Friday, November 14, 2014

Free Speech ... One More Time Part I

Exactly how free speech became a political issue is not something that is readily apparent ... at least in contemporary Canada. In fact, I am not at all convinced that it is. If we were to poll Canadians (and this is done all the time) on their key issues, free speech is just not at the top.  The economy, health care, education, the environment might lead the way (in some combination). Foreign policy issues, terrorism (because of recent events both at home and abroad), aboriginal issues might pop up too. But, I can find little evidence for a groundswell on concern on the part of Canadians about free speech. By itself, that  does not mean that free speech is important. People can be wrong. But, it does suggest that we should have some caution when we read stories about the problems with free speech, particular those related to my workplace: the academy.

I am, however, convinced that there are those who want to make free speech an issue. Again, I am not 100% certain of the reasons. Free speech is important and speech issues do deserve attention. I'll suggest this below, but I will also suggest that the concerns we should have over speech (and its freedom) are not those that are currently being offered. I am, for instance, more concerned about political spin, the misuse of social media, cyber-bulllying and the like than I am about whether or not Canadian university campuses are "bastions" of free speech. I've blogged on this before but let me address this issue. If this blog get's too long, I'll divide it up. There are a number of important issues regarding free speech we should note:

  • Why it is important
  • What it actually is
  • What are its reasonable limits
  • What are the problems with it

My concern with these matters is that I have recently read a number of op-eds and report card like assessments of free speech. One group of self-appointed guardians of free speech gave Mount A a D- or F or something like that so ... bias declared. I work at Mount A and so one might feel that my "school spirit," as it were, has me upset by this bad grade. 

But, my bigger concern is that the current discourse -- very minor, I concede and not being picked up widely -- relates to the fact that we have free speech wrong. The debate about whether or not, say, universities should be "bastions" of free speech is an overly academic debate that lacks any semblance of reality. Because of this, we are not really having a serious discussion of free speech, its import, protections, and limits. This leads me to believe that the current concerns are politicized; not serious efforts to contribute to what should be a productive discussion of speech in Canadian society. I'll return to this later. My goal, to be honest, is to reorient our discussion. To create the basis for a meaningful discussion of free trade that can be useful and effective and not distanced from reality. Let us begin with what I will contend are reasonable limits on free speech. 

Canadian, of course, guarantees free speech under its Charter and a variety of other laws. This is good. But, as I've said before, free speech is *not* the right to say whatever one wants whenever one wants. This has long been  recognized in philosophy. Free speech is *not*, the old saying goes, the right to "yell fire in a crowded building" as a joke (when one knows that there is no fire).  Why? Because it is dangerous. Causing a harm to another human being as a joke is a criminal act and rightly so and on that, I strongly suspect, we would all agree. One cannot use free speech to disguise the fact that one is doing something that a reasonable person knows is dangerous. And, one has to take responsibility for one's actions. In other words, free speech is not a "get out of jail free card." I was never intended to be such and is not such under Canadian law. 

Canadians impose a variety of other reasonable limits on free speech. If you doubt that these are reasonable ... ask a few people. They might begin by saying they are completely for free speech but if you start giving some examples of situations where speech is or should be restricted, they will -- I strongly believe -- quickly agree on the reasonableness of these limits. Note, here, I am discussing reasonable limits; not complete prohibitions.  What are some of these other limits?  They include: 

  • Speech used for the purposes of planning a criminal act (say, planning a crime)
  • Speech used for the purposes of supporting a terrorist group (Canada prohibits some groups from speaking, recruiting, raising money, etc., when that group is going to use this to conduct terrorism. In effect, we "list" the group and subject it to special regulations. You can find a list of groups currently listed here
  • Speech that makes untrue claims. For example, false advertisement.
  • Speech that bullies or harasses individuals (we send kids home from school, for instance, for bullying other kids)
  • Speech that endangers children, such as child pornography

There are others, but you get the point. These are all reasonable limits. In addition, we restrict access to some forms of communication and some materials on the basis of age. For instance, movies and video games are rated to a certain age level. 

And, we also impose limits (although these are admittedly more difficult to specify legally) on the basis of contract. The example I've used in the past relates to my work. I have tenure and with that tenure (along with my institution's Collective Agreement) comes guarantees of free speech. I cannot, for instance, be fired for disagreeing with policies of my university. (We saw this last year in Saskatchewan where university administrators claimed the opposite and they were the ones who ended up losing their jobs) or for my political views or for the art I like or the movies I watch or the novels I read or the things that I happen to write (unless they violate the law, say if I were recruiting for a terrorist organization. Tenure, rightly, does not product its holder from criminal sanction). But, this does not mean that I am at liberty to say whatever I want whenever I want.

I'm on sabbatical this year but I have given a guest lecture or two. Those students who attend that lecture come to hear me speak on the advertised subject. I talked about tourism in Atlantic Canada in a course on regionalism and Trudeau's _Approaches to Politics_ (PET; not Justin) in a seminar. These were guest lectures, but I'd suggest that the profs involved let alone the students would have found it in incredible bad form if I showed up and said "OK, I was going to talk about Trudeau but instead I've brought a slide show of my summer vacation." Because this was a guest lecture, I doubt anything bad would have happened to me if I had done -- other than earning the indignation of my colleagues and students -- but what about when I am not on sabbatical and teaching? Can I come to my intro class and spend the entire class time talking about the Raptors or the Leafs? 

Note the distinction, the students who show up to intro to Canadian Studies like a joke now and then (and, the Leafs usually make a good joke ... no offence, I'm a fan), but they are there not to get my views on Bernier or Kessel, but to learn about the constitution (say, free speech), the economy, Canada's history, regionalism, society, etc. If all I did was talk about my favourite hockey players or what I had for supper last night or .... even ... say, my views on universities policies, they would rightly complain about me and I would, rightly, be told to teach what I am supposed to be teaching. If I refused, there would be some sanction. 

Now, there is a bit of nuance to this position. There are matters of debate in scholarship. I usually try to point these out and indicate who I think is right and why (on which side, as it were, is the evidence stronger). Where the evidence is contradictory, I try to flag this for my students and to indicate that I have moved away from evidence and interpretation into opinion. Opinions are not out of bounds. Indeed, they can be useful. But, I'd argue that responsible instructors do what I do. They teach what they are supposed to teach, indicate the scope of debate, indicate the boundary between opinion and interpretation. They might tell a joke now and then; they might let people know that they cheer for a certain team. But, they have a responsibility to do the job for which they are paid. Moreover, this extends beyond profs. I pay my plumber to fix my pipes; not recite poetry or offer his views on the Conservative party (even if we might talk about the Conservative party and poetry before he or she gets going and after they are done). I pay my lawyer to argue my case in court; not recite his or her favourite song lyrics. In other words, this amounts to this: the law of contract -- the services for which I pay -- can provide another reasonable limit to free speech. 

There is something really important to note about these limits. They are, by and large, contextual. Not all of them are. I'd argue that child pornography is not contextual, but an absolute, but to make that case I'd need to get into a discussion of what pornography actually is. I won't because it is a different subject, but I do want to flag this issue for the sake of accuracy since I am going to argue that most of the limits imposed on free speech depend on context. 

What I mean by context is this: there is nothing wrong with me talking about my summer vacation or chatting with my students after class about the Leafs. It is just not what I should be doing in class. Likewise, there is nothing wrong with me yelling "fire" in a crowded building (even if it might not be the best thing do to; for the sake of safety, there might be other ways of approaching this matter) if there is a fire and I am trying to warn people. There is nothing wrong with my lawyer singing in the pub on Friday night after work. He just should not do it in preference to pleading my case in court. 

And, we might go even further. There is nothing wrong with me joking around with friends about how to rob a bank ("How would you actually do that?") versus planning a band robbery. Joking around about crimes might not be mature; it might not be wise. But, it is not illegal. Moreover, there is nothing wrong with me wearing a stick pin, say, to show my support for some cause (say, Irish Home Rule). Wearing that pin does not associate me with the IRA. I can support Palestinian autonomy and not support terrorism. 

In scholarship -- I'll mention this because it is one area of this discourse that seems to be singled out -- there is a broader scope. I can, for instance, write a scholarly paper explaining why people become terrorists and that might be very useful. This does not mean I should be jailed with a security certificate. 

What we need to recognize, then, in conclusion is that free speech is important (and, I'll get to its importance in a future blog, since this is now too long), but that it is not absolute. There are reasonable limits to saying whatever one wants whenever one wants. A realistic discussion of free speech -- one that is not politicized and is designed to promote a constructive engagement with this issue -- needs to recognize those limits. Why? Two reasons:

1. It is easy to support free speech in the abstract. Who doesn't? Well .. wingnuts, but we don't listen to them anyway. Supporting free speech is like supporting parenthood and good health. It is tells us nothing about anyone that they support those things because everyone does.  In the abstract, I support all kinds of things that I recognize I need to address in a different way in reality. I establish rules for my children, for instance, that in the abstract I (along with just about every other parent) wishes they did not have to establish because in the abstract all our kids would be perfectly behaved. Saying "I support free speech" reminds me a bit of a Chris Rock skit I once saw. Rock is complaining that people he knows want credit for things that they are *just supposed" to do. He says, people say "I look after my kids" and then says "you're supposed to." Or, people say "I've never been to jail." Rock's reply "what do you want ... a cookie?" 

2. Without discussing those limits, we are missing something very important. That thing we are missing is accuracy. We are having a fake debate, an artificial discussion that does not help us address the real concerns that we should have in our society.  
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