Thoughts on Warren Kinsella and Bernie Farber's arguments in last night's Michael Coren show debate on free speech and Section 13

Unfortunately, video of last night's Michael Coren show debate is not yet up on the internet, as far as I am aware. I saw some of the debate, a friend's clip, featuring mostly Warren Kinsella talking. And so here are some general thoughts on how I would approach Warren Kinsella's and Bernie Farber's arguments in favour of retaining Section 13 of the Canadian Human Rights Act.

Basically, Kinsella and Farber's arguments are only convincing if you assume a certain context for them. Their arguments, as most people know, are rooted in the response to the Holocaust, to the assumption that the normal culture of a normal modern Western society is not only capable of, but there is a sizeable risk of, turning into the kind of society where every class and profession will make its willing contribution to building the next Auschwitz.

If we lived in that kind of society, we wouldn't be having this debate about "free speech", in the first place. But if I thought we did live in such a society, I wouldn't hold quite the same positions I hold. (Most obviously, I probably wouldn't be trying to argue with the state, but rather undermine it or run away.) So it seems to me that our debate ultimately rests on how we apprehend our shared reality today.

K & F's post-Holocaust assumption is that our differences - all those for which "discrimination" is supposedly outlawed in Canada's "human rights" codes - are non-negotiable, except by the judiciary and in the highest backrooms of the government. It is a belief in the impossibility of normal society itself dividing the things or issues at stake, a belief in a non-negotiable indivisibility that affects so many of our debates, from abortion to schooling to employment law to "hate" speech.

Yet believing we do live in such a potentially genocidal society has all kinds of negative implications for those who must defer to Kinsella's and Farber's expert class, instead of fighting things out in freer less centralized arenas. It makes all of us less free. And ultimately that is the challenge we need to put to people: do you realize that only greater freedom can solve certain kinds of post-postmodern problems - the problems now posed by our previous "solutions" to the Holocaust - and that we are not in the 1930s? If we live forever with Farber's thoughtless "genocide starts with [bad] thoughts" then we can be sure that we will remain trapped in a world where all kinds of discussions can't be had. To question gay marriage, e.g., is to threaten a queer Holocaust... But how is such an understanding really liberating for anyone?

And so K and F should be questioned not largely in some abstract philosophical world but in terms of pragmatic realities in Canada today. (That is what K and F's opponents in the debate, Noa Mendelsohn Aviv and Mike Brock were starting to get at in the clip I saw.) I don't think you can tell people whose lives are genuinely threatened to grow a thicker skin; but you can tell people that there are many downsides to playing the group whose lives are ostensibly threatened - as if that's the only way your leaders and patrons can get "heard" - and who are thus in need of the state to put a chill into their "enemies".

Taking this step almost guarantees these opponents will become enemies and not potential interlocutors in a debate that can hope to find a basis - i.e. the ongoing debate whose healthy existence continually renews the basis - for mutual co-existence, either nationally or internationally. It may be true that there can be little accommodation or dialogue with those who hold to some more primitive understandings of what is sacred and non-negotiable to their group. But to the extent there is any hope for finding something sacred that individuals in a free society or global economy can share and divide, we don't get anywhere near there under our present victim-worshiping discussions and regulations in Canada, it seems to me.

Kinsella is the quintessential liberal, with a great faith in implementing expert/"judicial" processes to mediate problems of "hate". That sounds good to a lot of people because it is what we have been told for a century or so now and especially in the last forty or fifty years. But it is not enough to defer to the experts; at the end of the day there has to be some acknowledgment of reality: can our experts and "judges" today really achieve the task the Kinsellas want them to achieve? Do their careful processes get results? Do they create a sense of justice? Or do all the best laid plans no longer work? Does justice appear arbitrary and political no matter how much careful mediation is attempted? Does justice become indebted to a need for victims to wave around?

Many of us in Canada today no longer have faith in the post-war system. That's the reality. The basic problem, as I see it, is that our expert class mediation - e.g. mediation of some words alleged "likely" to harm - in pretending to appear fair and disinterested, actually requires highly involved and interested "investigations", i.e. bureaucrats engaging in lengthy politically correct talk sessions, in mediating a now politicized law, that go on for years and never really provide a sense of just closure. Offensive words by nobodies can take up years and millions of taxpayer dollars. All kinds of writing is chilled because no one knows if they can say what they want to say, e.g., about Islam as a political religion. If all the experts and "human rights" officials in Canada can't help us transcend the debates and conflicts we're having, which I think to be evidently the case on many issues of "multiculturalism", then we need a new way of mediating our rivalries. But it will take some shared good faith to go there.

When Kinsella offers an emotive argument - "what about the kid who comes out of his house and finds a racial slur on his mailbox"? - I would say well that kind of thing should probably be dealt with under the criminal law of making threats, or possibly vandalism. But for Kinsella to then drop that personal context and go into the abstract world where we should prosecute anyone who makes racially derogatory comments on the internet is to say that a) we believe there really is a threatening "normal" and potentially Auschwitzian culture out there (except this time the state is on the good side), and not just a few mentally ill or terminally resentful people best ignored; and that b) the members of racialized group x cannot but escape their racialized status and stand up as free individuals not too worried about the racists out there and not wanting a victim-championing cure that is worse than the disease. But that all depends on the reality out there in Canada today; and that is what we have to make the Kinsellas debate.

But in order to really win that debate we have to do more to use this debate in a way that is truly liberating for all involved (keeping in mind that some sacred things, in certain political religions, just can't continue to exist and be at peace with the modern world that now sustains us all). We too have to argue in ways that help us move towards creating the reality in which fear of Auschwitz makes less and less sense; that is what the present debate should really be about. Debate on section 13 needs to become the sign of a new and freer shared order that we are ever trying to build.

The other side only wants to trap us in a limbo of fears. Kinsella and Farber want to throw out red herrings like "what about child pornography?", knowing full well that people will allow for those who have, say, certain literary fantasies, but will not stand for those who abuse children. Ultimately these invocations of an evil that, according to K and F, needs a new and improved expert/speech limiting class to redeem the expert/speech limiting class of the Nazi state, are shoddy ways to make an argument about our shared reality. It is to ignore, most of all, that Auschwitz required much more than bad words: it required a people committed to a state of total war against some imagined evil. Auschwitz may have started with the first guy to hate Jews, but it required World War II to really happen.

It is not enough to invoke that first moment of hate as a justification for state action, especially since resentment of the other is a universal human necessity or inevitability, fundamental to our fallen human reality. We need also to be worried, rather more worried, about justifying the state's righteous calls to war against "the normal" - that evil other within us all. That is what the other side in this free speech debate is doing. They are the righteous (Kinsella's manner on tv is rather supercilious!) defenders of the state and expert class against evil norms. So I'd argue it is they who are taking the first steps to the next genocide. Yes, that's (only) a little hyperbolic, but at least I'll admit it.

I call Farber and Kinsella's position as potentially conducive to genocide in order to insist on some proper symmetry in our claims on a sacred, but I believe infinitely divisible and exchangeable object of common national interest - individual freedom. We need that symmetry to allow for the truly free exchange we can have without undue fear, and that I have faith will best mediate both side's present fears. Kinsella and Farber don't want that symmetry; they want to be the superior experts of a tv-mediated elite with a privileged access to and role in defining the sacred things of our nation. They want to patronize and institutionalize a victim class in the name of "human rights". Time to move on.