Wednesday, September 17, 2008


I wanted to make a few comments to introduce some links to the latest news from the Lemire trial and his constitutional challenge of Section 13 of the Canadian Human Rights Act, presently unfolding in the Canadian Human Rights Tribunal. These turned into a mini-essay, if anyone is interested... or skip to the bottom for the links reporting on Tuesday's hearing.

Political and ethical wisdom is often well summed up by the rule that our best choice is not some fanciful vision of reality, some vision of the world as it should be; rather, wisdom and courage is being able truly to face and choose between the lesser of evils. The real choices we face all implicate us in some degree of potential or actual evil.

One of the most invidious things about Canada's hate speech laws, both criminal and "human rights" code, is that instead of allowing us to choose the lesser of evils, they obscure that choice.

For example, they force people to take sides between the kind of Judeophobic people Doug Christie has a reputation for defending, and a law that is premised on unrealistic assumptions about the threats such people hold to others in today's Canada, a law that can and is now being evily used to chill serious political speech, particularly in the context of left-Islamic "lawfare" against Judeo-Christian conservatives.

This choice between Christie's crowd, and the law that punishes them, the choice proferred by supposedly sage liberals who like to emote about the need to "balance" competing rights of free speech and freedom from "hate" speech (as if there were a fundamental human right not to be resented), only creates the false aura of a wise person facing down the choice of the lesser evil and arguing (as it happens, outrageously) like the Government of Canada's own lawyer:
Mr. Fothergill answered that if Section 13 puts a chill on public discourse, it is only to be around the fringes of hate speech, and that this is not "a terribly bad outcome."

"A little bit of chilling … is tolerable" he said.
The problem is that someone like Fothergill takes it for granted that there is an objective, readily identified, extreme of hate speech. But, in fact, this "fringe" is only the political creation of "mainstream" people like himself, created in debate with other "mainstream" people like himself, people who take on the task of representing what is either respectably liberal or conservative, while banishing the rest of the nation's political speech to the margins of their own making.

Such people, of course, are believers in, and the embodiment of, rule by a technocratic, academic-media-legal elite. If you are not such a believer in mutually-accrediting, more or less liberal elites, then exactly what is marginal hate speech is not at all self-evident. Rather, it is something that must be tested and revealed otherwise, i.e. in a truly public laboratory, in the free marketplace of ideas and represented experiences.

Now while we do not have a truly free marketplace of ideas and representations in Canada, to the extent we have something approaching it, our free exchange happens to look a lot like a place where the kinds of people Doug Christie is famous for defending would be destined to be ignored or forgotten losers.

I would also like to say, as if to lawyer Fothergill (and by extension to the Harper - and previous Liberal - government that gave him his instructions) that any chilling from the likes of him (and them) is highly intolerable.

This is because his office represents the crowd of liberal legal minds who like to associate with the philosopher's fantasy that there is always some kind of "balance" to be made among competing rights, which they understand in terms of abstract metaphysical concepts, a "balance" that can lead to general rules of legal conduct, irregardless of context. Such people look for guiding principles to rule all situations; they become fixated on programmatic or dogmatic ideas, rather than recognizing that the real protection of human rights must pay primary attention to the needs of the particular participants and the historical situation in which each conflict is located. This is not to deny our need for general legal principles based on precedents, but to suggest that the more minimally these can be expressed, the better.

In other words, the more we allow legal principles to become infected by grand philosophical ambitions to balance all and sundry, the worse off we will be. It is all too easy to put two different things on the same "balanced" level because in philosophical language everything under the sun can be turned into a concept that seems to be the equivalent of another concept. However, this is often to obscure a reality where certain fundamental human imperatives cannot be balanced, or even represented: freedom is something we can talk about but not actually represent, or thus "balance", since freedom is the basis for our ability to represent but not the representation itself. You cannot show freedom; you can only perform it.

Thus we need wise and learned and truly disinterested judges, and not pre-programmed ones. But as soon as you have a hate speech law, you must politicize the judiciary, because how else than by following the political winds are judges to know where is the line between speech that is grudgingly acceptable to the "mainstream" (elite) and speech that must be condemned as hateful and punishable?

I would not make it a general rule, for all times and all places, that the lesser of evils will always be to strictly minimize the number of permissible limits on freedom of expression (e.g. laws against defamation, fraud, incitement to violence) but I think it certainly applies to a prosperous, modern, well educated, mostly peaceful country like Canada.

In Canada, the vast majority of people would never have heard of Doug Christie or his litany of clients if it had not been for our hate speech laws. That is because in the post-1960s context, these people are rather out of time and place, and they just don't have the ideas, money, influence, charisma, or anything, to get a lot of attention. And despite the fear mongering that goes on around such questions, I challenge anyone to provide a realistic futuristic scenario in which my claim would turn out false.

That's not to say that what is yet unimaginable will not come about. History is but an unfolding of revelations and experiences that are unimaginable, until they happen. If one day, Canada finds itself on the knife edge of violent racial, religious, or other conflict, maybe it will be best to have a government that places some restrictions on public speech.

But that is not Canada today and it seems much more likely that we will avoid the risk of building up great social blocks in conflict with each other if we accent individual rights and not "group rights" (e.g. the "right" not to be deeply offended based on one's group identity). In Canada today, people who resentfully provoke social divisions, without any kind of serious intellectual justification in truth or reason (as recognized by the highly competitive and demanding free market in ideas) are quickly marginalized by most all involved in the marketplace, e.g. in the endless seas of the internet, and especially by polite, connected, and influential people. The terminally resentful are left to grumble to a few other lonely losers. And that is how it should be. They become more resentful and dangerous when they have to fight the state.

In other words, there are exceptions to this kind of marginalized outcome in Canada today. An exception happens when politicized "liberal" elites, those who are generally resented because they are elites, make a go of justifying their elite positions by picking on someone to act as the definition of a "Nazi" hate monger, i.e. a scapegoat. This is the moment when the risk of the nation moving towards group conflict increases. Because there are all kinds of people who will resent and fear those elites and take sides against them and their followers, people who have reason to fear (indeed this should be everyone) that tomorrow they could be the "hate monger". In other words, we no longer live in an age when our elites can make peace by choosing some pathetic scapegoat. We have mostly learned to see through that kind of thing and so for such purposes we no longer need an elite, or the laws that create them.

The greater evil, as it exists in Canada today, lies with those sufficiently self-righteous to think that they are in a state-sanctioned position to dictate to others what should be considered and punished as hate speech. Such people put the dampers on all kinds of conversations that are necessary for our country to have if it is going to peacefully integrate large numbers of immigrants into a self-ruling democracy of free individuals. "Multiculturalism" can quickly become an excuse for rule by largely undemocratic "representatives" of various group identities. In other words, it can lead to a system of imperial, NGO, elitist rule which is likely to entail greater not lesser resentment and violence in the long run (multicultural empires never last and when they crumble it is a nightmare because the people have lost the creative skills to rule themselves and thus find relatively non-violent, decentralized, ways of transcending conflict).

Free expression is in so many respects the fundamental human right since human society is fundamentally based on the act of representation. While one can argue that the right not to be killed is more fundamental, this is just another way of arguing that the individual must be given all protection necessary to maintain his freedom of expression. Unless there is a serious case - a case not based on vague and dubious claims about Germany in the 1920s and 30s, but a cased based on today's realities - to be made that one person's freedom of expression is likely to lead to another's harm and loss of freedom, there can be no serious argument that it is good to put limits on freedom of expression.

The lesser of evils is not to be found in choosing between "rights" of free speech and "freedom from hate speech"; the lesser evil is in refusing that false choice.

Thus I come to make my choice between Doug Christie and the kinds of people he represents, and the government defenders of an invidious piece of legislation, Section 13 of the Canadian Human Rights Act; and I find that I am pretty much entirely in agreement with what Doug Christie argued Tuesday before the Canadian Human Rights Tribunal. See reports here and here and here and here.


Blazing Cat Fur said...

Michael Ignaetiff is now on record as saying he fears an open season on minorities if Canadians are granted free speech.

truepeers said...

Well he's not sure what to think; he still has to do the metaphysical gymnastics to get the right "balance" between "rights". It's taking him a while. Maybe he will wake up to the fact we don't need another patronizing elitist to find the "balance" for us...