A Real Threat to Free Speech

This news story  is something I don't usually say: here is a real threat to free speech. Most of the time in this blog, I spend my time explaining why supposed threats to free speech are not actually threat's to free speech. This is a serious one. Here we have a private company trying to use legal resources to silence the official opposition in what could amount of a very serious case of electoral wrong doing.

Let's be  clear, it does not matter who the official opposition might be or whom the private company might be. And, no party has a monopoly of election shenanigans (sponsorship scandal anyway?).

I actually don't expect that this suit will silence anyone. Indeed, I suspect that there will be a small growth industry that develops in academe studying the suit and debating its implications. But, that is not the point. The point is that this case is different from other ones I have discussed.

How so? The key difference is that where I have defended the regulation of speech I have done so for a couple of reasons. First, I've argued that private institutions do have a right to regular speech within the space of that private institution and that the state should not be in the business of telling private institutions what to do. I make this argument because what is at stake is not silencing. I used the example of the University of Ottawa and Anne Coulter. This was not censorship because Coulter's message was in now way impeded. She could continue to say whatever she wanted to say and have lots of media coverage. The fact that the University of Ottawa (this happens to be a university but you could pick any other private institution, say the Lion's Club or the local Legion, etc.) will not let Coulter speak means not that she cannot speak but that she cannot speak in that space. Said differently, I have a right to free speech but I don't have a right to come into your own and force you to listen to me.

Second, and perhaps a bit more evident, free speech cannot be used as an excuse to plan a criminal act or to contribute to an act that creates the possibility of danger for another. By possibility I mean reasonable possibility as under the law. A person who ignores a reasonable possibility of harm to others and does not take action is guilty of negligence. A person who commits a criminal act is guilty of that crime. I argue that we have to accept responsibility for our actions. We cannot plan a crime and take responsibility even if other executed that crime. Likewise, if I create a dangerous situation for others and do nothing about it, I am guilty of a crime. Speech is no different. In Canada we rightly censor speech that contributes to crime (it is, for example, illegal to plan a murder in Canada with another person).

Now this company (Racknine), what of them? Do they not have a legal right to take someone to court if that person is spreading lies about them. Yes, they do. And, we don't want to get rid of this principle: the use of the courts to seek remedies to injustice. In this sense, I might even argue that Racknine is doing nothing wrong in bringing the suit. However, the courts should still throw it out or force a long -- publicly paid for on the part of the defendant -- open court case. (Personally, I know nothing about Racknine).

In other words, we need to create a system whereby the legal system cannot be used as  a tool to stifle democracy. We cannot eliminate the right of the company to sue but we also cannot risk silencing through suits or threats of suits. That would, frankly, give large corporations the ability to shut down arguments any time they faced someone or group from a less wealthy background.

But, there is another big point here and one that might get lost in the shuffle and so I really want to bring it up. While we cannot eliminate Racknine (or, any plaintiff's) right to bring a case, we also cannot assume the guilt of the person they are suing. In other words, the company (or, any plaintiff) has the right to bring the suit and getting rid of this right threatens the rule of law. But, so too does assume that the defendant (any defendant) is guilty. And, because this person is not guilty, he needs to be afforded every assistance in order to maintian his innocence. I admit that this sounds like odd logic because I am saying everyone is right but what I am really saying is that we cannot allow censorship nor can we make decisions that assume guilt or abrogate the rule of law. This case makes these principles look contradictory but if you think about it, I think you'll see the merits of my position. 

This case is, then, different from other instances where I have argued that the state or private institutions have right to regulate speech in specific geographies. I've argued that we need to guard against the use of the legal system for political gain (or, individual economic gain) but we do need to maintain the rule of law. And we need to ensure that large companies -- with considerably more resources that you or I -- do not use those resources to silence Canadians in a politically obnoxious way.  Luckily, we don't have to do that. By using  the public financing of such defences and open-ness, we can ensure both the justice is done and that democracy is served.

Keep an eye on this story. I suspect this is not the last we have heard of it.

Censorship II

Before I broke to blog about a Liberal-NDP merger, I was writing on censorship. Let me return to this subject. Two blogs ago, I argued that irredeemable speech can gain an economic rationale on an individual level: the speaker (or, author) gets something (say, publicity) and others have to pay the price. On the surface this seems like a good argument against politically-useless and offensive expression. Surely, individuals should have to pay the cost of their actions or at least take responsibility for them?

The counter argument is this: surely we should be concerned about the individual because our society is based on individualism. Moreover, someone holding a different view then me might go further and say "Surely, Andrew, you defend individual rights -- say, equality rights with it comes to the GLBT community -- what happened? Is this not a contradiction: you defend people on the left of the political spectrum but not on the right?!

Initially, when I planned this blog, I thought this was a pretty easy argument to address. I'll confess that it might have some merits and that I likely need to put more consideration into this issue.

This said, the question, it seems to me, is this: is there a merit to social cohesion and politeness? Let's start with politeness first. OK, I'm out of vogue. Dignity, concern for others, and moderation appeal to me. Everyone swears ... do we need to swear all the time? Is free speech harmed by politeness? It might be. In literary or artistic work form is often as important as content. One could express one's thoughts in prose but that is no reason to disallow poetry. If form were unimportant, we'd have no troubles disallowing poetry or music or TV, as long as we had print-text prose, we'd be fine. We don't disallow other media, of course, because form is important. Avatar may have been a great script. I'm glad I saw it in the theatre.

This, it seems to me, is the rationale behind protecting artistic expression from unwarranted intrusions by the state or the public. To force a change in form damages expression in a way that calls the integrity of that expression (or, even its content) into question. Here, then, I think one needs to argue on the side of caution and for as little state intrusion as possible, even if the form and content are offensive to some.

This can apply to impolite expression. One might find parts of Denys Arcand's Jesus of Montreal offensive or another film (say, Decline of the American Empire) impolite. Yet, that impoliteness, say, is with purpose. It is needed to make the point Arcand wants to make (that the Church has abandoned Jesus racialism for more comfortable social service that is, sometimes, self-interested). In Decline of the American Empire, the character Remi is a truly despicable human being. To understand the depth of his hedonism, we actually need his discourse; we need that effect, however impolite it might be.

This also strikes me as something different then offending for the sake of offending or hypocrisy. Let's look at hypocrisy first. It is one thing to argue against, say, pornography. We can have reasoned debate on this. It is another thing to argue that gay expression is, by definition pornographic simply because it is gay expression. Or, to argue that gay expression is pornographic and ignore the host of "girlie" magazines in the corner store. Such a contradiction -- condemning gay expression while ignoring girlie magazines -- raises questions about the intent of someone demanding censorship: are they really against pornography (a potentially legitimate position) or simply against gay expression (whether pornographic or not)? In this case, the contradiction seems to me to be something other than a logical argument. It is a way of naming something (gay expression) in order to censor it for reasons other than one's true concern.

Offensiveness: if we accept the right to offend as a legitimate, what happens when we take to its logical extreme? To argue that there is some merit in ... say, portraying Mohammed is a way that some Muslims find offensive means does not mean, I think, that we must accept the proposition that offensiveness is good without any qualifications. If this were so, what is to stop someone from standing outside my local grocery store and saying I beat my children as I stroll in to pick up some milk. It is not true -- indeed libel -- but should not the same principle (offensiveness has merits) hold true? What is to stop someone from taking my picture and photoshopping it onto a capture that reads "terrorist"?

Surely, no one would argue that this is legitimate. Indeed, that is why we have libel laws. And, surely, no one would argue that it is wrong to insult a single individual for the sake offensiveness but OK to insult a group. If we did, then the line "Israelis should go back to Poland" would be legitimate.

None of this actually answers my original questions but I hope it provides people with something to think about. Let's recap. I've argued:

-form is as important as content sometimes and so we need to be careful to protect form from censorship
-we need to be wary of hypocrisy and find out if those arguing for censorship and making a reasoned case or simply advancing their moral and political agenda
-the principle that offensiveness for its own sake is good is open to question when looked at logically

Censorship Part I

Current concerns over censorship in Canada represent an historical disjuncture. In the past, the advocates of free speech (anti-censorship) came primarily (but not exclusively) from the political left, broadly and generally speaking. Its base of support drew together an often unwieldy combination of liberals, socialists, communists, civil libertarians, artists, and the advocates of ethnic and religious minorities, as well as advocates of gay and lesbian equality. Today, many of those same groups would self-define as anti-censorship. Advocates of GLBT equality, for example, continue to express concerns about the operation of Canadian "obscenity" laws while civil libertarians wonder about the way trademark can be use to silence political -- as opposed to commercial -- competition. And, artists, of course, have expressed concerns about the way in which manipulations of funding criteria can silence some forms of expression.

In terms of vocality, however, the field of force in anti-censorship has passed to the "right wing," broadly and generally understood. Here, the issue appears to be almost anarchistic: the right to say what one will about whomever regardless of consequences. Or, rather, that there should be no consequences for saying whatever about whomever. Free expression, in this sense, has been elevated to a penultimate principle that must be defended come-what-may because the alternative is so much worse: authoritarianism seem to lurk in the background.

Is this true? I argued, for example, that there was no good ethically justifiable reason to republish cartoons of Mohammed that were deeply offensive to Muslims. I'd argue the same thing (btw) with regard to Jesus. No great cause was advanced as there was already access to those cartoons and no serious political debate ensued. Michael Adams, for example, without offending anyone!, did more to advance reasoned consideration of diversity in Canada in Unlikely Utopia. If we perform a cost/benefit analysis, then, the cost (divisions within the country) was much greater than the benefits (nothing).

This issue highlights the dynamics of censorship today and, I think, points to some of the odd things going on with this debate, not the least of which is this: individuals with near unprecedented access to media -- and sometimes control over of the media itself -- are claiming that they are be censored. Does this ring true? How does a publisher or editor who can put out just about whatever they want claim they are being censored. Moreover, how can they do this and ignore other issues relating to censorship? For instance, how can a publisher or editor publish offensive cartoons but keep silent while the state cuts funding to its Court Challenge programme or manipulates arts funding or changes the mandate of Status of Women? One form or censorship -- a limit (even a reasonable one) on saying whatever one wants whenever one wants -- is supposedly horrible but another form -- impeding the exercise of due process of law, limiting the speech of those who advocate equality between citizens, or forcing film makers to conform to conservative moral standards -- is ignored as if it did not exist. One person, I concede, cannot do everything. There are limits to human stamina. But, surely, someone who sincerely opposed censorship would be concerned about state intrusions into expression. Which is the greater threat: the state or a small marginalized religious minority?

My cost/benefit analysis failed in one crucial respect. I failed to calculate the benefits on an individual level. I argued that publishing those cartoons had no redeeming cultural or political value. It advanced no cause and only created divisions within the country. What about on an individual level? The individual who chose to publish the cartoons did benefit in the form of public attention. People know his name (I know his name; I doubt very deeply that he has ever heard of me). In a media-oriented world, this type of publicity is not a bad thing for a person working in the media industry. I don't know if he performed a cost/benefit analysis of publishing the cartoons (although I suspect all those running a business do since ... that's how you run a business), but if he did the result would be something like this:

Costs = born by others (society at large in terms of divisions and religious minority)
Benefits == accrue to journalist through increased publicity.

Economists call this a "negative externality." It occurs when someone else has to bear the costs of our actions. For instance, suppose I pollute ... who pays the clean up coasts of my problem? I pay a bit through taxes but not all. Others -- future generations, the ecology -- pay more. In this sense, my polluting -- a seemingly irrational form of behaviour -- gains an economic logic because I am "getting something for nothing" (or, below market value) -- heat, transport, etc. -- and someone else is picking up at least part of the tab. Publishing offensive cartoons for no good reason that creates divisions and are offensive, gains an economic logic in the same way: the publisher (or editor, etc.) get something (publicity); others pay the costs.

Is this good for society? Should we even be concerned about society?

More next time.

Censorship: One More Time

CBC’s Cross Country Check Up this Sunday featured a discussion of human rights cases launched against the media. I did not listen to the discussion -- at least not in any great detail -- because so much of it seemed to repeat what struck me as a very unproductive line of consideration. The problem with human rights cases against the media, some argued, is that they amount to a form of censorship and should not be allowed. Such cases should not be allowed is the explicit logic of this argument. Going along with this is a concern about recent government efforts to deny tax credits -- issued to tv and movie production in Canada -- if, in the view of the state, those productions contain something that is objectionable, say graphic sex or gratuitous violence. This, too, is an example of a rising storm of censorship in Canada that, key individuals in the media argue, needs to be resisted and avoided.

There are a number of problems with this argument, not the least of which is that the two issues -- human rights charges brought against specific journals and a post-hoc denial of production tax credits -- are not the same thing. Let’s start with the human rights issue, but first let’s get a couple of things clear. The things we need to get clear are, as I have said before, the whole censorship versus free speech issue is a dead end. It is an interesting academic argument and has a place in intro ethics classes at universities but beyond that, it does not have a great deal to recommend it. It does not have a great deal to recommend it because it is completely detached from reality. No one is for censorship. There is not secret gang of lefties or neo-cons waiting somewhere to impose censorship on Canadians. All legitimate political perspectives (from social democratic to conservative and everything in the middle) recognize that censorship is antithetical to democracy. You can’t have democracy if the state imposes a strict regime of what can be reported, written, acted, etc. Why? Because the media constitute and important aspect of communications. It is not direct communication, to be sure. It is a mediated form of communications in which messages move through third parties: journalists, actors, novelists, photographers, etc. But, it is a form of communication and communication is essential for there to be sustained critique of government policies and governments. Without communications, citizens cannot engage in the type of reasoned and on-going debate about policy matters that is necessary to: (1) impose those policies, and (2) constitute alternatives to government that make elections free and fair. For instance, communications were required to unite the CA and PCs in a new Conservative Party of Canada. To censor those communications would have meant that an alternative to the Liberals -- that is, a viable alternative government -- could not have been created. My blog, by the way, takes advantage of this right of free commentary: it is what I am doing as I write this.

With this in mind, however, it is also true that no one supports a “say what you will without any repercussions” approach. Civil societies support rights, such as the right of free speech, but also recognize that there need to responsibilities for society to “work.” As well. I have the right to medical care at my hospital, for example, by virtue of my citizenship but I have to pay the taxes that maintain that right. Speech is the same way. We have the inherent right to free speech. It is not a privilege given us by someone, but we also have the responsibility to use that privilege in a mature way.

What do I mean? This: Canadian society correctly outlaws the use of free speech for things like criminal activities. If I use my right to free speech to get together with a group of people and plan, say, a murder, I am breaking the law. If I use my right to free speech to encourage a crowd of slightly intoxicated people leaving a bar to fire bomb a building, I am breaking the law. To defend these actions by reference to free speech is actually to pervert the concept and mobilize something that is good in the service of something that is intensely problematic. All societies impose these limits on their members because, to do otherwise, would endanger the lives, homes, businesses, of the people living within our borders. These are reasonable limits to free speech. JS Mill -- I think -- once said made the point that you can’t yell fire in a crowded building if there is no fire as a joke. The rush to the doors would endanger the lives of the people in that building. To do so, even if in jest, is a criminal act because one is not considering the lives and well being of others. Mature people -- responsible adults -- do this: they think about the implications of their actions.

The problem with not letting people bring human rights cases against the media for what they print or show or air falls into this type of category. Do these cases endanger the right to criticize government policy? Do they endanger the right to suggest better policies? Do they endanger the right to organize in opposition to the government and constitute another government? I honestly can’t see how they do. Moreover, to eliminate the right to bring human rights cases against the media is to suggest that the media are above the law. Think about that: if we eliminated the right of individuals to bring cases against the media, we would be saying that anyone who constitutes themselves as a journalist does not have to obey the reasonable limits that the rest of the population must follow. They are above the law and not subject to it. They have rights but not responsibilities. Another important hallmark of democracy is that no one is above the law. Yet, those journalists who defend free speech and a free press often do so in the name of democracy. This creates an irony: in the name of democracy, journalists are saying they are no subject to the laws of society. They do not need to consider the implications of their actions. Something that would be a crime for, say, me; does not become a crime for them. Is this democratic? Is this equal?

Lest anyone think I am arguing for a state run media, let me make it clear that I am not. I am arguing that journalists need to take responsibility for their actions, the same thing I argue that every adult must do. I am arguing that they must obey the law, the same thing that everyone else must do. They have every right to criticize the government (or, me in the performance of my job, as another example), they have every right to organize in opposition to government (federal, provincial, local). They do not have the right to say or print whatever they happen to please just because they call themselves a journalist. Making journalists subject to human rights law is not a special imposition on them. It means only that they must obey the same laws the rest of us must obey and must accept the responsibilities that come from citizenship. They are not a higher power, exempt from the normal operation of the law.

I’d even go further: the media is unusually important to today’s society. Someone needs to watch them to make sure that their power is not abused. Who should watch them? The state. It does already through the CRTC among other things. I think it is democratic, however, if citizens themselves can watch over the media and deploy their rights as citizens to keep the media in line, to ensure that they act responsibly and in keeping with the idea of a democratic society, that they do not abuse their power. What could be more democratic, in fact, then having citizens serve as ‘watch dogs’? Is that not the highest ideal of a democracy? Yet, those who oppose the use of human rights commissions -- in the name of democracy -- argue against this. I urge them to take their commitment to democracy seriously: accept that we are all equal under the law, they are not a higher power immune to the normal operation of the law, and willing to accept that ordinary citizens can and should play a role in guarding the values of their society. Let’s keep the law as it is.

I’ve now written too much. I’ll have to address the other issue in a future post.