September 2012
At just about any social gathering, a
dimwit is sure to explain that free speech isn’t absolute. There are limits.
Chances are he’ll tell you about a person yelling “fire!” in a crowded movie
theatre, then look at you as smug as a parrot, expecting a treat for having
figured things out.
I usually resist asking “Polly wants a
cracker?” but it’s an effort. His “Fire!” example isn’t merely shopworn but
silly. It doesn’t demonstrate that people’s right to free speech isn’t absolute,
only that free speech neither precludes nor excuses barmy behaviour. Free speech
doesn’t legitimize criminal conduct and it probably doesn’t cure leprosy,
either. So?
In practice, few defendants use
society’s guarantee of free speech against a charge of public mischief, and even
fewer try to answer charges of fraud, defamation, conspiracy, impersonation,
espionage, or any of the scores of crimes or civil wrongs that may be committed
through the medium of speech. Recently a blogger — a professor, no less — called
me “very confused” for thinking free speech is “absolute” yet listing “familiar
ways in which it can be restricted: defamation, fraud, etc.” Of course, a
fraud-conviction only shows that using words to commit a crime doesn’t excuse
it, not that free speech has limits, but maybe the professor thinks that if his
right to drive to Chicago were absolute enough, it should entitle him to hit
pedestrians on the way.
Most people don’t. Mobility rights
aren’t raised as a defense against a charge of trespassing or home invasion, not
because mobility rights aren’t “absolute” but because they confer an entitlement
to mobility, not criminality. If an American shows his gun to the clerk in a
milk store and says: “Give me the cash,” invoking his First and Second Amendment
rights at his trial for robbery will amuse the court and avail him little. The
reason isn’t that the right to free speech (First Amendment) or the right to
bear arms (Second Amendment) isn’t “absolute” enough, but that the Bill of
Rights entitles Americans to speak freely and to bear arms, not to rob milk
stores.
Talk about freedoms not being
absolutes usually masks an agenda of statist opposition to free speech. By
mixing up speech as an instrument of conduct (sometimes unlawful) with speech as
a conveyor of ideas (sometimes heretical) statists can piggyback arbitrary
restrictions on consensual practices. The state that can outlaw bad cheques can
outlaw bad poetry. I don’t just mean that the state has the power; that goes
without saying. The state has the power to do anything, except to continue
viewing itself as a liberal democracy if it indulges in authoritarian practices.
After it has grabbed society by the short hairs (as they used to say in the
1960s) the state must make sure our hearts and minds follow. That’s a breeze for
a tyranny, but a tough call for a liberal state.
Compelling liberalism, hard as it may
be, is the smaller problem. The bigger problem is that it’s illiberal to do so.
In 1977, the year human rights commissions and “hate literature” legislation
started in Canada, such laws seemed progressive. Those of us who had trouble
believing that liberalism would be achieved by wiping liberalism out were in a
minority.
“We can never be sure that the opinion
we are endeavouring to stifle is a false opinion; and even if we were sure,
stifling it would be an evil still,” wrote John Stuart Mill 150 years ago. To my
contemporaries this sounded like gibberish. Come again, sir? Stifling a false
opinion, evil? Is the man crazy? Boy, he wouldn’t last long on the staff of
Human Rights Commissioner Jennifer Lynch.
The Western mainstream, having hit
rock bottom around the time George Orwell predicted in his prophetic novel 1984,
started its long, cautious climb back towards Stuart Mill’s heights. A January
1999 editorial in the National Post viewed Canada’s hate-speech legislation as
“potentially sinister” whose proposed new provisions “could be put to
authoritarian and illiberal purposes.” That was quite a difference from
mainstream press reactions 22 years earlier when the first HRCs hit the ground
running in an atmosphere of self-congratulations, proclaiming as achievements
some of the very features that were among their worst flaws, such as convicting
“offenders” with near-criminal consequences on civil standards of proof.
The rebound occurs just when theocrats
and terrorists, those the poet W.B. Yeats called “the worst” are “filled with
passionate intensity,” are on the prowl. A pity — but that’s the hand we’re
dealt. “What is ‘hate speech’? It’s speech the authorities hate,” I wrote a few
years ago. “No doubt, it is often worth hating. It may be speech that every
right-thinking person ought to hate, but it is also, by definition, speech that
falls short of [being] unlawful.”
Hate-speech legislation can only ban
free speech. Prohibited speech is already banned. Crime is hemmed in by
strictures against slander, official secrets, perjury, fraud, incitement to riot
and so on. When laws go beyond suppressing crimes, they suppress opinion and
creed. There’s nothing else for them to suppress. And a society that suppresses
opinion and creed isn’t liberal. I wonder which part of that sentence requires a
tutorial for some professor.
National Post, August 22, 2012.
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