Spring 2005 - Volume 8 Number 2
A Little Pepper on Our Plates: Free Speech, Political Correctness and the Concept of a Police State
The general theme that the three books under review have in common is the limitation of free speech in Canada. Their principal subjects appear at least partly dissimilar in terms of specifics and the approaches taken to the specifics vary as well. Pue's Pepper in our Eyes is a collection of essays about the use of force to break up demonstrations peacefully protesting a 1997 meeting of leaders of countries on the Pacific Rim and related events including the alleged improper involvement of the Prime Minister's Office (PMO) in directing police actions for political purposes. Popularly known as the "APEC affair" or "Peppergate" because of police use of pepper spray, it caused some critics to accuse the federal government of employing "police state" tactics to repress freedom of expression. Sumner's The Hateful and the Obscene explores the philosophical principles and arguments underlying the suppression of certain kinds of expression including "hate speech" and "pornography." His balanced and thoughtful account is an excellent example of exemplary scholarship which deserves a careful reading by those who favor as well as those who oppose censorship. Finally, in Democracy Off Balance, Braun discusses the matter of "hate propaganda" laws in Canada in depth. His book presents a sustained but nuanced critique of legal censorship and constitutes a compelling attack on the criminalization of "hate speech."
On the surface, the three instances of restrictions on free speech seem to be motivated by three different concerns. Using pepper spray to bust up a demonstration that might embarrass foreign dignitaries (especially the soon to be deposed president Suharto of Indonesia) would seem to be an instance of suppression of political speech; developing laws to enforce community standards regarding sexually explicit material would seem to be an instance of suppression of sexual expression (pornography); producing laws that make "hate speech" a crime would seem to be an instance of suppression of incitement to do physical or other harm to members of minority or marginalized groups who have suffered discrimination throughout Canadian history because of ethnic, religious, gender and other ascribed characteristics.
Despite these surface differences, this essay holds that all three forms of suppression are subspecies of the same fundamental phenomenon and that all three books are important additions to the discussion of liberty in a dangerous time. They should be of interest both to those who believe, with the ancient philosopher Diogenes of Sinope, that freedom of speech is the single most important liberty to which human beings can lay claim, and to those who fear that the unfettered right to express subversive, depraved or hateful thoughts in oral, written or pictorial form and through any medium can and should be curbed in the interest of social stability, common decency and the protection of the vulnerable members of society from those who would do them moral, psychological or physical harm.
Free speech is one of the civil liberties commonly granted to citizens as a matter of "right" in liberal democracies. It commonly finds its way into national constitutions and is expressed as an ideal (no matter how seldom fully achieved) in documents such as the United Nations' Universal Declaration of Human Rights (1948). It is, of course, not an unlimited right. Laws against libel and slander, against uttering death threats, against perjury and so on, make it plain that free speech is to be balanced against protection from other sorts of public or personal wrong-doing. Since the focus is upon free expression as described, endorsed and practiced in Canada, it is important to comment briefly upon the context in which civil liberties in general and free speech in particular were historically developed and upheld (or violated) in specific cases. This, in turn, requires a brief discussion of the rule of law and the political philosophy which underlies the general demand for and the granting of constitutionally protected rights and freedoms. A useful way to begin the more general discussion is to contrast the Canadian political culture and legal customs with those of the United States. These countries have enough in common to make comparisons meaningful, yet are sufficiently different to make them illuminating.
Canadians, at their worst, have a reputation for being supercilious, smug and sanctimonious with respect to their attitudes toward the United States. It has always been so. From the American Revolution to the present day, Canadians have regarded themselves as more civilized, more cultivated and more courteous than their loud, loutish and lawless neighbours to the south. Seemingly innately, Americans obsess on individual freedom and the promise of life, liberty and the pursuit of happiness; similarly congenitally, Canadians prefer the common weal protected by a commitment to peace, order and good government. Americans won the "wild west" with unregistered guns, incarcerate more of their citizens than any developed nation and cannot seem to invent an equitable, effective and efficient medicare system despite spending almost twice the amount of money per capita on health care as Canadians do. As for the west, Canada had the "Mounties" (now under contract to Disney) to bring law and order to the prairies permitting significant non-Native settlement. At that time, when they were still the Royal Northwest Mounted Police, my grandfather was one of them.
The principal reason for the cross-border banter is that civil liberties derive from two fundamentally different sources in the two countries. The United States relies on an eighteenth-century definition of natural rights. Sovereignty rests with "the people." It is a republican tradition. Canada is a monarchy. Sovereignty rests with the Crown. Canadian liberties are conventional and extended from the authority of the state to the citizenry at the pleasure of the monarch. In fact, of course, the two contrasting political theories currently produce much the same practical effects. As well, the two systems have come closer in terms of constitutional theory and application. The Canadian Charter of Rights and Freedoms is one instance in which Canada appears to be shifting to an American model of governance; at the same time, some point to the recent concentration of power in the Presidency as indicative of a somewhat less republican ideal in the USA. Nonetheless, at least for the present time, a significant theoretical and institutional difference remains.A Tradition of Languid Liberty
The liberties of Canadians are more the product of common law tradition than of abstract, rational, legal constructs. The organic conservatism of Canadian life is, of course, regularly exaggerated, but there is certainly some truth to the observation that Canadians have traditionally been more deferential to authority and tradition than their free-spirited, revolutionary cousins (cf. Adams, 2003; Friedenberg, 1980, Horowitz, 1966, Lipset, 1963, 1964, 1986, 1989, MacRae, 1964, Truman, 1971). In Canada, liberty was always distinguished from license and was thought to be sustainable only in the context of a culture of respect and an institutional structure that saw a sense of order as the basis for any kind of freedom worthy of the name. Only recently, ironically with the creation of the new Conservative Party of Canada, have American precepts of natural rights, values of competitive individualism, and intense distrust of government insinuated themselves deeply into parts of the Canadian psyche.
Probably prior to the Charter and certainly prior to World War II, the dominant Canadian opinion was that of former Manitoba premier Sterling Lyon who asserted in an interview at the time of the Charter debate: "We know what our rights are. We enjoy them. We don't have to state them. This rather American approach to it is really not ours. We don't worry about things like that. We do what's right" (quoted in Freidenberg, 1982).
It is therefore timely to consider what the notion of personal freedom means in the Canadian polity and how it is managed or mismanaged by the caretakers of the rule of law. One important set of issues concerns the precise constitutional status of personal liberty. As I wrote at the time of the patriation of the constitution, "the Fathers of Confederation … were not much impressed with doctrines that placed individual freedom above the security of the community. These were men who were suspicious of democracy and disdainful of republicanism. They generally believed that it was more important to protect social order than civil rights" (Doughty, 1983, p. 31). To that end, they were meticulous (if occasionally misguided) in their decisions about parliamentary supremacy, a strong central government, a restricted franchise, an unelected Senate, appointed judges and the centrality of the monarchy to Canada's constitutional arrangements. While particular in tending matters of how to define and exercise authority, the British North America Act did not make rights and freedoms a matter of primary or even secondary concern (the concept, in fact, is nowhere addressed in the document). The liberty of the peopleto the extent that it was warranted and could be prudently extendedwas implicit in the phrase "good government." It was simply assumed that wise and benevolent rulers would permit appropriate personal freedoms to the extent that they enhanced the well-being of the citizens without damaging either individuals or the state. This peaceable kingdom (occasionally punctuated by events such as the rebellions of 1837-1838 and the Winnipeg General Strike of 1919) continued lazily until after World War II. Whether under the growing cultural influence of the United States or in response to the global interesting liberal democratic aspirations, Canadians began to express a greater desire for guaranteed political rights; having twice fought to make the world safe for democracy, there developed a yeasty desire to obtain a greater measure of it for Canada itself.
In 1961, partly out of his own convictions and partly in reaction to attitudinal changes (not least in the province of Québec), the Rt. Hon. John George Diefenbaker treated Canadians to a Bill of Rights. It appeared to make solid the defense against violations of Canadian liberties and to ensure fair and equitable treatment for all citizens under the law. While a noble gesture, it proved to be ineffective, especially when compared to the more robust first ten amendments to the US constitution which comprise the American Bill of Rights. Of singular importance is the fact that the Canadian version was not part of the fundamental law of Canada; it was a statute like any other (no less, but no more), and it could be upheld or set aside whenever a conflict was alleged between its provisions and those of any other law. The Canadian Bill of Rights, for example, disallowed discrimination based on race and sex; yet, in one decision (R. v. Drybones, 1970) the Supreme Court declared a particular section of the Indian Act unconstitutional because it allowed discrimination based on race but, astonishingly, the Court made the opposite ruling when faced with a parallel case in which another section of the Indian Act was challenged that similarly allowed discrimination based of sex (Attorney General of Canada v. Lavelle, 1978).
The frailty of the Bill of Rights, its inability to trump other legislation, was one of the main reasons for the passage of the Charter of Rights and Freedoms in 1982. Since then. Canadian liberties have seemed to stand on a stronger footing. While some criticize the Charter of Rights and Freedoms as a faint imitation of the US Bill of Rights, and others fret about the escape hatch for aspirant tyrants to be found in Section 33, the "notwithstanding clause," and still others worry about the apparent invitation for activist jurists to undermine the principle of parliamentary supremacy by encouraging the Supreme Court to generate "judge-made law," it is apparent that the Charter provides a firmer legal defense against blatant cases of official discrimination and a strong symbolic statement on behalf of the rule of law.
Institutional norms, however, are one thing and political culture is another. There has long been a Canadian tradition, inherited from British parliamentary practice, that relied on custom and usage as a greater bulwark against tyranny than a written constitution. In this view, a codified guarantee of rights is inflexible and neither easily reduced nor easily expanded. Such a document may validate specific rights and freedoms but then is in danger of ossification and atrophy. It cannot easily be amended. It therefore runs the risk of obsolescence; in the alternative, if it can be easily amended, it no longer carries the weight of fundamental law. Using the American experience as an example, although twelve amendments to the constitution were proposed, ratified and adopted between 1791 and 1804, only fifteen have been successful in the succeeding two centuries and two of them dealt with the prohibition (1919) and subsequent repeal of the prohibition of alcohol (1933). By these means, slavery was abolished (1865), but the attempt to win an Equal Rights Amendment for women has thus far failed. These and other constitutional matters are of concern. Of perhaps greater concern, however, is Canada's selective memory with respect to violations of civil rights and the ease with which Canadians have acquiesced in unsavory acts by the authorities.A History of Suppression
Many citizens fail to recall or to acknowledge today that Canada has had a rather timorous history of defending individual rights in situations of real or imagined crisis. Apart from blatantly anti-democratic initiatives such as Maurice Duplessis' "padlock law" in Québec's darker days, many Americans and at least a few Canadians have been appalled at how quickly Canadians accept gun registries, high taxes and rules requiring that automobiles keep their front lights on when driving at any time of the day or night. These are matters that Americans would have considered intrusions on their basic liberties; Canadians, however, shrug off such concerns as indicative of anarchic minds. They insist that such measures are legitimate because they promote greater safety and security, the preconditions for meaningful freedoms. Some Canadians also point out that the US has no cause to feel superior in light of the restrictions that they also have willingly accepted including the Alien and Sedition Acts (1798-1801), the extraordinary withdrawal of habeas corpus during their Civil War, and the briefly implemented Sedition Act (1917-1921), an amendment to the Espionage Act (1917) which made it a criminal offence to use "disloyal, profane, scurrilous, or abusive language" about the United States government, flag or armed forces. It was soon repealed, but not before it had been used to send Eugene Debs to prison for ten years! Today, Americans live under the provisions of the Patriot Act (2001) which, once again, permits the authorities to violate long established protections against abuse of civil rights, especially by the military, the police and the judicial system.
Still, whether inspired by some culturally determined deference to authority or an almost innate indifference to liberty, a defining characteristic of Canadians has beeneven in comparatively quiet timesa willingness to submit to the curtailment of individual rights in the interest of civil peace, social order and the public good. Uncomprehending Americans, among others, shake their collective heads when informed of the Canadian readiness to suffer the imposition of the War Measures Act, especially and repeatedly, in peace time.
Among these "others" have been notable Canadians, not least the Hon. T. C. Douglas (recently voted "the greatest Canadian" in a popular contest). Much honored journalist June Callwood has pointed out that "the Magna Carta, the most important document of British constitutional history, is the bedrock of civil rights in English common law but in Canada is suspended with a frequency unparalleled in any other functioning democracy to meet whatever situation alarms the prime minister" (Callwood, 1984, pp. 135-136). Moreover, in the wake of the Gouzenko affair, eighty-four percent of Canadians approved of invoking the War Measures Act in 1946. Said former Liberal cabinet member, the Hon. C. G. Power at the time: "If this is to be the funeral of Liberalism, I do not wish to be even an honorary pall bearer … I freely admit that in the popular mind the government is doing the right thing. I do not controvert or deny that. I only regret" (quoted in Callwood, p. 174). In 1970, the number rose to eighty-seven percent approval for Pierre Trudeau's invocation of the War Measures Act for the stated purpose of responding to FLQ terrorism (cf. Smith, 1971; Tenofsky, 1989; Whittaker, 1993). While, with the benefit of hindsight, the majority of Canadians with memories of the events now appear to have second thoughts, the immediate public reaction was to rush to support the authorities. The same pattern occurred when Parliament passed its Anti-Terrorism Act (2001) amid fevered (and false) talk that the perpetrators of "the events of 9/11" had entered the US through Canada. Although now more skeptical, Canadians were silent when opponents of the measure as Sunera Thobani, former National Action Committee on the Status of Women and Alexa McDonagh, former federal leader of the NDP, were vilified in the press and in parliament. Their treatment by thoughtless editors and imprudent Members of Parliament was as vicious and vitriolic in tone and substance as the abusive reaction to similarly mild American skeptics of the Patriot Act such as literary critic Susan Sontag and comic Bill Maher. The episode deserves sober reflection.The Language of a "Police State"
Concern about specific matters such as the several hasty and improvident decisions to implement the War Measures Act can, of course, be excessive. Although such actions are troubling, it is possible to consider them as temporary aberrations in Canadian political history. After all, except in unusual circumstances (panic of the prospect of a Soviet spy network at the outset of the Cold War and fretfulness about domestic terrorists seeking Québec independence), Canada has flourished without much evidence of jackboots pounding down the pavement, citizens being "disappeared" without a trace or a trial, and police or soldiers acting as a private palace guard to be used at the whim of government leaders.
There has been, the internal colonialism visited upon native peoples and the treatment of "enemy aliens" during World War II notwithstanding, no comprehensive effort to remove all rights of citizenship in a fashion similar, for example, to the Reichstag Fire Decree (Reichstagsbrandverordnung, 1933) which allowed German authorities to take any measure necessary to ensure "the protection of the people and the state." Such "protective" measures included the suspension of human rights as set out in the constitution of the Weimar Republic in 1919 and specifically listed the restriction of habeas corpus, free speech, freedom of the press, freedom of assembly, privacy of the mail, telegraph and telephone, protection against search and seizure and confiscation of property until further notice and even if these restrictions were not otherwise provided for by the present law. It was a crucial step in creating the Nazi dictatorship. It was even more generous than the US Patriot Act in giving extra powers to the state and, in the US case today, it is somewhat reassuring to observe that the US Supreme Court is disallowing some of the Patriot Act's more draconian provisions. It would appear that even the extant "conservative" court is capable of displaying a little spunk and living up to future Chief Justice Charles Evans Hughes remark, in 1907, that "the judiciary is the safeguard of our liberty and of our property under the Constitution" (quoted in Lewis, 2005, July 14, p. 4).
In light of this, and in the interest of refraining from incendiary rhetoric, it is important to be clear when the phrase "police state" is contemplated. As Robin Mathews (1998) has written in an unpublished essay, the concept of a police state requires careful definition. Mathews identifies several elements that can be observed in functioning police states and in specific police state actions. Generally speaking, he says, a police state may be said to exist when the governments use police and military forces as instruments of political power and when the police and the military thereby gain the ability to operate outside the rule of law to pursue criminal or corrupt ends. In essence, a police state involves a "trade-off" between politicians, and police and military forces in which the following seven practices occur:
These and many other events count, for severe critics like Robin Mathews, as evidence of corruption that takes the form of police state activities and points to an emerging pattern that is dangerously close to constituting a claim that Canada is in danger of becoming a police state. From immediately after World War II and the beginning of the Hal Banks affair in which an American thug was brought into Canada for the purpose of smashing the left-leaning Canadian Seamen's Union and allowed to "escape" to the US where he lived out his days free of concern about being returned to the Canadian criminal justice system, through the "dirty tricks" played on dissident (but quite legal political groups) in the 1970s and 1980s, and on to current events, the instances of unpalatable actions that bring the courts, the police, the military and government into disrepute are far too frequent.
It is not my purpose to use the inflammatory language of the police state to ignite passions. I am quite sensitive to the fact that even mentioning the phrase will cause some readers to pre-dismiss subsequent arguments. Still, it may be that other readers will meet the phrase with what Mathews called a "shock of recognition," a recognition of behavior that lies outside the rule of law and, perhaps worse, an indifference to that behavior on the part of citizens who, while professing increasing mistrust of government and alienation from the political process, are nonetheless unwilling to face up to what governments have sometimes done (and gotten away with) in their name. At this point conservative deference to authority threatens to become toxic to the polity. To ensure that these concerns are seen to be shared by responsible citizens as well as protesters and putative "troublemakers," it might be wise to conclude this segment with the words of former Canadian Solicitor General Warren Allmand, a thirty-year veteran of the House of Commons: "In 2000 it was revealed that the RCMP put together a threat assessment list which included the Council of Canadians, Amnesty International Canada … certain trade unions, Greenpeace Canada and so on. So out of control were the police," he recalls, that "when I was Solicitor General, I was bugged by an undercover agent for the RCMP, one of my employees more or less, who described me as a 'communist son of a bitch' … " (Allmand, 2004, February 17, p. 85).
The language of a "police state" may be provocative and inappropriate as a general description of Canadian political life; it is not, however, inappropriate as a descriptor of specific actions and, occasionally, patterns of actions involving the state, the military and agents of law enforcement. Accordingly, citizens may be forgiven if they are unsurprised by such events as the current controversy over the handling of the Maher Arar case.
The Arar inquiry (officially the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar) is going over familiar territory, encountering familiar evidentiary obstacles and facing familiar political problems. As Toronto Star commentator James Travers reports, "in 1981, the McDonald commission revealed that the RCMP, encouraged by a federal government that overreacted to violent FLQ separatists … broke the law by burning barns, burgling offices and sharing personal data with police forces in the US and Middle East. The consequence was that the "federal government banned the RCMP from cloak-and-dagger work … (Travers, 2005, July 2, p. F-2). After 9/11, however, Travers describes how "a panicky RCMP, hurried back into anti-terrorism by a federal government overreacting to attacks on New York and the Pentagon, broke laws by giving personal information to American and Syrian agencies. Once again," he continues, "politicians were so out of the loop that then-US secretary of state Colin Powell knew more about what was happening in Canada than federal ministers." The first item in Mathews' inventorylaw breaking by a law enforcement agencyhas been fulfilled. Items two through five are currently in place and working their way through to their inevitable fulfillment. The Arar case rehearses in the more virulent context of international trade in torture the classic characteristics of police state behavior.
As Travers concludes, "what's left behind is the troubling impression that the central government is either too stupid to learn or finds the lessons of the past too intrusive, onerous, difficult. Either way, every time it fails an important test, the country misses an opportunity to profits from bitter experience."The APEC Affair
What will become of the inquiry into the "rendition" and subsequent torturing of Mr. Arar or the provincial police killing of Dudley George in 1995 by a commission of inquiry ("Ipperwash Inquiry", established in 2003) remains to be seen. The fate of the APEC Inquiry is now historical fact. It is therefore appropriate that W. Wesley Pue, Nemetz Professor of Legal History at the University of British Columbia, should have taken up the task of presenting a comprehensive look at events of 22-27 November, 1997days of intimidation and arrest of Canadian citizens exercising their rights of freedom of speech and assembly to express their displeasure with the Asia-Pacific Economic Cooperation summitas well as the political direction for police to disrupt these legal activities and the subsequent efforts to call both police and political leaders to account. Law suits, investigations by the RCMP Public Complaints Commission (PCC), relentless questions by NDP members of the House of Commons, unintended revelations by Solicitor General Andy Scott, the bullying of CBC executives and their acquiescence in the political demand that award-winning broadcast journalist Terry Milewski be taken off the APEC story, denials by the PMO and the refusal by Prime Minister Chrétien to testify before the PCC all followed within a month-long flurry of activity exactly one year after RCMP officers had used pepper spray to break up APEC protesters and eleven months after the Prime Minister had dismissively joked: "Pepper, I put it on my plate." This most memorable remark was explained as an attempt to get the nation to "relax a bit" (quoted in Young, 2004, p. 41). Apparently, apart from angering the protesters and their supporters, it had the desired effect. It brought, for example, this response from CBC commentator Rex Murphy (1999):"The APEC inquiry very quickly turned into … the judicial equivalent of a black hole. It swallowed everyone and everything that came within reach, The report covering it, its own Chairman, Minister Andy Scott, the protesters who tired and left, the remaining commissioners [and] the facts at issue" (Murphy, 1999).
While his anthology contains articles that are mainly critical of the police and the state, Pue is to be commended for including submissions from a large range of interests with a considerable amount of expertise. Law professors and practicing lawyers predominate, of course, but a philosopher and a political scientist, a decorated eighteen-year veteran of the Vancouver Police Department and reporter Milewski add their voices. The seemingly unavoidable conclusion of distinguished scholars and professionals alike is that the APEC affair, although it resulted in neither loss of life nor any permanent physical injuries, was nonetheless an archetypal example of police state action. More than enough evidence is produced throughout the book to conclude that political leaders influenced police decisions and actions were subsequently taken that had nothing to do with issues of security and law enforcement. The tactics of handling the commission of inquiry were likewise consistent with Mathews' inventory. Refusals to cooperate, much less to provide equitable support to the complainants were persistent and, in the end, there was only a rather pathetic final report, issued on March 26, 2002 by then-Chair Ms. Shirley Heafley. Following Ted Hughes' interim report, it identified "errors … in the areas of command structure, role separation, policy and planning, training, legal support, record keeping, and overall preparedness" (APEC, 2002).
Not even a token gesture was made toward an acknowledgement of the illegal violation of citizens' rights. Ms. Heafley observed that the Commissioner of the RCMP has still not apologized to the people adversely affected by the misconduct of RCMP members. "In keeping with the RCMP's notable Force-wide emphasis on community policing," she wrote, "timely apologies to those people would certainly have been appropriate but, unfortunately, were not forthcoming." Somewhat pointlessly, she added that "an apology now would still be appropriate" (Commission, 2002). Evidently persuaded that few changes were imminent, she concluded by pleading only that "the RCMP Commissioner … keep her apprised of any progress made with respect to recommendations arising from the APEC Hearing and initiatives proposed by him in response." It may take some time.
As fascinating as the detailed narrative of the events themselves and the suspicious communications among the PMO, the university and the RCMP are the excellent explanations of the basic political and legal issues involved in the case. Editor Pue does a splendid job of setting out clearly the democratic principles that are at stake. In his hands, the civics lesson is not remote; it is an engaging lesson in the importance of the rule of law and a solid account of way in which the politicians' and the media's concern with salacious scandals (the "optics" of controversy) must be distinguished from actual principles and their violation. For the serious citizen, a bone-deep understanding of what is expected of government, law enforcement and the adherence of both to the constitution is not a matter of appearance but of the most fundamental reality. The violation of the rule of law is no matter of cheap corruption that can be investigated and excised without damage to the integrity of the body politic; it is a matter of systemic political pathology. Whereas some readers might have been bored with legalistic disquisitions on the nature of courts and tribunals, Pue allows effortlessthough not simplisticaccess to the core issues of the APEC affair.
Accountability also figures large in Pue's book but this subject is presented in plain language and not the turgid prose typical of texts on organizational ethics. Likewise, discussions of political influence (by Andrew D. Irvine), constitutional law (by Margot E. Young), civilian oversight of the national police force (by Donald J. Sorochan, QC) not only illuminate the APEC affair but could stand alone as a serviceable introduction to proper governance in Canada. Other essays in this volume make useful connections to the global trend toward neoliberal political economies in which the freedom of money is deemed more important than that of the citizens who earn and spend it. Reflecting on the civil rights abuses, Joel Bakan, a highly regarded constitutional lawyer, pointedly asks: "Why did this happen? How could a university campus become a 'Charter-free zone' for a day?" His answers, while admittedly speculative, are not reassuring. "Political power," he correctly states, "is maintained either through legitimation or coercion, with most systems using some balance between the two." Authorities have, in recent years, shown a greater willingness to opt for coercion.
Given the propensity of governments to apply force whether in criminalizing poverty, instituting "back-to-work" legislation in labor disputes or undertaking quasi-military offensives against First Nations dissidents, the distinction between politics and the police is becoming decidedly ambiguous. In the absence of responsible and principled decisions by politicians and law enforcers, it now remains to the citizenry (perhaps with the assistance of the courts) to come to its senses. Considering the incarceration of four Muslims held under "security certificates" (uncharged, untried, unconvicted), columnist Thomas Walkom (2005, p. F-2) lets us in on some good news: "After four years of running scared, people are beginning to realize that, hey, maybe it's not a good idea to eliminate civil liberties entirely in the name of fighting terror," or suppressing annoying squeegee kids and panhandlers, or political dissenters, or working people on strike.Justifying Restraints on Liberty
A careful reading of Pepper in Our Eyes will enlighten the reader not only about the unseemly APEC affair, but also about its relationship to the toxins in our polity and the therapies that need to be applied in order to prevent matters from worsening. In The Hateful and the Obscene, L. W. Sumner takes on a more philosophically difficult set of problems. To defend the application of police state tactics in an otherwise constitutional monarchy that normally functions up to the standards of liberal democracy, one would have to be blinded by personal interest and ambition, irrationally fearful of some segment of society or simply an unreconstructed advocate of authoritarian rule. This is not to say that terrorismwhether domestic or internationalis to be tolerated; it is to say that authoritarian methods are, quite apart from ethical questions about ends justifying means, ineffective. Torturing prisoners does not yield reliable information. The War Measures Act did not result in the capture of FLQ members (and may even have precipitated the killing of Pierre Laporte). The Patriot Act and the Anti-terrorism Act have not made either the US or Canada safer. Competent policing and competent intelligence services are the best defenses against heinous acts of violence. Everything else (e.g., "the war on terror") is show business and has not made anyplace safer. Sumner begins with a very different approach to the "facts, analysis and assessment" style of Pue's anthology. He begins by raising the two substantive areas of his concernhate speech and obscenityand by acknowledging his own difficulties in wrestling with the issues involved. He does so, however, from the comparatively detached though certainly not disinterested perspective of the political or legal philosopher. He attests to having a long intellectual involvement with questions of human rights in general and free speech in particular. Addressing the two specific topics, he says that, even as a civil libertarian, his "instinctive, not fully thought out, stance" was generally to oppose censorship of "obscenity" but to support limitations on "hate propaganda." Working out his dilemma (the apparent contradiction in opposing one sort of censorship while supporting another) has resulted in this fine volume.
Sumner takes the first portion of his book to lead the reader through a sensitive and lucid treatment of the general theory of freedom of speech and a cogent account of the framework for thought offered by the iconic liberal democrat, John Stuart Mill. Sumner eschews metaphysical justifications for his defense of liberty. He has no time for appeals to a deity or an abstract theory of natural rights. No discussion of men being "endowed by their Creator with certain inalienable rights" is brooked. Free-floating principleswhether Platonic forms or ontologically inescapable universal libertieshave no place in his practical philosophy. Instead, in an effort both to justify free speech and to set the rules for limiting it, he offers his interpretation of Mill's two basic evaluative instruments:
Sumner's overall point is that, with Mill's framework in place, the questions at issue in decisions about the restriction of free speech are empirical, for the normative issues are implicitly resolved in the framework itself. To determine that a particular instance of expression ought to be banned, the burden of proof is upon the state to supply real evidence both that harm is done and that less harm would befall a community from the restriction than from the authorization of the expression. As with risk management, cost-benefit analysis and harm reduction assessment in social fields such as law enforcement, drug policies and the like, what is crucial is the operational definition of harm (cf. R. Erikson and P. Haggerty, 1997; P. Erikson, D. Riley, Y. Cheung and P. O'Hare, 1997). This is no easy matter and Sumner provides exemplary lessons in how quantitative measures of ostensibly normative phenomena are to be defined and tested.
With respect to the question of obscenity, the results of his study are wonderfully well stated and brilliantly argued. I will not tarnish them with a necessarily inadequate précis. I shall simply state that I have rarely encountered such a convincing rebuttal of the entire project of establishing "community standards" as a test for obscenity for both practical and principled reasons. It is a minor tour de force.
With respect to the question of hate speech, his treatment is, if anything, more persuasive in light of his initial sympathy for the notion that inflammatory utterances directed against some group of people violates liberal concepts of equality, equity and tolerance and ought to be restricted because of the obvious emotional and, too often, the material consequences of being the object of hate speech. Here, however, Sumner rigorously insists upon the application of Mills' tests and finds laws against hate speech generally wanting. The inconsistencies and contradictions evident in social science research (and the consequent effort to shift from experimental or other scientific studies to emotionally arresting personal narratives attesting to harm) make for challenging reading. True, as always, to the logic of his argument, Sumner presents a clear problematic without permitting an easy formula for resolving controversies within it. As always, his reasoning is compelling.
Finally, Sumner does what few historians and philosophers are inclined to attempt. He sets forth a coherent and eminently sensible guide for translating principles into concrete policies and procedures for establishing rules and adjudicating them. Free from abstract doctrine and moralistic cant, he offers a way out of the dilemma of conflicting rights that, if adopted and applied, would most surely not only advance our discussion of free speech rights, but also help to sort out a host of related matters of which the issue of academic freedom should be the most significant for educators.Advocating Liberty without Restraint
The final book in this trilogy is Stefen Braun's Democracy Off Balance. Braun, unlike Pue and Sumner is a practicing attorney, not an academic. His book is no less painstakingly researched and tightly argued for that; however, it is constructed more in the manner of a polemic. Whereas Sumner begins with a studied ambivalence toward some aspects of censorship, Braun offers no equivocation. His task from beginning to end is to present a brief for virtually unfettered freedom and, in particular, for freedom with respect to "hate speech." This is neither an easy nor a popular argument to make. In a multicultural society that expresses at least symbolic opposition to intolerance based on ethnicity, "race," religion, gender, sexual orientation, age, disability and the entire catalogue of categories which sustain bigotry, support for freedom to promote not mere prejudice but overt hatred is difficult to sustain. On the contrary, pressure to adhere to doctrines of political correctness in thought, word and deed have become defining characteristics of our official culture. This attitude is codified in an array of institutional speech codes and enforced through the instrumentality of statutes, human rights commissions, workplace enforcement offices and any number of institutional agencies usually defining themselves in terms of the mission to promote and enforce tolerance, equity and human rights.
Many people (including individuals such as Canadian civil rights champion Alan Borovoy and Braun himself) attribute the current challenges to freedom of public expression to the political left. As Borovoy puts it: "the progressive left has evolved from being the sole or chief target of oppressive politics and repressive laws against socially disconcerting and politically disturbing speech to being one of the leading agitators of such politics and laws" (Braun, p. 3). My own view is that this is only partly true. Activists on behalf of "identity politics" have certainly played a large part in creating and enforcing rules about discriminatory speech; however, in the long run, they appear more like what Lenin called "useful idiots" whose self-described moral purity has been employed for nefarious purposes by authoritarian masters of repression.
That aside, one of the chief virtues of Braun's book is that it presents a keenly felt argument that builds systematically from clearly stated premises to their logical conclusions, all the while undermining what the author insists are unacceptable reasons for criminalizing hate. In his own words, Braun's "overarching theme" is that, "as a feature of ordinary democratic discourse, the right to silence hate is theoretically deficient and functionally flawed. On balance, hate censorship does not and cannot do what progressive hate censors want and expect it to do-promote tolerance, equality, and harmony, combat ignorance and prejudice, and protect and promote democracy. It is," he asserts, "politically self-contradictory and slippery, socially self-defeating, pragmatically unworkable, and jurisprudentially flawed" (Braun, p. 9).
Unburdened by the academy's deference to disciplinary categories, Braun builds his conceptual apparatus from normative political theory, communications analysis and law. His presentation is self-consciously multidimensional as it seeks (in that increasingly tiresome term) to "unpack" various constellations of belief and practice which, in his view, destroy in theory and doom in practice the effort to cleanse our language and literature of all hateful language and images in the hope, thereby, of producing a society of open-minded and respectful individuals.
To Braun, this project is an affront, not merely to his own sense of the importance of free speech but to good, practical sense. Censorship is wrong, and it doesn't even work! Enforced virtue (or the appearance thereof) is no virtue at all. Relying mainly on US sources, Braun exalts the principle of free speech as an essential element in democracy and decries its repression in the interest of social harmony as misguided. The use of impermissible words and the expression of wicked thoughts are the price that must be paid not merely for the abstract principle of freedom but for a functioning and adaptive social order. Suppression leads to repression and repression can emerge in violence. One need not be a Freudian to understand that what is forced underground may later explode, whereas transparency permits confrontation with what is despised or feared and, if we be optimistic at all, the triumph of tolerance through open discussion. This has been the argument since Milton penned his Aeropagitica (1644) and the essentials of the argument have not changed since. As US Supreme Court Chief Justice Brandeis wrote: "If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by process of education, the remedy to be applied is more speech, not enforced silence" (quoted in Braun, p. 59). Censors will, of course, insist that Brandeis' own test, that of a "clear and present danger," for the need for authoritarian methods currently exist. Calm reflection, however, will suggest that such dangers have been wildly exaggerated in the past and imply that calls for swift and punitive action are being sounded now only by those with an interest in expanding the powers of the authorities and with little thought to the genuine health of the polity.
Braun, of course, is unwilling to abandon all limits on free speech. He is quite supportive of authentic exceptions to the principle in which he includes "manner and form" regulations that do not limit what is said but are prepared to curtail methods (e.g., repeated phone calls or sidewalk intrusions); such restrictions, however, do not limit free expression and properly fall under other titles including assault and harassment. He is also happy to accept rules barring "false alarms and fighting words." Again, however, these are not instances of political repression. Stereotypically, yelling "Fire!" in a crowded theatre or inciting violence through verbal attack do not fall within the category of censorship because there is no third party. As Braun puts it: "Alarmism and pugilism are speech lines, not communicative triangles. There are listeners, but … there is no public at large for conversion to a cause in any socially or politically meaningful sense of that term" Bauer, p. 179). Rules against provoking hysteria or promoting brawls are justifiable as a result of their immediate consequences that are part of other aspects of law. These and other exceptions (notably defamation) are all handled well precisely because the offenses they give are not those of political opinion and are therefore properly legislated in terms other than those of free expression.
The final theme to be mentioned here is the politics of anti-hate propaganda law. After a lengthy, informative and useful discussion of alternatives to hate censorshipalternatives that are worthy of discussion because they are more specific and realistic than vague appeals to "awareness," "education" and "consciousness raisingBauer highlights the "unholy alliance between elite, popular and juridical wisdom." This alliance is as one in its conviction that "democracy can successfully safeguard the populace from public offense or the risk of conversion to the cause of the intolerant speaker by legally substituting officially correct meanings and official histories for publicly constructed ones." This notion, he says, "is comfortably embedded in the political culture." As a result, any "disconcerting discourse that tests conventional or elite wisdoms and public faith in them" are "being squeezed." In Braun's view, the jaws of the vice are the courts on the one side and the "progressive left" on the other.
Here I must dissent. I have personally witnessed far more enthusiasm for political correctness coming from the corporate right and religious fundamentalists. In the name of open discussion and tolerance, everything from creationism to the cultural practice of female genital mutilation has been advanced as deserving of equal respect. In the name of tolerance, the "contributions" of cultural minorities to the Canadian mosaic have been substituted for a frank acknowledgement of systemic racismto have participants in the dominant culture delight in pemmican and kayaks does not solve aboriginal problems. Meanwhile, as human relations and communications take the place of structural sexism and social class as the defining Canadian problematics, deep social problems are stashed in a pit of banality and recreational identity politics, leaving the real sources of social conflict undetected and unexamined.
If light is to be shone on endemic inequities, the power source must come from perspectives that do not mimic the ritual observances and pieties of corporatism. Each of these books, in diverse ways but with shared energy and precision, shed much light on our society's troubles and on the troubling ways that we have chosen to address them.References Adams, M. (2003). Fire and ice: The United States, Canada and the myth of converging values. Toronto: Penguin.
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Howard A. Doughty teaches Philosophy and Natural Science at Seneca College in King City, Ontario. He can be reached at email@example.com.
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