worked with a faith-based social justice and peacekeeping group at the time. It was hard to tell if they were dumb as a bag of hammers, corrupt and mendacious, or had the happy facility of not hearing information which did not fit their preconceptions, no matter how frequently they heard it.
In any event, they were looking for discrimination, and, as usually happens, they found it.
Which is a smaller version of what was going on among the usual suspects.
Talk about reality and you were a racist. That being something more effective a manipulative scam than it is today, it served to tamp down discussion.
I was thinking of Micheal Moore's bit on TV Nation many years ago in which he proposed invading France - using the name Operation Restore Politeness.
I also am not sure I buy the causality between the housing crisis and the CRA. I've seen no statistical arguments at all.
As for racism being used to tamp down on discussion, it's a problem, but so far one confined largely to abuse of social controls, not legal ones.]
Anyway, as a Canadian I think you're taking these much too seriously. I agree they are a threat to freedom of speech, and have gone too far, but they is a long long way from Stalinesque show trials.
The courts need to step in to clarify things, but they can't until someone loses in front of a tribunal and appeals.
That's the funny thing about Americans, we take liberty very seriously. To some this may seem madness, but on it we have staked our all.
What you say sounds far too reasonable to come out of the Canadian regime.
You're a plant from the Canadian "Ministry of Internal Affairs," aren't you?
I'd also suggest, before getting all high-and-mighty about how bad Canada is, take a look at all the stuff that goes on in the U.S. (arrested for insulting an alderman in a sign was in the news this week, what about the pro bono case discussed on volokh.com about the charges for the Internet suicide case, etc. are the most recent things I've read that spring to mind).
The commissions are set up by statute and the members are appointed by government, and they have a specified mandate. Many concerns -- such as costs, or their role, or whatever -- can be addressed by legislators making changes. Unless or until they do, the commissions are doing (admittedly more extreme, in part because of who gets appointed) what they were set up to do.
In other words, blame politicians elected by the majority who set up the scope and role of the commissions, not so much the commissions themselves, which unlike the California body referred to earlier, do take into account the Canadian Constitution and Charter of Rights.
What do you mean by "the housing crisis"? The crash in prices? The foreclosures?
Early this year, one of the networks had a report from someplace in Colorado. It was an upscale neighborhood which was reputed to be the then-leader in foreclosures. A realtor mentioned to the reporter that the folks used their homes as "ATM".
Get hit with an ARM--as some friends did--or lose a job, and the home goes. When that happens, the prices of nearby homes take a hit. If you can't get an equally affluent family into the vacant home pretty quick, the prices start down. And then, having squeezed the equity out, your home is worth less than you owe.
That doesn't require CRA.
TV killed off racism, not Brown v. Board of Education.
TV brought the face of Bull Connor racism into most American homes, and made America choose between its ideals and the prejudice of many.
I have in fact heard people of several different races (including black and white) describing whites as inherently inferior and openly wishing we/they could go back to Europe, and there were no discrimination lawsuits or "disiplinary action" under hate speech codes. Have heard nothing of the kind?
I think that the rise in the number foreclosure is the cause of that price drop. And I have as of yet seen no evidence that the cause of the foreclosures is CRA related.
Speculation may be a factor. Again, no statistics as of yet, only waiving fingers of blame and anecdotes.
Maybe we'll find out in a decade or so.]
I guess I take some solace in the fact that such hatred is still far from mainstream in most regions, and isn't likely to lead to lynchings.]
how many of these cases do we have to see before you admit that there is effectively no freedom of speech in canada, in any realistic sense. the freedom to say whatever you want as long as it is not offensive to any # of identifiable "victim" groups is a joke.
this started a long time ago. let's not forget the case of prof. rushton, (unsuccessfully) prosecuted for daring to suggest racial differences in an academic setting. etc. etc.
i have a special insight into this because i have worked with RCMP on a few occasions, and attended hate crimes training with them. (I am a trainer for other officers in investigating hate crimes). the difference between our laws is astounding. i was amazed at how much latitude the state has to suppress speech. conversely, the mounties (taking this federally sponsored class in WA state) were amazed at how much freedom our citizens have to espouse hateful, racist, sexist, homophobic ideas.
i suggest people take a visit to the canadian civil liberties association (CCLA) website and compare the "rights" of canadians in free speech vs. ours.
Is that the motto at the entrance to Guantanamo Bay? Sorry, but while the American government refuses to apologize to, let alone compensate, an innocent Canadian you sent to Syria to be tortured that rings a bit hollow.
Cases like this are extremely serious blackmarks on Canada's human rights record, but the United States is in absolution no position to lecture us on freedom. Especially not on the day the Canadian government released a report on three other Canadian citizens who were tortured in Syria; naturally the American government refused to provide any information to the inquiry.
I don't get the basis for your use of the exclamation mark. On the one hand, you don't think ALJ type people on human rights commissions should be judging the constitutionality of their enabling statute (and I agree with that) but then why you do appear to be shocked that such people are prohibited from doing so in California? Assuming constitutionality can be tested on judicial review, isn't that how you want it decided?
A huge number of human rights complaints in Canada involved people fired from their jobs who claim it was unlawful because the termination was motivated, at least in part, by some low level disability (like a bad back) or the fact that the complainant was an older person, a woman who got pregnant or something along those lines. In other words, cases that don't involve anyone speaking in public about anything. So, hysterical assertions to the contrary in some of the above posts, cases like Steyn's are very rare in Canada. Not every province even has a human rights law that provides for the sort of complaints one saw in the Steyn case.
No. The constitution is, first and formost, a constraint on state actors. The judiciary gets involved when there is a case or controversy between the state actors and someone else.
You are a hypocrite, David. How can you say that you believe in freedom of speech when you make an exception for holocaust denial/revisionism?
You never answered my assertion that a systematic Jewish holocaust was impossible because the Nazis had no objective and reliable way(s) of identifying Jews and non-Jews.
If a specific defendant claims that the agency's action is barred by the Constitution, the Supremacy Clause dictates that the relevant state official consider the claim. Not to mention that most state officials take oaths to uphold the Constitution. This came up when a California agency tried to punish someone for refusing to have a black roommate, and refused to consider whether there is an intimate association right to choose one's roommate. As a practical matter, fighting it out in the agencies before going to court is extremely expensive. That's an additional reason these issues should go to courts, not agencies, to begin with. I'd prefer that they go to court immediately, but if they don't, the agenices should be required to act within constitutional bounds, and indeed be suable under 1983 if they don't.
You are a hypocrite, David. How can you say that you believe in freedom of speech when you make an exception for holocaust denial/revisionism?
There seems to be a flaw in your logic, not defending holocaust denial doesn't mean that one wants to make it illegal. Make a fool out of yourself if you want to, its OK by me.
And of course the Constitution is a living document of wondrous penumbras and emanations, which meaning can only be determined by judges of a creatively progressive ideology.
Is the the person you claim was "tortured"? It is the only Canadian related to Guantanamo I could find by googling:
Omar Khadr
I don't see anything about Lebanon, and the only evidence of "torture" comes from allegations by Khadr himself. I don't really want to get into a huge debate about Guantanamo, but I will say it's been visited by every human rights organization that exists and no evidence of "torture" has ever been documented. The "Koran down the toilet" was debunked.
This is from CNN, last I heard, hardly an apologist for the Bush Administration. If this is what you mean by "torture", then all that says to me is that the word "torture" has been so cheapened that it is about as meaningless as "racism". Let's say that the claims of Khadr are true (for argument's sake only) and he really was sleep-deprived for long periods of time. If we are going to call that "torture" then what is the word we use for slowly hacking off people's heads with machetes, which is what the lovely people he was fighting for do.
I don't believe for a second these wounds he got while being tortured. Is there any evidence they didn't come from wounds received when they attacked US troops?
Crying for mommy is not necessarily a sign that he was "tortured".
If a "President Obama" is actually bone-headed enough to, for example, attempt prosecution of citizens alleging voter fraud, he'll be effectively playing with matches while standing waist-deep in gasoline.
I'd like to think that Obama would be smarter than that, but, hey, betting on the intelligence of politicians is for suckers.
Try Maher Arar. Canadian citizen, changing planes in NYC, arrested and deported to Syria (he was born there), which tortured him. He's since received an apology and $10 million (Canadian dollars, but still over $9 million U.S.) from the Canadian Government. U.S. government has done nothing except spout some meaningless platitudes, and even when the U.S. Congress wanted him as a witness, the executive refused to let him in (or guarantee he wouldn't be arrested and sent to Syria again, or whatever). His lawsuit was dismissed (I can't remember which Federal Circuit) although last I heard, the circuit decided on its own initiative to rehear en banc, so maybe he'll get some relief.
Aside from the injustice an American (albeit living in Canada!) I have HUGE problems with the U.S. Congress wanting to have someone as a witness, and the executive branch can forbid that?
At least in Canada, the worst he faces is a human rights commission, not being arrested and deported to another country for torture...
As for a previous poster, sorry but I don't think I'm an apologist [grin]. I have HUGE problems with the Canadian restrictions on free speech. On most things I agree with the CCLA. But I also recognize, Canada has its own Constitution and so I wear a different hat when looking at Canadian restrictions. Similarly for gun control, in the U.S. I support availability of weapons as a Constitutional right, but in Canada, where there's no such right, I'm not up in arms (because I don't own any!) over restrictions on gun ownership. I think some gun restrictions are stupid, but it's a different country, different Constitution, different laws, and my objections are principled not legalistic/Constitutional.
An official inquiry by Mr. Justice O'Connor determined that there was absolutely no evidence Mr. Arar was linked to terrorism, and that he had been tortured in Syria.
Pathetic.
The context of my quotation, "really, who wants to defend Holocaust denial," expressed a desire that holocaust denial be made illegal. Here is my quotation in context:
Duh.
The thing the Canadians and Europeans with similar hate speech regimes don't understand is that keeping these things legal serves a valuable purpose: it allows people to Spot the Idiot. (Of course, Fafarman holds up a flashing neon sign, so it doesn't take much.)
Be that as it may, I fail to get your point. Did anyone here claim that the United States is in a position to lecture you on freedom?
I stand corrected on the identity of the individual you referred to in your initial post. However, this happened in 2002, one year after the worst attack on US soil since Pearl Harbor. The US was still sorting out how to deal with combatants when there is no national identity for the enemy. If the US made an error, it should accept responsibility for this and make restitution. It happens all the time when someone in prison is cleared with new evidence. However, the US still maintains that there is a connection between Arar and Al-Queda, your government's report notwithstanding.
In addition, the US did not torture him, it deported him to one of the nations of the Religion of Perpetual Outrage. Given that the US thought he was connected to the terrorists, why would they have any reason to suspect that those on his own side would imprison and torture him for a year?
Are you contending that the US knew he would be tortured in Syria, or that they sent him there specifically to be tortured? For what purpose? Of what benefit to us is having him tortured by Syria?
What is the purpose of this comment? Are you contending that the US had information of why Syria held your citizens and that we should have been able to do something to stop it? Like we have any influence on Syria - right.
It looks to me that you are condemning the US with a broad brush over one (possible) mistake in a very complex conflict where it is difficult to tell exactly who is the enemy and who is not, and when the Koran of the Religion of Perpetual Outrage expressly advocates deception and outright lying to infidels. It's called "taqiyyah".
There are going to be many errors in this kind of war, where the enemy has vowed to make 9/11 look like a Sunday school picnic, and they are willing to do anything to win, even commit suicide. Given the way that Canada and Europe are succumbing to sharia and pandering to those who would kill us, we certainly can't count on your help, can we?
Ezra Levant
It will also introduce you to the infamous Richard Warman, a former investigator for the commissions who was also the sole complainant on many of the cases filed, despite not even being a member of the "aggrieved" victim group. He received substantial settlements in all the cases even though he was also the investigator. He was one of the commission employees caught sending "hate" emails to websites under investigation and then the commissions used his emails as "proof" of the websites' hate speech.
He is a serial abuser of frivilous lawsuits, where, as an attorney, his costs are minimal, but all his accused must pay for expensive counsel. He has his own website, where he freely admits that his practice of filing all these suits in courts and in front of the commissions is for the purpose of "maximum disruption" of people he doesn't happen to like. He also says he does it for fun, and of course, it pays pretty well too.
slight spell check
Although, like most readers here, I have huge problems with the "hate messages" section of the CRHA, I have to admit the Commission is doing a great work in regards to other concerns (the majority of cases that have nothing to do with speech).
Before becoming Prime Minister, Stephen Harper stated his deep worries about the free speech issue with the CRHA. Now that he has been re-elected, we can expect some tweaking going on within the next two years or so.
But I would personally express even more worries about the Harper government's latest attempt at censoring culture: the film industry, among others, must now stand within a certain line of "morality". Bill C-10 explained here. That's pure, unnecessary censorship for you.