Hi all, this post is long overdue. Things in my neck of the woods have been hectic (to say the least) for the last few weeks, and I've missed sitting down to get my thoughts out there on the wire. It feels good to get back to it, and I hope that this time between posts has renewed your enthusiasm as readers as much as it's renewed mine as a writer. Let's get to it.
Almost two weeks ago now, some of my Guelph cohort and I ran the second Philopolis Guelph philosophy festival, at which over 20 activities were offered. One of the presentations that I attended, about politics, had a strange atmosphere about it, and it soon became clear that the presenter had quite a strange political view indeed. In order to avoid out-Heroding Herod, I shan't get into the details of what was said, but the outcome was that someone was so offended that she walked out of the presentation. The presenter was disappointed, but also extremely surprised. He shouldn't have been. His hypothesis was indeed very offensive, even to me. However, I felt it a better move to stay and talk to him than to abandon the situation.
After arguing quite conclusively that his hypothesis was drastically thin on substance (I really rolled up my sleeves on that one and didn't let him off the hook), I started to talk to him about understanding one another as a joint responsibility. He was shocked and disappointed that the lady had walked out of his presentation before he had had a chance to make his point more fully, or defend it appropriately (which ultimately he was unable to do anyway). I stressed that while she definitely does have a responsibility to stay and listen, to allow him to make his point, he also has a responsibility not to be so abrasive and offensive that she feels that walking away is the only course of action left open to her. The listener has a responsibility to try to understand the speaker's point, and to understand it in the most charitable manner possible before taking issue with specific issues; but the speaker has a responsibility to respect the listener and not make the process of understanding unduly difficult, specifically in this instance a responsibility to present ideas in a non-offensive way (though in this case that likely wasn't possible).
It was an interesting discussion, and arguing that understanding through dialogue is a joint responsibility allowed me to keep him from relinquishing any responsibility for his actions. I hope that he took seriously what we talked about. (And as a good philosopher, I suggested some things that he might find helpful to read in this context: it was Charles Taylor, for those keeping score at home.)
This whole discussion came back several hours later when I gave my own talk. My talk was about Cassirer's phenomenology of myth and how we can use it to understand the Islamic injunction against iconographic depictions of the sacred. (As regular readers of this blog know, I've already written a piece about that, and I'd like to once again express my gratitude to those whose insightful comments helped to considerably enrich my Philopolis talk.) One of the important lines of discussion that followed after my talk was about freedom of speech: should blasphemy be allowed, and more specifically, should we accept blasphemy when it comes from outside the culture, when the one contradicting sacred rules is not a believer in those rules? A good friend of mine suggested that freedom of speech is an important mark and pillar of a healthy democracy, which sounded right to me. However, I pointed out, Canada seems a healthy enough democracy to me (at least, pre-Harperland), and we have laws that restrict free speech, specifically outlawing hate speech.
Rational and critical dialogue among citizens is indeed an important part of democracy, and freedom of speech guarantees that we all have access to that dialogue (though, of course, some have far greater access than others, but let's put that massively important issue aside for now). However, as I mentioned in the first part of this post, we have a responsibility as parties to a dialogue to protect the integrity of that dialogue, to neither abandon it prematurely nor offend our interlocutor(s) so much as to force them to abandon it. In this sense, I see anti-hate speech laws not as impediments to free speech, but rather as complements to it, because they serve to legally underpin the need to refrain from premature offense. If free speech is instrumental to the intrinsic good of rational and critical dialogue, then anti-hate speech laws are instrumental to that same good.
So what do we say about the Danish cartoons, and movies like The Innocence of Muslims, that clearly controvert the religious laws of Islam? Should we allow this kind of criticism of Islamic culture? That will have to wait for next time.
I'm quite fond of the American jurisprudential distinction between the "content" and "time, place, and manner" of speech. Now obviously Sontag and many Continental figures have made this distinction problematic, but it has its virtues. Free speech clearly can't forego regulation of time, place, and manner without meaning anarchy. But if "hate speech" can mean regulation of content, then on what basis is hatefulness decided other than on the controverted content? Muslims, after all, have traditionally regarded the doctrine of the incarnation as blasphemous. And while the Catholic Church takes its teachings on homosexuality to precisely be the most loving thing, many gay persons take them to be hateful. So if the state is not to take a position on comprehensive doctrines, hate can't be determined on the basis of content.
ReplyDeleteHey Ryan, thanks for the comment. I also think that it's useful to keep content, time, place and manner in mind, though I must admit that I'm rather leaning towards the continental idea that these things can't be distinguished. I also wonder why you like the distinction if you then go on to say that speech should not be limited by content alone. Presumably it should also not be limited by time, place, and/or manner alone (those three either as separate pieces or taken jointly). So if neither of the distinguished parts is sufficient alone, then why distinguish them? It seems like the point you want to make, the problematic nature of banning hate speech simply on the basis of content, might actually be better served by _not_ distinguishing content from time, manner and place. Thoughts?
ReplyDeleteAlso, I'd be very interested to know how Canada's laws treat this distinction. I'll try to bring in an expert witness to give testimony.
I think the reason I'm stuck with a t/p/m vs content distinction, despite all of the obvious ways in which it's lousy, is because both alternatives seem worse to me. If you can't ban any speech at all, then conspiracy, incitement, and the proverbial "fire in a crowded theater" would all be in bounds. And if you can ban speech based on content, then you can more or less outlaw all of the traditional religions, which seems hugely problematic.
DeleteI don't think that the inability to distinguish impedes banning anything at all. It's a claim that there is no sense is asking about content devoid of t/p/m, that in fact these things actually partially constitute the content of what's said. That's why it allows us to ban some things, like yelling "fire" in a crowded theatre, without banning "the same content" in another setting: it's simply not the same content.
DeleteResponse from the expert witness (my mother, who taught Canadian law for over three decades):
ReplyDeleteI will not venture to define hate speech in the abstract. For purposes of governmental control of hate speech, I think the emphasis upon the situation (time and place) and the intent of the speaker (manner) is necessary.
Canadian law requires
1. that the statement be communicated in a public place
2. that the statement promote hatred against an identifiable group
(colour, race, religion, ethnicity, sexual orientation…)
AND
3. that such promotion of hatred be wilful.
Content, time, place, and manner must all be considered.
The presentation to which you allude in your blog was obviously public. If the speaker could be adjudged as having wilfully promoted hatred, the only defences open to him in law would be
(a) if he can establish that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
In the U.S., hate speech is carefully protected under the banner of free speech (except for "defamation" and "incitement to riot".) Justice Douglas wrote that speech is "protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest ... There is no room under our Constitution for a more restrictive view."
There was the famous Village of Skokie case. Young Nazis wanted a permit to march through the village waving banners and yelling slogans, where something like one out of every 5 families was a Holocaust survivor family. The U.S. Supreme Court overturned every attempt to block the march.
Last year, Westboro Baptist Church was defended by the US Supreme Court after they had vociferously picketed military funerals (young U.S. soldiers killed in Iraq). Chief Justice Roberts wrote: "Simply put, the church members had the right to be where they were."
Canadian law, therefore, is "quite Canadian" in believing that hate speech is unacceptable if it causes strong dislike of other people; Americans wait until public unrest has reached the level of "clear and present danger of serious and substantive evil". (Their choice of the word "evil" is wonderful: it's so open to interpretation!)
So in practice, how does the difference fall, or is it just in the burden of proof (defenses, vs prima facie criteria)? I mean in the case of Westboro, defenses (b) and (c) seem clearly available, and the adjudication of (a) would be the judicial three-ring-circus of all time.
DeleteAlso, and perhaps more centrally, how is "hate" itself defined?
(a)–(d) are from Canadian law, I believe. Those cases are from the USA. Hence, trivially, those defenses are not open to them; but they also didn't need them.
DeleteHow hate is defined is an interesting matter, and again hopefully our expert witness can testify!
So far as classifying this person's comments as hate speech goes, that seems far above and beyond to me, though he certainly incurred the "strong dislike of other people," to borrow the phrase from the last comment. However, intellectual discussions need to be free to explore these possibilities, and I feel that it unfolded mostly as it ought to have: a very offensive and patently false position was presented, (someone got offended and left, neither of which should have happened,) the position itself was critically analyzed, and it was ultimately rejected. False as they may be, I actually believe that this person thinks them to be true. So, under (c) above: we were discussing a matter of public interest and in the name of the public good, and this man is actually so far out of his tree that he believes some pretty unreasonable and offensive things.
ReplyDeleteTo briefly address an issue that came up before: time, manner, place and content are all definitively included in the criteria, not content alone as Ryan had feared. (Once again, an American not understanding Canadian law and fearing the worst? We actually don't have "death panels" that decide whether to administer medical treatment to the elderly of let them die. All that stuff about milk coming in bags is completely legit, though.) However, it isn't clear whether content and "form" are treated separately.
An interesting question that arose as I was writing this concerns the role of intellectual discussion. It seems to me that such discussions must be allowed to wander into some potentially offensive territory, which falls under (c) and (d) above. For example, think about how limiting it would be if we were allowed only to say *that* a particular genocide was wrong, but because the exploration of details concerning it would be uncomfortable, we could never offer any substantive arguments for *why* it was wrong. That would seriously undermine much intellectual work of serious merit and importance.
Universities are a kind of place where one expects this. We will examine ideas, and try on many positions hypothetically, even if ultimately to reject them. Universities therefore probably have more latitude, because this is the nature of much of the work that goes on there, and people therefore expect it and approach the ideas in a different spirit. But what about intellectual work that takes place outside of an academic context? I'm thinking specifically of Philopolis here: the event plays an intermediate role, straddling (sometimes awkwardly) the divide between academia and society-at-large. Where does it sit in terms of the trying out of potentially dangerous and contentious positions? And, perhaps more important, where *ought* it to sit, and why?
Brooke, not having any idea what the speaker at Philopolis was discussing, and given the setting in which the comments took place, I suspect that in no way would this speaker have been accused of hate speech in either Canadian or American jurisdiction.
ReplyDeleteWhere Americans and Canadians differ is in our tolerance for virulent racist, sexist or religious slurs. Americans believe that this type of speech should be allowed; Canadians do not. Americans believe that if the speech of a rabid Nazi is suppressed, then the speech of a Democrat or Republican can also be suppressed, and that cannot be allowed to happen. Canadians believe that a reasonable distinction can be made between the two forms of political speech.
So Westboro Baptist Church is allowed to picket the funerals of young American soldiers who have died fighting in Iraq with signs reading "Thank God for dead soldiers". Accusations trumpeted at the Snyder funeral included that Snyder's father and mother had "raised [Matthew] for the devil" and taught him "to defy his Creator, to divorce, and to commit adultery". Westboro Church also denounced them for raising their son Catholic. The federal appeals court ruled in favour of Westboro Baptist, stating that their picket near the funeral of LCpl Matthew A. Snyder is protected speech and did not violate the privacy of the service member's family, and ordered Albert Snyder to pay the court costs for the Westboro Baptist Church, an amount totaling $16,510.
In Canada, in Ross v. New Brunswick School District No. 15825 [1996], 1 S.C.R. 42, Malcolm Ross was removed from his position as a junior high school mathematics teacher in 1991 for publishing anti-Holocaust literature outside school hours in the local press. Responding to a parent’s complaint, the Board of Inquiry of the New Brunswick Human Rights Commission had found that Ross had violated
s. 5(1) of the Human Rights Act and further found that the School Board was in breach of s. 5(1), concluding that it discriminated by failing to discipline Ross meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings,
and compromised its ability to provide discrimination-free educational services.
The New Brunswick Court of Appeal ruled that the firing violated Ross’s right to free expression and religion under s. 2b of the Charter, but the Supreme Court of Canada decided that the firing was fair on the basis that Ross was creating a “poisonous educational environment”, and added that the respondent was
known as a teacher whether within or outside the classroom, and that in this age of pervasive mass communication, we cannot underestimate the effect on young people of statements and writings made outside the classroom.
The judge concluded: “A teacher teaches. He is a role model. He also teaches by example. Children learn by example. Malcolm Ross teaches by example. He is a role model who publishes and promotes prejudice. This is wrong… The Board of Inquiry acted within its mandate and determined, in the balancing of conflicting
interests, to protect and improve the conditions and interests of the disadvantaged and disempowered.”
Ryan, in answer to your questions:
ReplyDelete1. The preceding cases show how Canada and the United States differ.
2. The burden of proof in criminal law is identical in the U.S. and Canada.
3. The defences in Canada are relatively limited; the U.S. does not have to list defences because the law itself is so forgiving that sometimes it appears that one would have to rape and pillage before anyone worried about hate speech.
4. In the case of Westboro
a. there would be no discussion re. the "truth" of the statements. The statements are OPINIONS.
b. Westboro was not acting "in good faith" at all. "Good faith" implies responsibility, fairness, providing each party with equal standing and opportunity. Attacking someone at a time of great grief—-which a Christian would recognize as a time of weakness and inappropriate as a time to respond in kind—-is not showing good faith (How is it that you do not know what good faith is?)
c. Westboro's disruption of a funeral would not fall under a "discussion" for the public benefit, and there are no "reasonable grounds to believe" that the allegations are true.
Ryan, you seem to be shooting out questions just to be provocative. I am trying not to take offence at your lack of careful consideration of the intent of the law in pursuing this discussion.
If I might interject in Ryan's defense, he is a man who's open and blunt with his questions, which can sometimes be slightly abrasive, but always promotes the general interest in the truth and the clarification thereof. As for good faith: his questions are usually in it! It would be an error to take his genuine interest in the concrete outcomes of these theories as some attempt to provoke.
DeleteFair enough. Apologies, Ryan.
DeleteAs for the talk at Philopolis, no matter how distasteful the speaker's opinions, the purpose of such occasions is to allow people to test their thoughts publicly. The speaker was expressing his opinion in a forum designed to allow him to be provocative and to allow the listeners to respond. (I am assuming that he was not exhorting others to grab pickaxes and chop up members of Group x.) Ideas have to be expressed and examined in an appropriate venue in order for our society to remain safe and sane. Everyone was on an equal footing, presumably—and, I hope, facts were being examined…not merely overheated opinions.
I'm also not worried about what happened, so far as the law in concerned, anyway. However, I do worry that people from outside of academia are not used to this kind of discussion, so it can be rather a lot for them to have someone spout off ideas, and in this case it really was nothing more than overheated opinion. Thin on facts, long on interpretation, longer on revoltingly bad reasoning, and longest on offensiveness.
DeleteAs for equal footing, that's a delicate matter in these issues. We're trying to create a space where everyone is on an equal footing, and at least create a space with the possibility for it, but when one person is designated as the presenter, they must put a special effort into making equality reign; otherwise there is a clear power dynamic, and there certainly was in this case.
Ideally, this kind of discourse would be entirely commonplace in society; and this specific instance would not even be a blip on the radar. People would simply counter the proposal with effective reasoning and move on. But the world is far from its ideal form. This kind of discourse is not the norm, and in attempting to make it more prevalent in non-academic circles, one must be cautious not to alienate people.
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