Friday, December 08, 2017

Procedures and Free Speech (Part III)

Let's backtrack. Free speech is a misreported issue and it is a politicized issue. It might have to be because it cuts to the heart of a number of important issues in modern society: democracy, various forms of expression (artistic, self, cultural), the ability to resist or name oppression and so to promote equality, the character of scholarship and education. These are, of course, all laudable goals and, I strongly suspect, they are goals to which the vast majority of Canadians aspire.

Free speech, however, as I have said a number of times, is not the right to say whatever one will whenever one wants. There are a variety of limits, which are broadly and generally accepted and should be because they make sense. Those people who argue for free speech at any cost are actually making a fake argument because they have turned an important matter of public policy, essential for democracy, art, education, into an academic debating club in which the objective is to make one's opponent look bad (I suspect often for political reasons) as opposed to seriously thinking about what free speech is and its legitimate boundaries and having a conversation about that. One-liners don't help us, in other words.

I don't want to go over the reasonable limits (contract, for example) because I've blogged on these points so many times I assume anyone who has any interest in what I am saying can google it. I'll put up a blog that reviews this point sometime in the future.

What is important here is procedure. I've been blogging about procedures because they are essential to free speech, they are essential to fairness, and they are ways of resolving problems or conflict potentially before they began. I believe that the situation at Wilfrid Laurier that I have been using as an example to illustrate my point is a case in point. You might use another term to describe my point -- say, due process -- but the point is simple: in instances where a sanction of some sort (say, a reprimand) is going to be applied in a speech situation (where the defense is going to involve a claim to free speech) (there might be other instances, but I am dealing with speech), there are rules we have to follow and if we breach these rules, the legitimacy of the sanction -- the limit to free speech -- is cast into doubt.  So far I have said that the procedures (or, processes) involve:
  • Proper orientation that establishes limits to pedagogical aids in advance of teaching
  • The tribunal (or, committee) adjudicating the case must get the rules the accused is accused of breaking correct
  • If someone is accused of an offense (say, creating a toxic environment), they must be informed of this in advance of a hearing (or committee meeting or whatever it is called), which includes reference to the specific rule (say, university rule) that they have broken
  • In cases of new faculty or teaching assistants, etc., there must be an orientation that fully informs them of institutional rules
  • The accused has the right to read the complaint in advance of the proceedings so that they  can prepare a counter argument 
  • The accused does not have the right to know the complainant, but does have the right to know the number of complaints and the process through which complaints are made in advance of the proceedings 
  • The accused has the right to counsel 
  • The judges in the case cannot also be the prosecutors 
In the case of the Wilfrid Laurier incident, there may have been enough blame to go around, as it were. I don't know and, as a thought exercise, I am assuming the guilt of the individual involved. What I am trying to say is that these rules apply regardless of an individual's guilt or innocence. 

Someone might now say: why? If someone has created a toxic environment, why do we have to go to such lengths to protect their rights? What about the rights of the people they have marginalized or whose security has been threatened? Good questions and these are not issues -- let me say this clearly -- that anyone should pass over quickly. In fact, it is of such importance that I will devote another blog to it. 

What is important here are two things. First, when imposing a limit on free speech we need to be careful in how that limit is imposed. It cannot be arbitrary and the process by which those limits are enforced needs to fair and just and must be seen to be fair and just. Because what is it stake is -- in part -- the rules by which limit boundaries are imposed on speech. If the procedures that provide for  limits -- even, I am assuming, reasonable and legitimate limits -- are themselves potentially unfair, the reasonable limits will be seen in the same light. 

Said differently, procedures of enforcement are not just an add on to a good policy. They are part and parcel of the way the policy is enforced. If our policies are meant to set a high standard -- say, the provision of an effective and positive teaching environment -- then the procedures that enforce that standard must set the same standard. If they don't, the standard itself will be called into question. 

I'll give you an example. Imagine that you go to a meeting to discover that you are accused of speeding. You are not allowed to see the record of your speeding, you were not told in advance of the meeting when and where you were speeding, you are not told by how much, you are not given the opportunity to consult a lawyer, and the crown prosecutor is the person who will make the decision as to whether or not you are guilty ... in that instance, the legitimacy of a guilty verdict -- and I would argue rightly -- be in question regardless of whether or not you were speeding. And, it would be thrown out on appeal by a higher court, calling into question the rule that had been imposed against speeding. Now, note this: there is nothing wrong with a law against speeding. I agree with it. I had young children and I didn't want people speeding through my neighbourhood. It was not safe.  Hence, I reject the "I should be allowed to drive at whatever speed I want" argument. But, the fact that I reject it does not -- and cannot -- legitimize bad procedure in enforcing speeding and, in fact, will result in court challenges that call the speeding law itself into question (potentially making speeding more frequent). 

Second, we also need to remember that rules are not about the person on trial, as it were. Or, rather, they are not only about the person on trial. They are also about you and me. They are about the innocent. We cannot assume that simply because a person is accused of something that they did that thing. This is not, I want to add, the same thing as disbelieving the victim. This is an issue in which it is vitally important to avoid a binary yes/no type of logic. How one both maintains procedures and respects, believes, and supports complainants is a seriously tricky question but it is made more tricky by a binary that gives us only two options: yes or no. If these are the only options we have, then protecting rights of accused is indeed saying "I disbelieve you" to victims, as it were. What I don't see is why these need to be the only two options. This is important because I don't see a way around maintaining proper procedures. I don't see a way to avoid the points I've suggested above and maintain the legitimacy of any sanction, even if that sanction is done with the best of intent.

I do believe that there will be conflicts around issues of speech because people will intentionally misuse free speech. They will use it to insult people, to organize hate, to call others' identities into question, to marginalize and to oppress and we cannot -- if we want to be a good and democratic society -- accept these things. Thus, avoiding all conflict cannot be out objective in establishing policy because we will not be able to meet that objective. But, I do think we can take steps to minimize conflicts and to find ways to carry on conversations that bring people together into communities of interest. One way to do that is to avoid binaries. Or, at least this is what I think.
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