Canada, Free Speech, and Brian Leiter:

Leiter writes, in support of Canadian restrictions on religiously motivated speech condemning homosexual acts, and on “hate speech” in general:

Now don’t misunderstand me. Canada is a civilized country, and so the fact that Canada takes seriously the post-WWII European consensus–namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity–makes perfect sense. But the U.S. is different. In the U.S. I much prefer our more-or-less “libertarian” regime governing speech, and for reasons Fred Schauer pegged two decades ago in his book on the subject: not because the “marketplace” of ideas, such as it is, will yield the truth, or because speech doesn’t “harm” people (it does, all the time), but rather because there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment.

So I admire Canada, not so much for their approach to free speech, per se, but rather for having achieved a level of civilization that permits them to regulate expression without sacrificing the central values of the post-Enlightenment world.

(1) It’s a fallacy to assume that speech restrictions are motivated primarily by moral rather than political considerations. It’s a fallacy to assume that law in general is motivated by moral rather than political considerations. Right now, gays and others have sufficient political power in Canada to achieve protection from their critics. Who and what gets silenced next depends not on Canada’s level of civilization, but on what groups manage to organize themselves into powerful lobbies with the strength to get politicians to silence their enemies.

(2) Brian’s post reveals one of the major differences between libertarians and our friends on the left: libertarians tend to believe that the government cannot be trusted with too much power, whereas leftists tend to believe that the wrong people cannot be trusted with too much power. They put their faith in politics to put the right people in power. But, even if you are sure you know who the right people are, how can you predict in advance whether the right people will be in power in the future? The genius of the Framers of the American Constitution was to establish a system of government that assumed the untrustworthiness of whomever would take power in the future, with a system of checks and balances and constitutional restraints to limit their power. Much of this system no longer exists, but the First Amendment preserves the ideal of limiting government authority in the sphere of communication.

(3) Albert Jay Nock once wrote, “whatever power you give the State to do things for you carries with it the equivalent power to do things to you.” What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us.

(4) There is nothing civilized about putting someone in jail for saying that homosexual acts are a sin. Civilized people settle their differences without violence, and locking someone in jail is a violent act. Threatening someone with jail (or even a fine) for condemning homosexual acts is a threat of violence, albeit state violence. Admittedly, state violence is a “more civilized” form of violence than is the private use of force, but it’s less civilized than a pacifistic approach to those who offend you. And in Canada, you don’t even have to condemn homosexual acts to be subjected to state violence. Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 (approximately $3,400 U.S.), print the requested material, and apologize to the group?s leaders. Brockie had always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group. He just didn’t want to participate in what he considered sinful activities. Forcing someone to act against his beliefs in this way is not “civilized,” but the modern equivalent of compulsory mass.

(5) Speaking of gays in Canada, what does being civilized have to do with the fact that as part of the Canadian government’s suppression of obscene material, Canadian customs frequently target books with homosexual content. Customs seizures have included Andrea Dworkin’s Pornography, and several serious novels. A gay organization had to spend $14,000 (approximately $9,600 U.S.) in legal fees to force customs agents to allow The Joy of Gay Sex into the country. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores. Two gay activists at the University of Toronto were fined for selling Bad Attitude, a lesbian magazine with sadomasochistic content. According to the ACLU, “more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government.”

(6) I wonder where all the enlightened, civilized Canadians were when Professor Sunera Thobani of the University of British Columbia, a native of Tanzania, faced a hate crimes investigation after she launched into a vicious diatribe against American foreign policy after 9/11? Thobani, a Marxist feminist and multiculturalist activist, had remarked that Americans are “bloodthirsty, vengeful and calling for blood.” The Canadian hate crimes law was created to protect minority groups from hate speech, but in this case, it was invoked to protect Americans. The police revealed the investigation to the media, despite a general policy against doing so, because, a hate crimes investigator explained, “here we have a complaint against someone who is obviously from a visible minority, whom the complainant feels is promoting hate. Normally, people think it’s a white supremacist or Caucasians, promoting hate against visible minorities . . . We want to get the message out that it’s wrong, all around.” The police eventually decided not to file charges for undisclosed reasons, perhaps because Thobani’s speech was sufficiently rambling that her perceived attack on Americans could alternatively be construed as an attack on the “socially constructed” American nation invoked by President George Bush. While still potentially insulting to Americans, this would not violate the hate crimes law. Had she been speaking of real Americans and not socially constructed Americans, though, she could be in the clink right now.

Despite these examples, on balance, Brian may prefer Canada’s current speech-restrictive regime to the U.S.’s libertarian regime. But is he confident he will approve of Canada’s speech restrictions in ten years? In twenty-five years? In fifty years? The beauty of liberalism, in the classical sense, is that it’s a system designed to work when your friends are in power, and when your enemies are in power, limiting their ability to do harm (and good). I can sleep soundly at night knowing that I won’t be arrested for thought or speech crimes regardless of who is in power in the foreseeable future, something I certainly couldn’t say if I were Canadian.

So, I agree with Brian that the marketplace of ideas is not necessarily efficient, and that expression of hateful ideas based on unthinking bigotry is not conducive to discovering truth. I disagree with him about the wisdom of giving a government power to suppress speech based on a judgment that the government is currently controlled by a civilized citizenry that will permit the government to use that power only for good, I disagree that Canada has proven itself to have such a citizenry, and I disagree with the underlying premise that the dynamics of speech restrictions will, over anything resembling the long-run, be based more on consensus notion of morality as
opposed to power politics.