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.

Free Speech and WLU (Part II)

In my last blog, I offered a bunch of qualifications: I am not taking sides, nor should my comments be read as doing so, in the debate at Wilfrid Laurier over free speech and hate speech. The argument that I am making is procedural and, to be clear, I am not trying to single out WLU. I suspect that many post-secondary institutions have similar procedural issues. I'll try to get to the issue of why we have these procedural issues in another blog (because I don't think it is out of evil intent or neglect).

In my last blog, though, I argued several key points:

• Faculty employing TAs must ensure proper orientation so that their TAs understand the rules of their courses, what is acceptable as teaching aids and what is not, so that everyone is working toward creating a positive learning environment (the precise meaning of which might differ from prof to prof and course to course, for legitimate reasons). In this case, this seems not to have been done. 
• That committees sanctioning individuals for breaches of the rules have a responsibility to get the rules right, as it were. If a committee is contending that there has been a breach of Canadian law, for example, they must ensure that their interpretation of the law can hold up because the law is not, of course, simply a matter of opinion and we want to avoid "well, I think X is wrong" types of argument in which there is not way to determine the accuracy of given statements. It appears the committee interviewing the TA fell down on this point. 
• That the committee sanctioning the TA (Lindsay Shepherd) also neglected other important matters of procedure that are essential for the effective construction of what we could argue is rule of law but which I would also argue is essential for the most effective free speech situation. These include: informing the accused in advance of the rules they had violated and allowing time to respond. Said differently, a person accused of something should not be forced to "think on their feet" during their defense. 

Moreover, I argued, these procedural points must apply regardless of our view of a person's guilt or innocence. This is elementary I recognize but the persistency of procedural rules cannot apply only in cases where we favour one or another party. That is, to say again, I am saying they must apply even if I am assuming the TA's guilt. 

I want to take this argument a step further but not by way of extrapolation. In other words, I am not going to try to get you to believe and interpretation built on your acceptance of the above contentions (if you accept them, even if for the sake of argument). I am going to try to lay three other important procedural matters that seem, as well, to have been neglected in this case. 

First, the accused must have the right to council. In my workplace, I have at right to have a union rep with me if an administrator is accusing me of something. I have the right to go to my union, to have them provide legal council, and to have them provide representation for me (have a grievance officer, in my case, take the lead in addressing the situation for me). The specifics, however, are less important that the idea. Someone accused of a serious violation of the rules (and, btw, creating a toxic environment in an educational setting is a serious violation of the rules) should not look across the table at three people unless they have their own council who can provide independent advise with regard to rule and procedure. If three people can come together to form an argument against a person ... we again have a power imbalance that is disturbing not because the TA was correct or incorrect, but because it can lead to a situation where a person who has not done anything wrong is deprived of their ability to formulate their own position through independent advise. Again, under Canadian law, we have a right to council. If a person is not unionized, it seems to me that this right is even more important because the union is not there to provide advise and support. 

Second, the accused needs to have the right to know the basis of the complaint against them independently of the person making the accusation. I understand the argument against releasing the name of the complainant. This can be a discussion for another day. But, that is different from seeing the complaint. According the recording (or, at least this is my understanding), Shepherd (the TA involved) was told she did not have the right to know who complained, could not know the number of the complainants, and was not informed of the process through which complaints were made. There is, again, an orientation problem here for TAs, and a potentially significant one, but the identity of the complainant can be protected while other important information -- information necessary for transparency and the legitimacy of decisions to sanction -- is made known in advance of the proceedings. At the least, an accused really does have to have a right to know the following:

• The number of complainants
• The complaint itself 
• The process through which complaints are made

These are procedural matters. Remember, I am assuming for the sake of this argument that the TA is guilty. I am not trying to defend this person. What I am asking is this: as a thought exercise, what is the minimum requirement for a procedure to have legitimacy; that is: to be fair to all concerned. 

Think about it this way, imagine the situation were different. Imagine you were charged with created a toxic environment on campus and you were to be sanctioned by your supervisor (who was also responsible for your orientation to your job). How do you feel -- person reading this blog -- that this process should proceed? Do you have the right to know in advance of the complaint (or, will you be required to defend yourself by "thinking on your feet")? Do you have a right to know the number of complainants? Do you have a right to know the process by which complaints are made? Do you have a right to counsel? 

Third, and there are others I will address in a future blog, your prosecutors cannot also be the people deciding on your sanction. In this case, the committee that was prosecuting the TA were the exact same people who were to adjudicate the legitimacy of the complaint and determine the sanction. You can see the problem in terms of procedure, I trust, immediately. Here is an analogy. What if you went to court to discover the that the prosecutor was also the judge? What would you think your chances of a fair trial might be?

Let us take a step back. What I am saying is that the procedures followed by the committee that determined the TA's sanction were so out of whack that they were going to create problems. If not in this case (and, again, assume guilt if you want in this case), then in some future case. If we have a situation where sanctions can be leveled without people knowing the complaint against them, where prosecutors are also judges, where accused are denied right to counsel, where orientation (an explanation of boundaries and limits) does not seem to have been effectively conducted (that is, a person is being accused of breaking rules and the person who was supposed to explain the rules to the rule breaker didn't) ... well ... in this instance, we have a situation that becomes what has happened at WLU.  The issue, on the one hand, has something to do with free speech, but on the other hand, that something is different than people think.

In my next post, I will try to draw the connection between procedures and free speech. 

Free Speech, Transphobia, Hate Crimes, and Toxic Environments

Just about everyone seem to have something to say about Lindsay Shepherd and the Wilfrid Laurier disciplinary/free speech debacle. If you have missed it, I'm not convinced that there is a neutral run down "out there" but you can start here. I have intentionally avoided commenting on it because I wanted to take some time to consider my views. Heat of the moment does not work well for me and I'm actually not convinced that it worked well for anyone is the debate, discussion, competing protests, etc., that followed. I thought I would write this blog not because I have any particular desire to comment on the facts of the case, but because I have blogged extensively over the years about free speech and this seems to be yet another case of people getting things ... well ... not wrong but partially correct. I also have blogged on academic matters. I will confess I wanted to take a pass on this one because of the heightened discourse, particularly on social media. But, because this incident hit two matters of on-going concern to this blog ... well ... it seemed like a bit of cowardice to avoid it.  I have a particular view. I'll try to get it in in this blog but I might fail and have to write a multi-parter.

My view is this: the problems occurred at a procedural level. Rather than laying blame and or trying to discover that elusive boundary between free speech and personal security (both of which, btw, are Charter rights), we are better off thinking about the procedures we follow to protect speech, orient Teaching Assistants, and review cases of possible breaches of the boundaries, particularly those that include sanctions. This ultimately will not allow us to avoid the hard work of finding out what those boundaries should be, of educating people into their importance, of ensuring personal security and a positive learning environment, but I do think that they can help -- and significantly -- in cases like this. For this reason, I am going to focus on the interview/meeting between Shepherd (the TA) and the faculty and administrators involved. It is, as well, a matter that has not been discussed in significant detail in the commentary that I have read.

This blog is, in other words, a thought exercise.  As part of that exercise, I am going to ask you (readers) to assume somethings that are not in evidence.  My request here is not an indication of what I think happened. It is part of the exercise. For the sake of argument, let us assume that the TA is in the wrong. Let us assume that she is an alt.right provocateur looking to deny the legitimacy of Trans identity or suggest that this identity is open for debate by people outside this community (by which I mean I do not want to assume a reductionist Trans identity myself as part of this blog). In other words, let us assume the worst. What should then happen?

The first thing that should happen is a should-have-happened type of thing. Processes and procedures for dealing with troubling situations in the classroom need to begin before students enter the classroom. As a faculty member who often deals with complicated issues of identity, policy, expression, etc., in my classes and who supervises TAs I sympathize with the prof involved. That is a bias on my part of which you should be aware. One cannot control everything and TAs are not teaching robots that one turns loose on tutorials. This said, professors (again, not referring to any specific prof but as a point of discuss) do need to orient their TAs. They need to establish boundaries on what can and cannot be done in class. They need to be aware of what is going on in tutorials. If there were possible materials that were so bad as to create a toxic environment or a situation where a TA could cause manifest harm to a person, that needs to be brought to the TA's attention in advance of the class. There is a power imbalance between faculty and TAs. It is the prof's responsibility to set the boundaries, to indicate what materials are out of bounds, to be aware of teaching aids that will be used in tutorials, and other like matters.

This is, I recognize, time consuming. My first year as a TA, I met weekly with the prof for whom I worked and with the other TAs. That prof did not dictate what we did in tutorials, but we collectively reviewed what was supposed to happen in that week's tutorial (which was, by and large, content oriented). This is a responsible use of TAs. In this case, this prof may have done that but the first point I want to make is this: TAs must have proper orientation to the courses that they are helping to instruct and it is the prof's job to establish the boundaries that create a positive learning environment.  Since most TAs are young -- in this case not much older than the students in her tutorial -- this is all the more pressing, particularly since the faculty who met with the TA, interrogated her and were in a position to level sanctions, seemed to indicate that the age of the student in the tutorial made a difference. You see the point, if the students were too young to be able to exercise critical perspectives on their own without guidance ... and they were potentially the same age (or, in the same age range) as the TA ... orientation is needed.

Second, when a breach of rules or procedures or guidelines has occurred, you better get that rule or procedure or guidelines correct. Let us be clear: hate crimes are not acceptable. Full stop. The issue here is what happened did not fall under a hate crime according to Canadian law. It might not have been good. It might have been bigoted. It might have be identity-denying, but it did not meet the bar of a hate crime under Canadian law. So, you cannot accuse someone of something that is wrong and, again, there is a burden of responsibility that must lie somewhere. In my view, the burden lies with the individual making the charge. Why? Because the accused cannot be placed in the position of having to convict themselves. That clearly contravenes the Charter. We also need to avoid -- because it is unproductive -- a "well that's what you say"-type of dialogue. Said differently, in levelling a charge, there is a bar that has to be met. An action is not wrong because I think it is wrong. It must be wrong in fact. You can see why. If views and perspectives are the test of what is right and wrong, what happens when people disagree?

I want to be clear on this point. I am not in any way defending hate speech as an acceptable form of free speech. I've made this point over and over again in this blog and so if you think I am ... check out what I've said in the past. What I am saying is that tribunals that can sanction individuals need to operate according to procedures. This is the rule of law. What is more, we all like it and accept it. It is a foundational cornerstone of a free and democratic society (or, a society that wants to be free and democratic). In this sense, the burden of being right in terms of accusations lies with those who are making the allegation and must lie with them.

There is a really important caveat here. It not the job of the complainant to meet this standard either. In this case, and from what I can tell, the student who makes the complaint does their job: they make a complaint. There is nothing wrong with that. In fact, I complain about a lot of things a lot of the time. My colleagues and employer will back me up on that. I've been complaining, for instance, for a long time that we have done little to nothing at my institution to address Indigenous issues. There is nothing wrong with a complaint. The issue is how the complaint is handled as a matter of procedure and administration. This is where I think the serious problems occurred.  Not only were the faculty and administrator involved wrong in their efforts to apply Canadian law to the situation, but at least one faculty member -- judging from the recording -- was unsure of what university rules or regulations had been violated.  More problematic still: the TA had to ask what she was being accused of and what rule she violated.

Again, let us assume the TA was wrong. Let us assume that this was an alt.right person (I am not making a statement; she has every right to define herself) looking to make a stink. Should that change our procedures?  We might want it to, but it can't because if it does we no longer have the rule of law. We have a rule that we apply to some people and not others.   This does not mean that this TA cannot be accused of having committed a breach of the rules and having created a toxic environment or of creating a situation in which there was a potential of manifest harm to a student (a situation, needless to say, that runs counter to a positive educational environment). It is to say that:

• The accused must be told in advance of the meeting what rules they are being accused -- by the faculty, administration, tribunal, etc. -- of having violated
• The accusation must be correct in law (that is, one cannot make mistakes on law for what I will take to be obvious reasons)
• The accused must know this so that they have time to mount counter arguments -- that is, to profess and explain their innocence 
• The specific "charges" must be reiterated at the beginning of the meeting
• The potential sanctions (whatever these might be) must also be a matter of advance knowledge to the accused and reiterated at the beginning of the meeting

The burden of meeting these standards lies *not* with the accused but the accuser (who will not be the person actually making the complaint). 

OK, I've said a great deal already and will need to break off because otherwise this blog will get to long. Part II, I guess, will be coming. What I have said is that as a thought exercise, I am assuming the worst in this situation. I don't know any of the protagonists, btw, and my thought exercise is just that. It is not my view on who is guilty and who is not. In fact, it would be counter productive to make such a statement in advance of much more knowledge and reasoning. What I am saying is that there were procedural problems that occurred. Even on the surface of it these procedural problems seem serious. I make this point not to condemn WLU. I suspect that most of our institutions have similar problems. Hence, this blog. Perhaps there are things we can do to address such problems. In the next part, I'll take this argument a step further.  

Can We Speak to Each Other? Who Can, Should, Is ... Able to Speak on Public Issues

The recent controversy over BLM-TO and Pride raised an issue about the character and scope of political action and who can, and should, speak to certain issues, particularly as they take racialized or gendered or class, etc., forms. There is one school of thought which suggests that only those who come from that background -- be it its racialized markers, gender, orientation, etc., -- can speak to those issue. Class tends to get a bit lost in this discussion for reasons that are, to me, both deeply telling and intensely problematic, but that might be a subject for another day.

The first thing we should note is that this issue -- who can speak? -- is, in fact, not new. I don't know when it first surfaced but I've been listening to it, engaging it, disagreeing with it, supporting it, since I was an undergraduate. So, we are talking about at least the late 1980s as a starting point. What is interesting to me is that in that time -- a span of a generation -- we have not really advanced in our discussion. There are people who still say "person X cannot speak to issue X" and people who quickly, then, accuse the first person of censorship or bigotry or something like that. This is, in other words, not an issue that becomes politicized but an issue that is always already political because it deals with questions of power, marginalization, identity, respect, equality, and the like. The fact that we have been discussing this issue without resolution for such a length of time suggests that it is either (a) an intractable problem (which I don't think) or (b) that we have not made the level of social progress we might like in addressing issues of marginalization and inequality in society (which is what I think).

This leads to the first thing that we should learn about this discussion: there is a need to listen as well as speak. Some people -- say, BLM-TO -- are saying things. They are saying that they face inequality, marginalization, disrespect, and institutionalized and personalized violence. For those of us who do not fall into the identity/subject position that they represent, one thing we might do, rather than ask if we, too, can now speak ... is to listen. After all, if Canada with its systemic inequalities and power relations has failed to resolve this issue up to now ... maybe some new voices can indeed offer some hope for the future.

The second thing is that after listening, those of us who are not part of the group speaking (be it LGBTQ, gendered, racialized, etc.), should look to find way of supporting movements for equality if we truly support equality. I find it rather odd that there are those who claim to support equality but who quickly say "I can't support X or Y because I believe in equality for everyone." This is a bit of a linguistic trick that really has nothing to do with equality. It is, in fact, a way of avoiding supporting a movement for equality. It is a way of saying that Black or gay activists or women are not actually interested in equality, or linguistically marginalizing them and treating them a group that has some sort of nefarious agenda. If one were interested in inequality and addressing it, one would support  those movements that address that problem. If you're not interested ... you won't. Is it is as simple as that ... maybe not ...  but it is also not a lot more complicated.

Support, in the case of these groups, takes a variety of forms. Many groups are looking for people to be allies as opposed to leaders. They generate their own leaders, their own ideology, their own politics and don't need advise or direction from those outside the group. One need not even go to the protests and as long as one does not oppose the movement, one avoids becoming part of the problem. There may, too, be things that people can do in their own lives, whether it is making space in class (say, using my job as an example) to discuss issues or raising uncomfortable questions at work.

I make these points because I think people are often too quick to demand that their voice needs to be heard as part of a movement that does not really involve them. They complain that Black activists are silencing *them* or that feminists aren't listening to *them.* I am arguing that they can speak to these issues (and others) but that they should do so with caution and only after they have tried other things, like listening or not contributing to the problems that these groups mean to address.  Said differently, a desire to join in the discussion and start telling activists what they should be doing or how they should modify their demands or politics is a premature step. Other steps should be taken first.

With this in mind ... can someone speak to issues or politics or problems that stand outside their identity group? The short answer is yes. Why? There are, as far as I can tell, a three reasons.

First, because communication is a powerful tool to share ideas, feelings, politics, activism, etc. Said differently, I -- Andrew Nurse -- as a white middle-aged middle class straight man simply do not share the experiences of others as part of my identity. This should be acknowledged. But, we can talk about issues with those people who do have those experiences, read their words, listen to what they have to say. We do not have to share experiences as the only way of knowing about an issue.  If we pause and think about it, we can see that this is true. Communication allows us to know about more than our own experiences. We often relate stories that happened to other people about which we find out by talking to them. We can convey their emotional state (how they felt), the facts of the matter (what happened to them). We convey information to others that we learnt from reading (say, about the past) or from social or other media. Said differently, we communicate every day and in the process of communication we learn from the experiences of others.

Most political movements, in fact, count on this communicative active as a means to meet their goals, whether they articulate this perspective or not. Again, pause. If I -- as Andrew Nurse -- could never understand what it meant to suffer discrimination or violence as a gay or Black Canadian ... then, why would I ever sign on to support their agenda? If I knew only my own experiences, then there would be no reason for protests, for social media, for signs, for books or songs, etc. If political movements are interested in change, they are interested in communicating to people outside their own movement and group. Thus, far from doing something unusual, speaking to an issue with which one might have limited or no direct experience is, in fact, something that we do all the time. There can be problems; there can be confusions, but it is not an odd or unusual thing.

Second, while we need to recognize that some people may indeed have problems speaking to an issue -- that they might need to look things up or listen -- we also want to be careful about limiting who can speak to an issue because it sets a precedent that people might not want to set. What if, people could only speak to issues with which they had direct personal experience? That might work if we think on a broad level. I, Andrew Nurse, could speak to middle-class, white, straight, anglophone, able bodied, etc., issues but not others. But ... could I really speak to those issues that seem to be consistent with my identity? I am, for instance, a Christian. Can I speak to an issue of a middle-class, white, straight, anglophone, able bodied atheist? Some of my friends who are atheists don't think so. Can I speak to issues of people who are white, straight but in different social classes? Or people who have different family structures?

And, can other people speak to my issues? For instance, can someone who is Black or gay or a woman speak about issues in my life? Said differently, identities are fundamental, important, and political but they are complicated and overlapping. We have some identities at some points in time but not at others. Sometimes, for instance, I am a father; at others, a son. The assumption that person X cannot speak to issue Y assumes (a) that they cannot transcend their lack of experience through communication and (b) that their identity as X stable and encompassing. If, however, we take (b) to its extreme, what we discover is that people can, in fact, speak only about themselves because there is no one else who fully shares your personal and individual identity. I might be white but I don't live in Ontario, have a gay uncle, been unemployed recently, or any myriad of a number of different factors that can and do affect my identity.

(As a digression: this is particularly true and important for historical study. No one, to the best of my knowledge, makes this argument any more, but back in the day there were those who argued that, say, white scholars could not speak to the historical experience of Blacks of Original Peoples or men write about women, etc. You can, I am sure, see the immediate flaw in this argument. It is twofold: (a) one could write history only about one's own group and thus the elite white men who wrote only about elite white men were, in fact, doing nothing wrong by ignoring the rest of humanity since they could not speak about them in the first place and (b) it assumed that experiences -- as the basis of knowledge -- are consistent over time. Thus, a person living in the eighteenth century had a great deal in common -- so this argument necessarily assumed -- with someone of, say, the same colour living in the twentieth or twenty-first century. This is a problematic assumption. People might be marginalized or suffer violence [and my point is not to minimize the violence and repression of the past or the present] but no one living today experienced the Irish potato famine at first hand or the highland clearances, to be just a couple of examples. Thus, if no one has these experiences ... no one can speak to them. This, then, became the irony. An argument -- only X can speak to Y -- when transposed onto the past because an argument that, in effect, said "no one can speak to this history." It became an argument for historical silence and that is clearly not what was wanted.)

Finally, I might not -- do not -- share the experiences of Black Canadians but I might  be able to contribute to resolving the problems that affect Black Canadians and do we want to stop that possible contribution. To be sure, I don't solve the problems in the manner of the movie where the white male protagonist solves the problems for Natives for Blacks or women becoming  a supposed "hero" in the process. But, if we can create multi-vocal dialogues about the problems that affect our society ... then, my view is, we have a better chance of building that multi-vocal society that seems to be the goal of much current protest. Said differently, there is, in my view, a benefit in people talking to each other.

To conclude: I am not arguing that any time an activist raises concerns about voice that they are doing something wrong. I think they are not. I think that those people who are quick to call activists bigots because of their concerns about voice should pause and think about their own perspectives. Have they stopped and listened to what activists or marginalized groups have said? Do they have anything to contribute to equality by speaking or would a different role be better and more useful? Do they simply assume that they have a right to speak to any and all issues and ... when did they start believing that? And, are they speaking honestly and in good faith? Do they really want to contribute to addressing the problem or do they, say, just like being a leader or a speaker?

Marginalized groups have had their voices quieted for too long. It would be a shame if, upon reclaiming them, their speech was challenged by those who would deny their concerns.

Politicizing (Free) Speech; Politicizing Hate (Part II)

In my last blog entry, I tried to explain what Hate Crimes were, in Canada at least, and why it would break new ground if the federal government were to attempt to criminalize expressions of opposition to the government of other states (in general) and Israel (in particular). I tried to argue that hate crimes were a specific aspect of liberal conceptions of the law, were consistent with the idea of (and limits to) rights in society, and were designed to protect individuals from the violence that is often associated with racism, sexism, homophobia, or other forms of prejudice. It was not a political weapon that could be mobilized against civil society to force diverse groups within it to "tow the party line." It appears that the current government has decided it agrees with me ... well ... not me, per se, but with the broad scope of the argument I was re-articulating (since my views on this matter are hardly unique). You can read about the government's position here.

I generally don't comment on current affairs as they unfold because there is too much of a chance I will get things wrong. A bit of time and consideration, I think, can go a long way toward finding logical and reasonable compromises. Some people feed of the heightened emotion of immediate political controversy and some people even want it. Considered analysis, I think, requires something different and so I tend to try to get at least a bit of distance between a subject in the news and my thinking on it.

In this case, however, I think that immediate comment was needed for a couple of reasons and I will pick up on what I was saying last time to continue the argument I was making. I think it was needed because there are people who do equate opposition to the current Israeli government with antisemitism. It is not and to make that equation -- as, it appears, a minister of the crown did -- is politicizing prejudice. It is an attempt to manipulate racism to attain personal or partisan political goals. In this case, Canadians are fairly skeptical about the policies of the current Israeli government and fair enough. A great number of Israelis -- perhaps the majority -- are skeptical about their own government. To equate opposition to a policy (occupation of Palestinian territories, housing expansion, and the like) with antisemitism is not understand what antisemitism is.

Let's follow up this argument by looking at trajectories of current politics and their results.

Redefining Policy:

Yet, for reasons that are confusing -- if important -- the Canadian government has moved in exactly the opposite direction. And, this is the other reason to draw attention to the issue. Not only is it important to distinguish a hate crime from political opposition; it is also important to look at what this kind of argument -- opposition to the policies of the current government of Israel are the same as antisemitism -- tells us about the state of Canadian public life and the changing dynamics of Canada.  This is what I want to address in this blog.

The reason people believed that the federal government was considering redefining hate to equate it with any opposition to current Israeli policy is that it made sense. The federal government, under the Conservatives, has been very slowly redefining all matter of things. This is not surprising and should not surprise us. After all, that is what we would expect conservatives to do and that is why they are conservatives. I've blogged on this before but let me say clearly that that is the goal of politics. It is not just about policy but about the philosophy of nation ... how the country operates and what it takes as its values. Conservatives are conservatives because they do not share liberal or socialist or environmentalist values. Hence, there is always something more at stake in public life beyond the immediate policies being discussed.

Over their time in power, the Conservatives have changed the Citizenship Test (moving it away form the development of the welfare state and commitments to equality and toward war as the defining mark of Canada), Status of Women (removing its commitment to equality between men and women and defining it only in terms of research), Stats Canada (removing its ability to collect detailed information about Canadians), Elections Canada (no longer allowed to promote voting among Canadians), internationalization (limiting access from Mexico and Czech Republic), heritage (militarization), Middle East policy (shift to unconditional support for Israel from neutral "honest broker" position), income tax (find ways of benefitting "traditional" families so that woman at home families don't pay as much tax), etc. There are, I am sure, other things as well.

What has happened -- and I'm just describing it; not passing judgement on it -- is that we have a series of subtle shifts without overthrowing traditional laws and policies.  There has been an extended redefinition of the role of federal agencies, ideas, values, etc. that, taken together, reposition Canada and reposition what it means to be Canadian, at least in the eyes of the federal government. Status of women continues to exist, but the federal government is no longer committed to gender equity. Stats Canada still exists, but the federal state is no longer interested in detailed demographic studies that might or might not provide evidence of changes to or continuities in Canadian society. Canada is still active in the Middle East but it is no longer trying to contribute to peaceful solution to regional conflicts with which all parties can live. People believed that this type of shift was underway because it was not new. Instead, it seemed like an extreme version of shifts we have already seen.

Law, Policy, the Constitution:

One of the changes that has occurred is that the federal government finds itself more and more in opposition to court rulings. I've lost the news story (and so if someone has it, please send it to me) but I recently read a news story scorecard of Harper/Supreme Court conflicts. The Harper government has lost repeatedly when its policies have been challenged as unconstitutional (or, even just not good law). When this happens, the government usually complains about the courts impinging on policy in areas that are rightly its (the government's) prerogative.

The other side of the coin is that it is, in fact, not the courts that are challenging the Harper government. The courts, of course, don't initiate legal action. If you don't know that and have been complaining about the courts overstepping their jurisdiction ... you likely should learn how the courts in Canada operate. Judges don't sit around and say "gee, I think I will take on Harper today." They can act only if a case is brought to them.  It is, as I have said before, a right of  citizens to take matters to the courts and it is a good way of solving problems and conflicts. At the least, it is consistent with the rule of law. The courts, then, rule on issues and they cannot rule on matters from a political perspective. Nor, would we want them to. They rule from a legal and constitutional perspective. We don't want judges saying "I"m a Conservative/Liberal/Socialist, etc., so I will rule this way." We want them ruling on the law.  I know that there are political implications to legal rulings but this is something different from allowing political considerations to determine and rationale rulings.

What happens, then, is that citizens take the government to court and the government loses because it is violating the constitution. In a society that is based on the rule of law, the government cannot be exempt from the law. If it is, the society is no longer based on the rule of law but instead the arbitrary attributes of government. What the government (any government) is, therefore, asking for when it says that the courts should not rule on its policies because it is the government is to be exempt from the rule of law. In other words, they are not simply saying "the courts should not rule on X or Y" but saying "this government's policy should not be subject to the law and constitution and the courts should deny citizens the ability and right to take matters before them." In other words, they are saying that the rights of citizenship should be contracted.  My view is that many people like this idea when the courts rule in a way they don't like but ... that people would very quickly come to dislike the precedent it set because it would subvert the rule of law.

Conclusions:

Why mention any of this? For a number of reasons:

1. The courts are serving as a break on the Harper government because its efforts to redefine policy and law are violating the constitution. This does not make the courts bad. They are simply doing their job. For me, it raises a question: why would a government consistently try to violate the constitution?  I don't have an easy answer to this question but I think it relates to conservative skepticism about individual rights.

2. That if the current government tried to redefine hate crimes, this would be challenged and the courts would uphold that challenge. A hate crime, the courts would almost certainly rule, is something different form opposition to policy X or Y being carried out by the a foreign government.

3. That the government has, however, thought about equating opposition to Israeli policy with a hate crime tells us something about this governments, its perception of Israel, and its perception of the relationship between citizens and the state. In effect, it says that the current government seems to feel that any opposition to Israel (which is, ipso facto, opposition to Canadian foreign policy) can be defined as a hate crime. Think about that.

4. This also tells us something about propaganda. We live through a time where propaganda from the state is becoming more overt. I'll make up an example to illustrate my point. A budget bill that cuts benefits to poor people is called "The Prosperity Law" even though it will make people poorer. There has always been a politics of manipulation but it seems to be ramped up in recent years. We used to laugh at American legislature for the type of manipulative naming and now we find Canadian legislature doing the same thing.

5. This rise in propaganda is often justified by the line "this is our view" which is, of course, no justification at all. I said in my last blog entry, the fact that you believe something does not make it true and its remarkably arrogant to believe that it does.  Yet, there is -- connected to this rise in propaganda -- and odd rise in the believe that "well, I believe" is a good answer.

6. I think that this has an effect on political alienation because ordinary people seen politicians manipulating language to serve their own ends. If a minister of the crown says "It is OK to equate opposition to the Israeli government with hate," the boundary between hate and opposition becomes blurred and confused. If we call cutting benefits "prosperity" and ignoring the past "heritage" ... why would anyone believe anything? Why would they participate in politics?  There is, in other words, a negative consequence to this type of politics of naming.

What I am trying to say is this: whether or not the current government defines opposition to its Israeli policy as hate is important but it is also only one part of a broader change that has gone on in Canadian society and Canadian politics. The government might not do it. Good. It was a bad idea that would have been thrown out by the courts and hence a waste of time and money. But, we can use it to illustrate the changes that have gone on in Canada and what living in a conservative Canada actually means.

A Final Final Word

I might note that almost none -- I counted one person of principle on my twitter feed -- of the defenders of "free speech" opposed the idea of calling opposition to the current Israeli government "hate." This is telling. Over the last few years, we've seen a number of politically right-wing commentators and semi-organizations defend free speech, which they claim is menaced by leftists. I've tended to argue against this and tried to show they the arguments made by these  self-appointed defenders of free speech are spurious. But, we should note that none of them came out in opposition to the idea I've been discussing.  Does this show the politics of their perspective. They are all for free speech for some people but not others? I don't know, but it does make it more difficult for me to take them seriously.

Politicizing Free Speech (Part I)

The Harper government is planning to try to force Canadians to support Israel or, at least, keep quiet if they don't. Here is the news story.  Exactly what is behind this odd move is a matter of speculation. It jives, of course, with the Conservatives self image as tough minded, tough acting, pro-military anti-Arab, etc., etc., and that might be true. It also jives with the Conservatives blithe disregard for Charter rights, again no surprising. And, it is broadly indicative of the current Canadian government's redefinition of Canadian foreign policy, something about which I have blogged before. But, for me, what is perhaps most interesting is the way in which it continues a trend -- one I will admit that I find deeply disturbing -- of politicizing  (or, politically manipulating) areas public life that were formerly not politicized. Moreover, unless I am wrong (and, correct me if I am) the politicizing is getting more crass, more overt, more self-evident. In this case, what we see is the political manipulation of hate crimes in the service of Conservative foreign policy. What the Conservatives are trying to do is to criminalize opposition to Israel.  If you support voluntary sanctions against Israel (something supported by a broad range of OECD countries and reasonable  well-known intellectuals and churches), it appears that you Conservative government is preparing to charge you with a hate crime.

Because this is a such a disturbing trend that directly attack fundamental freedoms (as I said, in effect, potentially criminalizing opposition to Conservative foreign policy), it is a rightly emotional issue that will draw heightened rhetoric and inflame passions. It should. But, we also need to look at this issue coldly and directly and dispassionately to understand what is going on. That is what I want to do in this blog. I'll begin by looking at what hate crimes legislation is all about, note the history of conservative opposition to it, and then situate the current government's embrace and what this tells us about it, before concluding with an assessment of the likely fall out.

Hate Crimes

Canadians became concerned about hate crimes, or more exactly the propagation of hate and inciting to violence as a result, in the 1960s. In response to an upsurge of racism in the US that was exported to Canada, linking up with domestic racism, Canadians began to consider ways to address this problem. Currently, this takes form in the Criminal Code which forbids the propagation of hate. I'll append the relevant sections of the Criminal Code below, but you can find it here.

The philosophy behind hate crimes is important, particularly for a consideration of free speech in Canada. The right wing politicized advocates of "free speech" have long argued against hate crimes and argued that they have the right to say whatever they want, whenever they want. I've explained in other posts why this is not true and, in fact, an immature approach to free speech. What makes it immature (I hasten to add since that is a politically loaded term) is that it is an effort to avoid responsibility. This is what children do ("it is not my fault, Dad!"). Adults accept responsibility for their actions. By arguing that one can say whatever, whenever to whomever, one is saying "I should not be held responsible for my actions" no matter what the consequences. Yet, if we examine the history of hate, its connection to propagation is significant. For instance, in Rwanda, radio broadcasters played a key role in the genocide.

Saying something negative does not automatically make it hate. One say negative things and this happens all the time in Canada. But, these negative things have to be true or have reasonable possibility of being true. I like this legal provision because it makes what strikes me as an imminently reasonable position: everything is *not* a matter of perspective. There are things that are true and things that are not. The earth is not flat, for instance, and the argument "well, that is my perspective" does not get one off the hook, as it were, for believing it. It does not isolate a person, said differently, from being wrong. Thus, one could contend that there is a Jewish conspiracy to take over the world, but one would have to demonstrate that there is some reasonable probability that that is true.

Inciting hate goes further, though, in that it is meant to capture the problems that following from propagating hate against people. That is: it has serious negative consequences. Arguing that person X or person Y is a member of, say, an "inferior race" and "criminal class" a "terrorist" by virtue of the religion they practice, etc., is *not* a politically neutral action, nor by the way is it intended to be (I will blog on this point later because it strikes me as important.) It serves to marginalize people in society and has very real effects. We see those effects in inequality in society. We see it in gay bashing, in the gender gap in pay, in racist attacks on individuals, and, Canadians believed, we would see it much more if we did not make people take responsibility for their actions. If they can demonstrate that what they are saying is true or that there is a reasonable possibility that it is true ... fair enough but simply saying "I believe it, ergo, I can say it" is not good enough (again, I'd argue its immature in the way I defined the term above). You cannot propagate something that is untrue in a way that causes harm to other people. Free speech ends at that place that it harms someone else (this is a basic and long-standing tenant of liberalism).

Traditionally, the more extreme wings of conservatism in Canada have not been fans of hate speech and have tended to oppose its extension, particularly to protect GLBT people and their claims to equality. Hate speech is not the same as human rights protection in other areas but it is closely linked to it. More sober and reasoned conservatives, by the way, (Joe Clark, Dalton Camp) have never had a problem with hate crimes as I have described their operation above, but more conservative political movements have in ways that liberal and social-democratic (Liberal and NDP) political groups have not. Both liberals and socialists/social-democratic (or, whatever one happens to call them) in Canada have tended to support laws against the propagation of hate. Conservatives, on the other hand, have been more wary and so the current embrace of it is a bit of a turn. What is going on here?

Hate Crimes and Public Policy

Hate crimes are also connected to foreign policy. Canada is, of course, not the only country to have hate crime legislation. Hate crimes are, however, not usually about foreign policy. They are connected to it in a multifold sense. First, in the sense that the shadow of the Holocaust hangs over hate crime legislation, whether we like it to or not. The Holocaust is not the only genocide in history, of course, but it is the best known and most discussed. It is an ever present symbol of what happens when hate runs out of control and it should be. Second, it is also a symbol of what happens when one ignores hate. And, ignoring hate, as the genocide in Rwanda most recently demonstrated, is easier to do when it occurs elsewhere. The repercussions are the same, of course. Ignoring the widespread propagation of hate produces violence, but it is easier to ignore if it is something going on "over there" in some "unknown" part of the world. Still, following Rwanda, there was a general recognition on the part of a wide range of commentators and later governments that something needed to be done about hate in other countries. That one should not stand idly by while genocide occurred. Exactly how one country should address this problem is not always crystal clear but the basic idea that something should be done is an important step forward, if we are to protect innocent lives. It is, therefore, a crime in Canada to have engineered a genocide in another country. Canada can and will prosecute genocidaires in Canada for crimes they have committed elsewhere in the world. I have no problems with this nor, I suspect, do most Canadians.

But, and this is an important point, disagreeing with Canadian foreign policy has never been a hate crime and this is where the proposed new government offensive in this regard -- to make it illegal to take action in civil society that is in opposition to the course of policy laid down by the Canadian government with regard to Israel -- is so new. So far, and from what I can tell, the government intends to take action only against those who disagree with its policies with regard to Israel. I could be wrong and, if so, someone let me know.

Before addressing this issue, it is important to note that hate crime legislation does not prevent vigorous public debate on controversial issues. In other words, it does not stop the type of vibrant debate that is healthy for a democracy. In Canada, for example, we had an extensive and vigorous debate on equality in marriage. This is OK. Everyone, I think, knows how I side up on that debate. I found some of the things said by the opponents of equality to be silly, confusing, contradictory, irrelevant, etc., but, I never argued that they were hate nor did any other responsible advocate for equality. In Quebec, there was a vigorous debate on "secularism" that had clear implications for specific groups of people. That debate had its disturbing elements, to be sure. But, no one ever used hate crime legislation  to force anyone into line. The PQ, for instance, did not look to prosecute those who argued against their charter for propagating hate; the current Liberal government has not charged anyone who advocated for the secular charter with hate, after they have come to government. Same thing regarding equality in marriage. Whatever one thought of the arguments against equality, the government never prosecuted people for holding those views and organizing to articulate their views and promote their perspective. Nor, I think most of us will agree, should they have.

Thus, hate crimes legislation is not intended to limit debate in the public sphere. It is designed to address an important problem: hate and the violence it engenders. It is designed to ensure that people take responsibility for their actions and designed to ensure protection for citizens (again, my rights end where I begin to harm someone else).

Summing Up

What have I established so far? The first thing, I suppose is that I'm wordy. This issue requires more space than I originally intended. The more important matters are, however, that:

1. Hate crimes legislation was designed to protect society and is consistent with the traditional liberal and social-democratic emphasis on the protection of the individual. I have rights to the extent that they do not harm others. Hate crimes are illegal because they are about inciting violence.
2. It is based on the idea that people are (or, should be) responsible for their actions. If I cause harm to another person, say, by encouraging someone to hit them or kill them, I am responsible for that action because otherwise that violence might not have occurred.
3. Hate crimes legislation does not make it illegal to say specific things but imposes a test on the articulation of hate. One can articulate hate if one can demonstrate that it is true or that there is a reasonable possibility of it being true.
4. Canada can and will prosecute hate that occurred in other countries, particularly that associated with genocide.
5. The operation of hate crimes legislation in Canada has never been used to limit public debate. Indeed, we have a couple of key instances recently (equality in marriage and the "secular charter") that were rife with prejudiced language and potentially disturbing views, but no one was prosecuted for hate. In other words, despite some disturbing discourse, hate crimes legislation in Canada has not previously been used to limit public debate or force the public to conform to government policy.

On all these points, this step on the part of the current government seems -- if they follow through with it -- to break new ground. It uses hate crimes legislation to criminalize opposition to an aspect of Canadian foreign policy related to Israel.

The degree to which this is consistent with the current (Conservative) government's policy is the subject I will address in the next blog. I'll argue that in some ways it is. It represents, as it were, an effort to change the way in which laws operate in Canada, particularly laws that were designed to protect individuals.

Relevant Sections of the Criminal Code:

Hate Propaganda

Marginal note:Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “genocide”
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Marginal note:Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
Definition of “identifiable group”
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12.
Previous Version
Marginal note:Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Marginal note:Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Marginal note:Defences

(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Marginal note:Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.
Marginal note:Exemption from seizure of communication facilities

(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.
Marginal note:Consent

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
Marginal note:Definitions

(7) In this section,
“communicating”
« communiquer »
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

“identifiable group”
« groupe identifiable »
“identifiable group” has the same meaning as in section 318;

“public place”
« endroit public »
“public place” includes any place to which the public have access as of right or by invitation, express or implied;

“statements”
« déclarations »
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.

Why is Free Speech Important?

So far, I have been arguing that a great deal of current discourse on free speech is misguided. It is misguided because it treats free speech as always absolute (rather than recognizing the contextually necessary and good limits to it) and misguided because it misjudges the importance of free speech to the academy. Free speech is important to the academy, but it is not the only thing that is important and stating that it is does not actually get us very far unless with also acknowledge the importance of other things, like hard work. I have also implied the free speech should not be used as an excuse to disguise or cover over individual responsibility. If I take actions that harm others I should (a) learn from these actions, and (b) address them. Free inquiry, I have argued, is different from free speech without explaining exactly what I mean by this term, but I have implied that people should have to "show their math." In other words, the right to speak is important but speaking on something about which one knows nothing or one is wrong is not good and we should not pretend that it is.

So ... why is free speech important? One could legitimately ask this question and add to it: Andrew, you've taken a lot of space to show limits, misjudgements, errors. And, someone might also say "you know, I can accept much of what you say. Yes, providing a forum for racists is not good and yes, you are right, simply stating that one supports free speech really does not get us very far. But, you're short selling free speech. You are not telling us why it is important." This is a fair critique of this blog to this point so let me address this matter because I later want to argue that free speech confronts a different series of challenges than those identified by its supporters.

Free speech is important for a number of reasons. First, and perhaps ... perhaps most importantly, there is a connection between how we express ourselves and who we are. In other words, our language, social and political views, opinions, ideas, etc., are not something that is somehow different from who we are. They are intimate to us, vital to our sense of who we are, and perhaps even -- to some degree -- constitutive of who we are. When we deny a right to freedom of speech and/or expression we are denying the right of articulating the self. This is not something about which the defenders of free speech talk a great deal but I think it is one of the reasons that so many people view free speech as vitally important. When we tell someone to "be quiet" we are not simply making a statement about their views (whatever those might be). We are making a broader statement about our assessment of their value. They are not worth listening to and they are saying something so bad or silly or dumb that no one else should listen to them either. Don't believe me ... go tell some folks to be quiet when they are making what they think is an important point and watch what happens.

It is precisely for this reason that limits to free speech need to be introduced with care, with appeal procedures, and only on reasonable grounds. Limits to free speech may be reasonable, they may be good, they may be necessary but we need to be very careful that we are not damaging other individuals. This is why I tend to support contextual limits to free speech. Thus, I never suggested (as in the example in my previous blog) that I did not have the right to discuss my summer vacation. I said I did not have the right to discuss my summer vacation instead of the lesson I was supposed to be teaching my students. My summer vacation is important to me and my friends and talking about it is fun and an act of community. It expresses who I am and allows people to share my experiences. I have every right to speak about it. I just need to do so in the right context.

This is also the reason why the protection of artistic or cultural expression is guaranteed in Canada and other countries. I am not an artist but I know how important art, music, poetry, fiction, etc., is to family and friends. Many people, for instance, identify strongly with certain songs. Good. If we censor that song ... we limit their mode of identification, the communities that build around culture, and the human interaction that develops out of it. This does not mean "anything goes in culture" but it does suggest that we should be particularly careful in censoring cultural expression: that there should be a particularly important and pressing reason. For instance, during the Rwanda genocide the US thought about blocking radio signals from RTLM and a radio station that urged the massacre of Tutsi civilians, gave directions as to where they were (so that death squads could find them). They also played songs that praised the killing of Tutsi, recycled racist stereotypes. Censoring this music and this expression, I would argue, would have been legitimate (even though it took place in another country) because there was a pressing and particularly important reason to do.  In other contexts, we might find this music distasteful, and might even suggest that it not be played on the airwaves, but we might talk about it in class. I suspect most people agree with me. Context is important, we should be very careful about censorship, we should provide appeal mechanisms for censored material, and we should make sure that we censor only in pressing and important situations. Other than that, we might find that the price of censorship is too high precisely because it is so bound up with one's sense of self.

This is particularly important when it comes to other matters as well. This includes, for instance, the expression of one's spiritual believes, heritage, values, traditions, and other like manner. Hence, the so-called "Secular Charter" in Quebec was a problem. It did not prohibit criticism of government or policy (see point two below) but it did limit the scope of personal expression to a significant manner. In effect, it made the expression of spirituality illegal (or, rather, would have if it had been implemented) in the public sphere. The result is a direct attack on self-expression and hence on the self and going with this (point four below) an impoverishment of the public sphere.

Second, it is also particularly important to protect citizens ability to criticize government policy. In general, this right can be protected through the Parliamentary privilege of opposition parties, through a free media, and through free speech. Let me use an analogy to illustrate what I mean. Advertisers have to be honest. If they are not, they are engaged in fraud. But, I'd suggest a lower bar for critique of political and governmental leaders. Honesty should -- as I will talk about later -- still prevail but that is self evident and a parenthood-type statement. What is important is that citizens need be free to not simply state their differences with government policy but to constitute through communications alternative policies and governments.

Why? Because government policies impinge directly on life matters and the constituents of a good society. Pollution is dangerous and so ensuring that citizens can criticize, in this example, policies that might produce more is important. Ensuring a responsive government is important and so ensuring that citizens retain the means to hold governments to account between and during elections is important. Political organization is about more than who is in power and who is out. It is about how we organize our society, the values we carry forward, the opportunity for individuals to lead full and meaningful lives. If we limit the ability of citizens to criticize government, we are, de facto, limiting their abilities to define for themselves the constituents of a good life. I am loathe to that. On an individual level, I have no troubles telling someone -- usually a friend -- that they are making a bad decision that has negative implications for their life. I hope I can help them out. But, I don't have the power (nor should I) to force them to do what I want to do. I have only the power of free speech. On a political level, however, the state can impose obligations on citizens. Hence, because of this, a high bar with regard to speech needs to be maintained.

Third .... as I just intimated, free speech can be about my ability to contribute in an effective and -- hopefully -- in a caring way to others' lives. In other words, it is important on both a micro level -- my ability to talk to another person in a way that is designed to improve his or her life -- and on a macro level -- my ability to draw attention to problems that are negatively affected the lives of others. If I (or, someone else, or some group of people) cannot, say, criticize educational policies that might, say, impede education or environmental policies and practices that pollute the environment, then others lives are harmed.

Fourth, limiting free speech impoverishes (as I said above) the public sphere. If we limit how one can express one's self in the public sphere, we limit the range of voice in that sphere. We reduce the spirituality evident in it, the range of views, the culture, the traditions and the heritage. In other words, we make the public sphere bland, but bland in a way that is dangerous as well as culturally limiting. Dangerous: consider again the proposed Secular Charter. In effect, this law if it had been implemented would have had a marginalizing effect. It would have said certain forms of spirituality (secularism) can be legitimately expressed in public but others (say, certain forms of Islam) cannot. The effect, in this sense, is not simply to prescribe certain modes of self expression but to make indicate to the people practices those modes of expression that their self-expression, their spirituality, traditions, heritage, etc., are not welcome. Thus, it creates a hierarchy that has very real human effects. One person (me, for example) is welcome to express themselves in a spiritual sense. Another, is not.

Bland: one does not need to believe in an "everything goes" philosophy to be troubled by a public sphere that limits self expression. Why? Because everyone benefits from diversity. Diversity in Canada is "opt in." The fact that, say, I express myself as a Christian does not mean that anyone else needs to accept what I am saying or my spiritual beliefs. This is, of course, just an example, but you see the point. My expression -- my speech -- does not compel anyone to follow it but it does make it available to those who might want to, or might want to know more about it, or might simply appreciate its aesthetics. If we reduce or eliminate that expressions, I am harmed (point one above) but so are others who cannot now take advantage of what I might be offering them. Because it is opt in, to say this again, the fact that Bob doesn't like what I am saying and ignore me is fine. But if Bob tries to stop me from expressing myself, he limits Mary's opportunity to know more about what I am saying, to engage my traditions, to find a spiritual home for herself (should she desire).

Bland might not be the right word here -- and fix it up for me if it is not -- but I trust the point is made. The vitality of the public sphere is important and add cultural richness and the like and I agree with these points. But, they are also difficult to empirically demonstrate. What we can demonstrate, however, is the effects on others. If one does not know about something ... how can one make up one's mind on it?

This list is not exhaustive. There are many other good reasons to support free speech (one could, for instance, talk about the advances in scholarship as I've already indicated even while noting that scholarship is about much more than free speech) but I again trust that the point is made. What I want us to note, however, is that free speech and expression have important purposes that might be more complex than we first think. They are certainly more complex than the quick soundbites we hear at the time of some controversy about free speech. Their importance is worth thinking about because it can easily be confused. Joseph Heath makes the case somewhere that rights can have a certain nobility about them. That is, that they advance causes that we find noble; that we deeply respect.

The defence of free speech that I have offered here is intended to "get at" that nobility in a way that is both reasoned and serious. Free speech is not a me, me, me, I have this right-type of thing. It is not right that should be defended in the manner of children fighting over toys in the playground. Instead, most of the reasons should defend free speech relate to something more important:

• the ability of people to self-articulate, expressing who they are but recognizing the close connection between our sense of who we are and our culture, values, traditions, spirituality, and self-expression
• the protection of citizens from bad policies (we don't even have to dislike a government to find one or another policy misguided) and the ability to organize alternative forms of governance or alternative governments that more accurately meet the needs of citizens
• our ability to contribute to the meaningfulness of the lives of others and the richness of their lives. 
• the promotion of equality in ways that elide the marginalization of citizens on the basis of their self-expression (in terms of religion, heritage, traditions, etc.). 

When we look at this list, what we see is that free speech is important not as a me, me, me, I want to speak-type of right, but rather as a right that has an important series of social consequences. In other words, the individual right to free speech, at its most noble, is about our connections to other people and our abilities to work together to produce a better world. Free speech at its most nobel is about the other. It is about the self in the sense that it is our expression that enriches and protects others. Moreover, as you will also notice, all of these key important aspects of free speech and expression I have noted are compatible with reasonable limits on it. There is not space in this blog to address this matter in a sustain way but you can see the differences between articulating one's concerns over an educational policy and planning a crime. The one helps others; the other harms. Understanding this might help us understand why most people find limits to free speech not onerous and legitimate and exactly where the barrier between legitimate speech and expression and that which we restrict lies. 

Free Speech ... One More Time Part II (Bastions of Free Speech)

In my last blog entry, I repeated some arguments I have been making for some time about what I see as the reasonable limits on free speech. If they are a tad repetitive, then, I apologize, but I did want to set out what I see as an important consideration with regard to free speech both in itself and because I believe that much of the current discourse simply lacks a connection to reality and so lacks the ability to have a positive effect on Canada.

The key points I was making were that free speech is not the right to say whatever one wants whenever one wants. There can be reasonable limits on it and those reasonable limits to not give a lie to support for it. I can support free speech and also recognize that there are some things that should not fall under its rubric (by virtual of the criminality, danger, violation of contractual obligations). This is, largely but not exclusively, contextual. One is perfectly fine for me to say in one context becomes problematic in another. It is fine for me  to product people by alerting them to a danger. Indeed, I'd view that an an obligation. It is another thing for me to endanger people for my own amusement.

Let me pick up this line of discussion to address what I see as some of the problems with the current crop of free speech advocates. These problems are several:

• Their discussion is not inherently wrong but largely irrelevant because it is so distanced from reality as to be meaningless 
• They fail to recognize the importance of context and treat everything as it it were an absolute
• They are involved in a performative contradiction (their defence of free speech, I will argue, is actually and oddly a rejection of it, for some people)
• They make silly -- not wrong but silly -- claims

I've already commented on the first point and so I won't go over it again. The second point, it seems to me, is largely self-evident and is captured by the "fire in a crowded building" illustration. But, there is an odd ethical point that strikes me as problematic in the discourse of current crop of free speech advocates. I don't want to get their argument wrong and I don't want to insult. Indeed, to do so would be a contradiction on my part and subvert the argument that I am trying to make. If I err, then, please correct me. Everyone stands to benefit from that. 

It seems to me, however, that the ethics of the current crop of free speech activists are about yelling fire in a crowded building. The ethical problem with this might relates to some of the cause celebres in the media over the last few years. Why cannot person X get on stage and insult Muslims or be racist or homophobic? Free speech, I will explain in more detail later, is as Rosa Luxemburg once said, is "freedom for the other." This is a complicated term -- more complicated than it appears -- that deserves a fuller discussion and I'll try to give it that later. Right now, what we need to understand is that Luxemburg is saying this: free speech is not egotistical. It is not about what I (Andrew Nurse) can say but about building a good society for the benefit of others. Much of the discourse of current crop of free speech advocates is egotistical in the sense that it is asks this question "why can't I say whatever I feel like?"

You see the difference? Luxemburg is saying that we need free speech to build a good and free society from which everyone will benefit. I can, and should, be first of all concerned with others and free speech is a mechanism that is good in itself but it is good in itself precisely because it is concerned with other people. It is not about getting more for me, as it were, but promoting conditions of freedom for society. The new advocates, distort this ethic and so tie free speech to a sort of individualized consumerism transposed onto culture. I want to say what I want to say and I want to say it now and ... damn others because simply having me talk is good. I might be making that point to harshly and apologies if I am but I do want to make the point. Where Luxemburg defended others rights to freedom, current free speech advocates don't. It is about what they can say; not whether or not their speech serves the public good. 

To me, this is a problem, but it is not a huge problem. In fact, I might say "fair enough" and move on if it were not for other problems. I just want to note this point because it illustrates the difference between Luxemburg and the classic defenders of free speech and those defending it (or, claiming to) today. There are other more serious problems that we should address.

First, current advocates of free speech quite oddly don't actually defend free speech. Indeed, they often oppose it. Thus, for instance, they are more than willing to defend the right of a racist or homophobe to say racist and homophobic things in the public forma, but criticize those who oppose racism and homophobia. But ... you say, they don't. They all say that they are not racist. 

Good point and true enough. But, again, it is easy to say "I am not racist."  My academic training was in social history and one of the injunctions of social history was, in effect, people vote with their feet. We need to see what people did and not just what they said. If one says one is not racist but defends the ability  of racists to make racist statements ... and then argues that is a good thing ... exactly how not racist is one? 

I'd argue this is a problem. In this case, defending the ability of racists (or, whomever) to make racist (or, whatever) comments is actually facilitating that discourse. It is providing it with a forum and ensuring a safe space from which those comments can be made. In other words, it is not a neutral political position that is simply defending free speech. It is a politically charged activity that facilitates disturbing, dangerous, and anti-humanistic discourses. 

Moreover, there are other options. Rather than simply defending free speech (and ignoring the facts of what this discourse carries with it), there are other options. One could, for instance, argue against racism, rather than simply asserting that one does not agree with it. One could say "OK, so and so just spoke, let me now tell you what was wrong with what they said." In other words, the defence of free speech, in this case, not only facilitating disturbing discourses but ignores other options to counter that discourse (which, make use of free speech) and instead looks to find some neutral political perspective -- some supposedly high moral ground -- that does not exist in the real world. 

But, the current crop of defenders of free speech often go further than this and here is where I think they have serious problems. In addition to facilitating a disturbing discourse and ignoring the options they have to do something good in that context, they actually castigate those who oppose racism. If one unreservedly supports free speech ... why not defend the ability of protestors to state what they want to state. Those who argue that racists (or whomever) should be able to say whatever they want, rarely make this same concession to protestors. But, think about this: why shouldn't they? 

Follow this line of argument. A defender of free speech says "yes, racism is destructive and wrong but I defend their right to say it because free speech is a right that must be defended." They then say something like "and so all you people who are protesting should be quiet and let that racist speak." Hmmm ... you see the contradiction. If free speech is unreservedly good and one should be able to say whatever one wants .... why draw the line at protestors? Why not defend their right to say what they want in whatever forum they want? Why only defend racists and homophobes?  

In this example, the defender of free speech will then say "but these people are trying to stop the racist from speaking and that is wrong because free speech is good." This argument doesn't work because this defender of free speech has already made the case that the propriety of what one is saying is irrelevant to free speech because it is an unreserved good. Thus, he or she, readily concedes that the racist is bad, but they can speak. The protestor is doing something that is also bad but ... they cannot? This is the key ethical problem. It is not that one facilitates dangerous discourses (which, can happen inadvertently to be sure) or fails to stand up the marginalization (which is tough and requires more courage than a lot of us have on a day to day basis), but they use a double standard. People saying negative things either (a) get a free pass or (b) are told to be quiet and let the others speak. The current group of defenders of free speech, in other words, find themselves in a contradictions. Defending the rights of racists but not anti-racists (while giving mouth service to anti-racism0.

The other concern -- my last point above -- is what I called "silliness." Perhaps that is not the right word. Perhaps a better word would be inappropriate, or ill-considered, or lacking evidence. My current pet peeve relates to commentators who say something like "a university should be bastion of free speech." What is wrong with this statement. It seems so self-evidently true that no one could possibly disagree with it unless they are an imbecile. 

The problem is actually multifold:

1. I've already explained that there are reasonable limits on free speech and these limits extend to the academy. Indeed, on of my examples of reasonable limits (teaching) was drawn specifically from my job. But, are we going to allow terrorists to organize on campus? Are we going to allow people to lie about others or falsely advertise because they are on a  campus? Of course not. These laws and these limits apply as much on campus as they do off campus. I can't go on campus and sell snake oil and say "gee, I filched these people but you can't arrest me for fraud because I'm on campus." Indeed, the thought that one could is ... silly.

2. If universities are supposedly "bastions" of free speech ... what about other institutions? Are they not. If universities ... what of public schools? My daughter's high school has a dress code (it is minor but it is there. Clearly a violation of freedom of expression and speech but ... should they not be a bastion and allow anything to go? What about courts of law? Parliament? the media? art galleries? museums? archives? libraries? hospitals? What about ... restaurants? 

Do you think I'm being silly? You see my point, I trust. The idea that universities should be "bastions" of free speech misses the fact that the burden of the university is not any different than many other social institutions. There may be institutions where it is necessary to limit free speech. The military strikes me as a good example, but the "culture of silence" in police forces, on the other hand, seems to have created a great number of problems. 

The word "bastion" in this case is part of a discourse that is attempting to say that the university has a special burden. Perhaps but it misses the point that a whole bunch of other institutions have the same burden and some more so. For instance, I can say things in a court of law or in Parliament (this is called "privilege") that I cannot say in other circumstances. If we were to investigate, we might find that this claim is not silly but it is odd and misplaced and misses the point. 

3. Finally, the idea that universities should be "bastions" of free speech is a confusion of terms. I'd argue that universities should bastion of free inquiry and scholarship. Whether these are the same thing as free speech -- and whether or not they might be more important -- is something that we could investigate. My point for now is that they are different. 

Here is an example: I tell my students who to speak all the time. I am supposed to. I correct their grammar; fix vocabulary; suggest redefined theses. And, as long as one believes in the rules of the English language (and, I concede one might not), this is all fine. By correcting them I am redirecting their speech. I am moving it away from what they said to something else. But, in the process, I am supposedly improving their inquiry and scholarship. I do not limit what they  are investigating, say, in a paper, but I am helping (I hope) to make their language more precise, deepen their analysis, have them consider alternative perspectives. I paper I cannot read because the English is so bad is going to fail and one cannot justify that paper on the grounds of "free  speech" (who are you to fail me for what I said?). 

Scholarship is about evidence. A student who argues that racism is right ... has to prove that. They also, by the way, have to prove that "race" is a fact and not a social construct, but let's leave that complicated point off. If they can't, well ... their grade is again in trouble and free speech does not save it.  Why? It is not that one cannot say X or Y or write X or Y in my courses. It is that the academy is about something more than free speech.

I make this point because I periodically hear people saying "free speech is needed for learning." It might be. But, free speech by itself does not guarantee learning. Simply attending a lecture and listening to a person talk does not make anyone better educated. It helps, but it also might not because, as  I said, so much more is involved. Scholarship, to be clear, is not just about the "free exchange of ideas." It is about rigorous research, commitment, logic, diligence. In short, if learning were just about listening and saying what you thought ... we would not bother to have classes.  Scholarship is about refining ideas, properly presenting those ideas, nuance, sophistication, documentation and evidence.

Take a look at a scholarly journal. I don't care which one: Journal of Canadian Studies, Canadian Historical Review, Studies in Political Economy ... it does not matter. You will notice that the authors have perspectives but you will also notice a lot of source citations. Those source citations are not window dressing or, at least, they should not be. They are supporting evidence. Without them, it does not matter what scholar X or Y said. They might write something with which the editors of, say, the CHR completely agree and that is in sync with what the peer reviewers believe. The piece will still be rejected because it fails the first tests of scholarship: documentation and evidence.

What does this have to do with free speech in the academy? Two things:

1. Those who reduce the academy to free speech as if free speech by itself were the key to learning are just plain wrong. Listening and talking without research, thought, reconsideration, documentation, is little more than an op-ed. There is nothing wrong with op-eds. I read them all the time, but they are not the work of the academy. Its focus lies elsewhere.  In other words, it presents a misguided idea of what my job is all about (including the justifiable limits that are placed on my free speech).

2. It sells students a bill of goods. It does not tell students about the hard work that needs to go into being a good academic. It tells that that simply offering one's opinion is valuable in itself and deserves a stage. It might. But, it might not. No one wants to hear (or, should want to hear) me speak on Chinese history, horticulture, NMR spectroscopy, or a range of other subjects. Even if I can, it would be a waste of your time. Before speaking on these subjects, I'd need to do my homework. I'd need to have something meaningful to say and that comes not from free speech but from doing my homework!