Thursday, October 23, 2008

There is no perfect system: Ed Morgan on hate and free speech

Blazing Cat Fur brings our attention today to an article by Toronto law professor, and former Canadian Jewish Congress top official, Ed Morgan. Professor Morgan explains his about face on the question of Canada's "human rights" hate speech laws, from a supporter to an opponent.

What is noteworthy in Ed's narrative is not that he came through some application of careful legal reasoning to turn on the laws that the CJC has taken a lead in supporting. Rather, his revelation, perhaps like all real revelations, came through an experience of why such laws are not compatible with the pragmatic truths of human interaction in one's time and place.

In other words, there are actually very few opponents of the "hate speech" laws that hold some absolutist position on "free speech", a position defended by some philosophical argument they take to be unimpeachable. The cause of freedom of expression is ultimately a pragmatic one (and I hear no serious arguments against things such as libel laws or the criminalization of incitement to violence, or threats.) I think most defenders of free speech realize that any concerted campaign of vilification against any individual or established group of fellow citizens that was not simply a reasonable or sincere argument against an ideology, religion, or failure to share in the cultural basics by which a free society renews itself, but a campaign against their very existence, would be intolerable.

But the question, best addressed by pragmatic experience and intuition, is how should we respond to intolerable hate speech. The common gut reaction that "there ought to be a law..." appeals to our sense of primitive justice. And I do not mean to be condescending to this "primitive" sense, for I think it is in touch with something true and fundamental to our humanity, as is any honour/shame code, notwithstanding the historical limits (the restraint on freedom and social-cultural growth) of all such codes when taken very much to heart.

Such limits are illuminated by the example in Morgan's article:
This past spring, I was asked to defend the leadership of Hasbara Fellowships at a York University discipline hearing. Hasbara is an activist Jewish student organization that decided, in the face of relentless anti-Israel events at York, to fight bad speech not with censorship, but with more and better speech. Instead of asking for a ban on anti-Israel activities, they counter with strong pro-Israel events – often with a dose of in-your-face chutzpah. Fighting bad speech with good speech has turned out to be the right way to go, and I’m happy to say that we’ve had some legal success with the strategy.

The complaints filed against Hasbara allege that the very image of the blue-and-white Israeli flag appearing on the group’s pamphlets is hateful and must be banned. The complaints filed against Maclean’s allege that the very discussion of radical Islam contained in that publication is hateful and must be banned. That anyone can take either complaint seriously shows how dangerous the suppression of speech in the name of anti-hate can be. It turns out, if we read our history correctly, that the Holocaust began not only with words, but with book burning. Once we go down the road of censorship for the sake of promoting tolerance, we may soon be standing at the heights of intolerance.
How can university officials (not least at a university that once identified itself as a Jew-friendly institution) even entertain the argument that the Israeli flag is a symbol of hate? I know real thinking has been in short supply in our universities for some time now, but seriously...

This kind of thing happens because once we institutionalize the concept of hate speech laws, in an otherwise free society of many identity groups, it becomes extremely difficult, and I think probably impossible, to hold the line to insure those laws are used only in extreme circumstances (circumstances that would not likely ever emerge in a society keen to protect its shared freedoms) and not corrupted by a human pride and arrogance that would understand "justice" as the insuring that every group has an equal go at humiliating or scapegoating its enemies.

After all, human conflict is an inescapable fact of life, and in certain respects all the more so the freer and more complex our society. The temptation to have a go at restraining the other, towards whom we feel conflict or resentment, with such laws becomes almost impossible to refuse because we know that the very same temptation is being entertained by our others. Tit for tat, honour and shame, get them before they get us... all the true, but primitive, human intuitions about justice and reciprocity come into play.

Since conflict is a fact of life, and since resentment only increases in scope and scale the more free and socially or culturally complex one's society, the pragmatic question of seeking relatively non-violent ways of deferring this conflict become paramount. And if the pragmatic choice, some kind of muddling through, or some new kind of conversation that defers tensions without trying to find any permanent "solution", can increase the overall freedom in our society, we need to favor it even if it seems contrary to our more basic intuitions about justice. We cannot necessarily appeal to our core desire for more formal justice and lust after more laws to restrain people, especially where the application of such laws is inevitably politicized.

From this realization comes the pragmatic argument that Ed Morgan offers today, the realization that the best way to fight bad speech is with good speech. If we want a free society, it is our responsibility to stand with those who are unjustly hated, and not make it into a matter for constant intervention from centralized authority, be it the university administration of the national state.

1 comment:

Jonathon said...

Good post. I went through the same difficult transition from supporting our hate speech legislation to recognizing that on balance it is of more use to haters who want to game the system.

You may be interested in a video I produced on a recent impromptu confrontration between anti-Israeli activists and some bystanders who opposed their views on a Vancouver street. Cheers.