Freedom of Expression: Is it a dying value?

Perhaps one of the most offensive things I have ever heard a Canadian say, was uttered by human rights investigator Dean Steacy of the Canadian Human Rights Commission: “Freedom of speech is an American concept, so I don’t give it any value.”

As far as I know, John Stuart Mill was not an American, but it’s not the ignorance contained within this sentiment that interests me. It’s the underlying values it reveals and its specific implication given the context of its utterance – that a human rights investigator doesn’t consider freedom of speech a human right.

We exist in a universe of interesting dichotomy: Strength and success is often coupled with equally troubling weakness.

The liberal democratic system is quite simply the most successful political system in human history. It has delivered us from the bondage of despotic potentates, repressive theocrats, and tyrannical dictators. It has decentralized power and control within a society, and transferred it back to the individual, giving individuals sovereignty over mind, body and soul.

But as a system, liberal democracy has one deep flaw: It sustains itself only because it’s valued. A liberal democracy stops being “liberal” when one is no longer free to think, speak, act or pray of his or her own volition. It then becomes a “procedural democracy” wherein citizens periodically cast ballots and elect representatives to government.

To that point, it’s surprising to me, the value that we place on democracy in and of itself, because a mind without sovereignty is a vote without meaning. And what is the value of a vote without meaning?

Democracy is easy to idealize largely because it is a visible process. It’s a process that has a physical manifestation, whereas liberty is an invisible state of being that can be taken for granted.

Contemporary socialists view democracy as the missing piece to successful socialism. But what is democratic socialism? Depending on whom you ask it can be a number of things.

Democracy: Meaningless without Free Expression

It is a widely held misconception that democracy as a system enables free expression to exist. I believe this is a fundamentally flawed—rather, it is the presence of free speech rights that enable the democratic process to function.

It would be hard to say that a country such as the Russian Federation is a functioning democracy, given the extreme centralized control over information that the Kremlin has had over political speech. Most worryingly, the disappearance and assassination of journalists critical of the Kremlin demonstrate how a state’s disregard for individual liberty effectively nullifies the benefits of the democratic process. In systems like this, the incumbent always wins. Either because the public is uninformed (through suppression of divergent political discourse), intimidation (through violence and threats), or even complete hijacking of the voting process to make it difficult or impossible for opposition to even run.

Robert Mugabe’s recent presidential victory in Zimbabwe demonstrates a more flagrant example; through intimidation and violence, the opposition was forced to withdraw from a run-off election that was called simply because Mugabe did not like the results of the first one.

The fundamental characteristic of both of these examples is not that the rulers use violence or intimidation to force consensus and maintain power, but that they fundamentally lack any accountability in the first place.

The only way for a people to hold its government accountable is for its people to openly criticize it.
It is surprising that many groups in contemporary Western political circles do not recognize the importance that unbridled political expression plays in staving off corruption, tyranny and the eventual derailing of the democratic process altogether.

For instance, contemporary socialists would have a system where all the political parties are socialist. One of the most popular incarnations of this is an acute desire to insert socialist ideals directly into the constitutions of countries where they gain power. Examples of this include India, where in 1976, a leftist government amended the constitution to clarify that India was a “socialist” state.
Both of Canada’s communist parties—the Communist Party of Canada, and Marxist-Leninist Party of Canada—have similar goals, with both committed to replacing the Charter of Rights and Freedoms with a Socialist declaration of rights that would outlaw private property, enshrine the welfare state, specifically forbid non-socialist parties from running for office, and so on.

While the mainstream left does not hold the outright goal of specifically inserting its political ideology into the constitution, many of these same characteristic beliefs can be observed in their push for more broad speech codes and prohibitions on “offensive” or “discriminatory” speech.

Liberty is an enemy of the ideologically minded, because it provides an avenue for competitive ideas to foment and even gain political recognition or force.

For what value is a revolution, if five years later people vote for the former party, only to undo everything?

We see this dilemma for socialists in Venezuela. Under the auspices of democracy, Hugo Chavez fears loss of control before the “Bolivarian revolution” is complete, and has sought to be granted an indefinite term in office; he needs the time to recondition Venezuelans to socialism so they will not immediately revert back to liberalism.

There is sympathy among the left throughout the West for Hugo Chavez’s logic, even in Canada, amongst a large segment of the New Democratic Party. Chavez faces fierce internal opposition and would almost certainly be overthrown by liberal elements in the country, if not provided indefinite rule for the time being.
The value judgment inherent in such sympathy is that liberty should be subdued to greater ends, socialist ends, and that only democracy is the required factor to keep the society just.
Political dissonance, freedom of speech, expression, association, and other rights central to a liberal democracy are of little value to socialist democracy. After all, to be a democracy, one must only maintain a formal voting process.

If you can’t speak freely about your bourgeois capitalist views, so what? It doesn’t add any value in a collectivist society. And hey, at least you can vote!
Thus defines my entire proposition: democracy is of no value without liberty, and our value in liberty is eroding.

Unfortunately, for the Canadian left, much of this goes beyond sympathy and manifests itself in an outright desire for more government control over public discourse in the name of increasing tolerance and civility.

A good example of this was the case of U.S. late show host Conan O’Brien, who in early 2004 brought his show to Toronto as part of a campaign to revitalize Toronto’s damaged tourism industry in the wake of the SARS virus outbreak.

During one of the shows filmed in Toronto, a comedic segment featuring “Triumph, the Insult Comic Dog” (a puppet dog caricature, and regular segment of the show) was seen traveling around Quebec City and making jokes at the expense of unsuspecting French Canadians.

While there was little resonance within Quebec itself, an Ontario Liberal MP, Jean Augustine, took offense, suggesting that the Canadian “government will not tolerate statements that create dissonance in our society and disrespect for others,” suggesting that O’Brien’s show had committed a hate crime by running the segment making jokes at the expense of les Québécois.

While the whole ordeal was seemingly absurd, including Augustine’s reaction, the general idea that the state should act to protect people from being offended is an increasingly consistent theme among much of the left.

Think about that for a moment. Augustine’s statement is particularly appalling, considering that one could argue that both dissonance and disrespect are absolutely critical to the functioning of a democracy. Was the women’s suffrage movement not wrought with discord? Did Martin Luther King respect those who oppressed him? Do gay rights activists respect those who would take their rights away?

That all being said, it is interesting that a party which calls itself the “Liberal” party exhibits very little interest in one of the most fundamental tenets of liberty.

An Enlightened Value or an Impediment to Progress?

From the immediate period preceding the Great Wars to modern day, we have acquiesced from a strong conception of liberty and its value—even if not fully realized—to a conception of liberty as an inherent trait. Put more succinctly, I contend that Canada and the greater West has largely come to take liberty for granted.

The enactment of campus speech codes, hate speech laws, privacy-curtailing surveillance laws, and due process abridging anti-terrorism laws are the manifestation of this apathy towards liberty.

The last century has seen us acquiesce from a strong sense for the importance of liberty—a sense that was especially heightened during the Second World War, and the immediate time thereafter—towards a strong sense that issues of social equality should be addressed.

The emergence of so-called “progressive politics” in Western society has led to a direct conflict with the tenets of liberty. The enactment of anti-discriminatory speech laws throughout Europe, Canada and to a lesser extent, the United States, is troubling.

However, the use of the state as a tool to correct perceived or real injustice is not exclusively the domain of the left.

Social injustice is the war cry from the left, while it is terrorism on the right. And some fight both in varying degrees.

It is incontrovertible that liberty represents a structural impediment to solving either set of problems. Be it the social democrat that wants to excise property rights, or the conservative who wants to randomly intercept phone and email conversations to gather security intelligence, it is the individual’s sovereignty that is compromised.

Whether or not a person needs the property being expropriated or the party to a phone call or email has something to hide, the power by which a person has to exercise control over their domain is quantifiably diminished.

The cultural value of liberty became so successful, and its influence became so powerful that its presence became invisible and its limitations – not on the individual, but on the collective – became the focus of our attention. A life without liberty is incomprehensible to someone who’s always had it. And conversely, a life with liberty may be difficult to embrace or fully understand for someone who’s never had it.

The Philosophical Argument for Free Speech

While expression may be deceptive, ignorant of fact, or lacking in logic, it is also our only true window into the mind. Thus, to deny expression in any form is to obscure that view. It is also the denial of truth. By truth, I mean, the truth about that mind.

We deny ourselves the opportunity to engage a person with whom we’d otherwise engage if we had the opportunity to know that person’s thoughts and beliefs.

Which leads us to hate speech.

What utility is there in hateful expression? To ask the question implies that expression itself must justify itself having some sort of quantifiable value, either neutral or positive. If the expression is deemed to have negative utility, it should be suppressed.

This is at the center of the contemporary debate on speech. While I believe the question is valid, I believe that it is posed with an incomplete premise.

How does one judge the value of anything? A commodity has value because it is in demand.

Simply put, something has value because we desire it, and we don’t tend to place values on things we don’t want. Therefore, the first real philosophical question is: if something has no subjective value, even in mass consensus, does that something have utility?

For example: killing another human being is generally not something we value, but does it have utility?

One might be tempted to immediately say no. But one might also consider that we do it all the time, legally, within the auspices of war and national defence. So if you believe that defending your nation has utility, and the use of lethal force to accomplish that is a necessity, it would be inappropriate to simply say that killing has no utility.

However, a philosopher might still argue that it lacks utility on a broader scale, and that the war itself, and the circumstances itself are where the grander disutility exist, in which case it is only the nation in the subjective sense that finds utility in killing.

But in the broader philosophical sense, how are we to know which state itself has more overall utility? Perhaps one of the states has much less utility than the other, and overall utility would be increased by the demise of the state with lesser utility?

We could keep expanding this point endlessly if we were enterprising enough. I’m not going to do that. I am however, trying to demonstrate a problem.
As we attempt to judge the utility of an act, we run into this problem; there is an almost infinite causal chain. So how does one ultimately prove to themselves and others that any specific thing represents utility or disutility? It is the problem of both an unknown number of, and unknown state of variables.

Either way, utilitarians, socialists and communists all have a serious problem on their hands: in complex systems, how does one, with any degree of certainty, judge the utility of any one component of that system? If you have any doubts about the complexity of this problem, you should arrange a conversation with a former Soviet economic planner.

As free moral agents, we reserve our right to hold hate speech immoral for those reasons. But to claim that such speech has no utility is presumptuous.

If John Doe writes hateful things on an internet message board, but is challenged by Jane Doe, and his views are either changed or altered as a result, could there then be utility in his hateful speech? By that I mean, could his hateful speech be the trigger by which he ultimately becomes less hateful?
Or perhaps, John Doe’s hatred towards a group may have helped make the community aware of the potential threat he posed, and allowed them to take appropriate precautions?

These scenarios certainly cannot be ruled out. As such, it makes determining the utility of John Doe’s speech a tenuous, if not impossible exercise. And if we are to accept that, then there are other implications.

If free markets have been more effective at regulating themselves efficiently, by allowing for flexible pricing and value on goods based on supply and demand, than have centrally planned systems, it might also stand to reason that free people are more effective at maximizing their own value in a social sense.

Ergo, to judge the utility of something, it must be—at some level—a known quantity. Where the utility cannot be determined, or a multiplicity of utility exists (multiple probable outcomes), to restrict it is purely a subjective manoeuvre.

Moral Relativism’s Dilemma

There is no doubt in my mind that freedom of expression as a value is in decline. The temptation to curtail liberty in an attempt to fix its perceived shortcomings is strong in the face of reprehensible discrimination and the threat of terrorism.

In terms of the logical construction of the arguments for censoring certain political speech, or curtailing privacy rights, the unspoken animus towards liberty is clear: individual liberty interferes with protecting people from hate, or protecting people from terrorism. Or sometimes inversely worded: racists, bigots and terrorists take advantage of liberty to their own evil ends.

The previous statement is particularly interesting, because it indirectly points to one of the most interesting contradictions of cultural moral relativism.

If someone is to grant equal value to all cultures and all moral systems, which is what cultural and moral relativism effectively do, then one must be prepared to accept that such differences are likely to manifest themselves in disapproval, even contemptuous disapproval between cultures.

In the Supreme Court of Canada R v. Keegstra, the court stated in its decision:

There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism…

I’ve never quite accepted the rationale of the R v. Keegstra decision. Specifically because it does not fit into my rationale that free speech can be held as separate from “equality and multiculturalism”.

What is hate? Hate is principally an emotion. An emotion does not necessarily translate to action. So it is only on the basis of potentiality that such prohibitions in law exist.

While it may be tempting to base prohibitions in law on potentiality itself, as it may seem justified, one must acknowledge the potentiality that the power itself to curtail basic liberty could be abused to political ends – ends, as seen in nations like Cuba, China or North Korea, where the government’s power to control the dissemination of information serves to prevent the emergence of any opposition.
One might also argue that prohibitions on freedom of movement could be justified, in that people may use free movement to commit murder, rape, and other violent crimes. If people were restricted from leaving their homes, other than to go directly to work, or to the grocery store, and to obtain license to move between cities, with extensive police checkpoints to enforce such policy that we might all be safer.

Why would people feel safer just because the government is erecting proverbial checkpoints for political speech?

Secondly, what does “equality” mean as it pertains to law? The Canadian Charter of Rights and Freedoms defines it as:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (Emphasis Mine)
I believe the Supreme Court of Canada missed a vital element in their interpretation. In fact, I argue that the decision they rendered makes people unequal before and under the law.
The Supreme Court in this case, and others who make the argument that the curtailment of expression in these cases is a net positive for equality, fail to demonstrate how the targeted group or person is made less equal under the law.

Speaking in terms of existing laws, I am unable to find any law in Canada that deals with the guarantee of social standing, the guarantee of being accepted or agreed with. In R v. Keegstra, no real quantifiable data was put forward for how the equality of Jewish Canadians under the law was diminished by anti-Semitic speech.
Section 2 of the Charter affirms the right of free speech and expression as a sacrosanct individual right in Canada—as it should be. However, our top court opened the door to allow for inequality before the law based on religion and the expression thereof, as religion universally carries with it a moral dictate. This decision opened the door to suppression of religious views that that are deemed hateful or contemptuous according to the judgment of human rights tribunals.

Recently, the Alberta Human Rights Commission found an Alberta Christian Pastor, Stephen Boissoin, guilty of spreading hate for publishing an article condemning the immorality of homosexuality. In the article, Rev. Boissoin vows to take society back from what he views as a widespread “gay agenda”.
The article is actually quite unsettling. In my own subjective judgment, I don’t really find anything redeeming in the article.
However, I do believe that Boissoin believes his own words. He believes that the words he’s written are a manifestation of the moral dictates of his religion. In that sense, Rev. Boissoin is by definition not equal before the law.

You could make a good argument that anti-Semitism creates disparity in a purely social and cultural context, but not before and under the law.

There is no law that specifically includes or excludes Jewish Canadians or Queer Canadians from either the benefits or penalties therein. And it is this exact case that Section 15(1) of the Charter precludes. Not the prevention of hurt feelings, or the proactive screening of expression to prevent future potentialities.

In reality, it was not misinterpretation of Section 15(1) by which the Supreme Court found the legal authority to actually uphold the hate speech provisions. That was Section 1, which allows for “reasonable limitations” on Charter rights.

In this case, the Supreme Court is the ultimately authority on what is reasonable. They found it reasonable in this case to pursue a censorship regime for hate. And their version of what is reasonable is the final say.

The Road Paved With Good Intentions

There can be no doubt that it has been liberally-minded nations which have recognized free expression as an essential right that have seen the most amount of social progress.

It could be argued that it was in fact free speech that enabled the civil rights movement to overcome racism and systemic oppression. The first amendment right in the United States gives any individual the right to voice their opinions without fear of prosecution. It is a shield against tyranny.

The right of organizations like the Ku Klux Klan and bigoted individuals that opposed the inclusion of African Americans into mainstream society were not, with their free expression, able to overcome the sensible arguments coming from the civil rights movement, who equally used their right to free speech. And this is a particularly important point, because the principle argument for curtailing hate speech is that if unchecked by law, it may promulgate through society and culminate in violence.

One of the most commonly invoked pieces of historical evidence for the danger of unbridled free speech is the rise of Adolph Hitler; if Hitler had been limited by an anti-hate speech regime, so the theory goes, he never would have risen to power.

The problem is that the Nazi Party’s propaganda, was in fact, censored under the hate speech laws of the Weimar Republic in which Nazism found its hold and asserted itself over Germany.

In a famous exchange the day Hitler became chancellor of Germany, Otto Wells of the Social Democratic Party stood up and quoted the poet Friedrich Schiller as part of his plea for the continuance of civil liberties.

Hitler dismissed Otto publicly, “Late you come, but you still come. You should have recognized the value of criticism during the years we were in opposition when our press was forbidden, our meetings were forbidden, and we were forbidden to speak for years on end.”
Outlawing Hitler’s ideas and words had done nothing.

Could history have been different if perhaps the Nazis had been allowed a voice? A voice where they would have been openly confronted and criticized by their opponents? Could the persecution of Hitler have strengthened his resolve, and the resolve of his followers?

These are questions that we don’t know the answers to. But what we do know is that political censorship did not avert the rise of Nazism. So it can only be with a poor concept of history that one would believe that outlawing speech of any kind is effective at promoting social harmony.

Despite history’s lessons, we are back in the Weimar Republic if it were. But unlike the Weimar Republic, there is no mass movement afoot to commit an insurrection of the state, intern Blacks and Jews, take over the world, and so forth. In fact, I would contest that we are not on the verge of any social upheaval because of free expression.

Words do have meaning. Ideas can be dangerous. But ideas can be challenged. And they are challenged. It’s time to stand up for the right to have that right once more.

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