Hate Speech, the Rule of Law, and Human Rights Commissions

Some time ago, I saw an episode of TVO's The Agenda on "Free Speech and Human Rights Commissions" which spurred me to write a comment, mainly in response to other comments posted shortly after the show aired. You can see a list of these comments, as well as a blog posting by the producer which got them started here. I never got around to posting my comment, mainly because I couldn't condense what I wanted to say into TVO's character limit, because I figured my comments would do much more harm than good, and simply because I was too riled up to think things through. I've decided to post those edited comments here, now that a little time has passed allowing me to gain some critical distance:


First off, I wish I had caught the first showing of this Agenda episode, as it sure seems to have attracted quite a lot of reactionary and quixotic defences of Canadian liberalism. As a product of said liberalism, through and through, but with enough sense and awareness to be considerate of the lived experiences of many others who are not, I thought I would make a comment regarding the "justice" of hate speech laws as enforced by human rights tribunals. Free speech is a vacuous concept to begin with. Though this argument is likely beyond the reach of the less pensive and more assertive, there has never been a word or concept that I have learned that did not ultimately come from someone else. To say that our speech is "free" is misguided, since we always speak within the necessarily restrictive context of our knowledge, and our language. If speech is not some abstract concept, some ideal to be garnered from upon high or to be internally extracted, but rather a socially embedded practice of negotiating relationships between individuals, it needs to be wielded with the conscious understanding of the impact that it may have upon those relationships. To claim that racist tracts, or any other form of hate speech, are fully protected by the law of "free" speech, is to raise that specific individual freedom above the freedom of the harmed group in the hierarchy of values.

The problem lies in the fact that group identities are not separate from individual identities in many cases. This point comes home to me consistently when Canadians attack American nationalism. Most do not have the intent of putting down the individuals that their attacks will ultimately be disseminated to; that they have this effect and that those people view them as attacks is pointed. Group identities do have deep meaning for people who identify with that group, and generalized attacks on one's race, ethnicity, gender, sexual orientation, ability, etc. can have the same effect as when one is subjected to libel. This is especially the case when this form of 'libel' is so rampant that it translates into tangible structural discrimination from job markets, services or political opportunity, as was (and is) the case for many visible minorities in North America.

I am not a lawyer, but I study the law enough to have a working definition of "the rule of law" handily memorized. Gerald Frug, a noted Harvard law professor, claims that its primary function is to protect against the 'arbitrary exercise of power'. This may take the form of the usual suspects that come to mind (governments, corporate entities, interest groups, etc.), but what about when that entity is an entire culture? Indeed, Human Rights Commissions have been designed primarily with this latter construct in mind - when 'libel' is so widespread that everyone believes it, the victim of it has nowhere to turn for 'equal treatment before and under the law". Thus, to claim that these laws place a certain group of people 'above the law' completely obscures the unequal positions of various groups in society. It is the dirty secret of liberal societies that claim that everyone is equal, and yet refuse to ensure that this will be the case at the substantive level.

It is also disingenuous to claim that these commissions allow for the politically-motivated manipulation of "free" speech, if one also argues that there is some kind of apolitical set of laws we can enforce, as Ezra Levant claims. That the most ardent defenders of this line of thinking are white, male, and usually so absorbed in their own world view that they are deeply intolerant of alternatives (despite their claims to liberalism) is testimony to the interests that anti-hate speech laws threaten to challenge. Those hardcore believers in the "rule of law" should welcome the introduction of any law that further limits the scope of the arbitrary exercise of power. Instead, they are also the ones who most vociferously oppose it, since it challenges their own personal "enclaves of opportunity".

But one can ask a more simple question: if everyone agrees that racism et. al. are bad things, as all but the most extreme do publicly, then why should they fear laws or commissions that limit the public exercise of this hate speech? No one wants to use these words, or make these arguments, and if these commissions are able to engage with the concept of culture that liberal legal traditions with their bias on the individual are incapable of (or refuse to), then power should actually be exercised less arbitrarily. But in fact, hate speech is constantly being exercised and perpetuated by people all around the world - by members of groups with substantive power against those without it - and therein lies the reason why people like Ezra Levant fear these commissions so much. The cloak of "free" speech is convenient for preserving power relations, since they ensure that oppressive culture can be perpetuated through public discourse. This form of arbitrary power, or its exercise, may not be as easy to conceptualize as the individual, but its effects are equally debilitating for those whom if afflicts.


Now dormant on the Agenda's website, this debate must rage on. I am not against free speech in any way, but since I do believe in society and community (as tangible entities in conjuction with the individual), I also believe that the speaker must weigh just what effect their words will have - both directly and indirectly - more broadly. We all wield power with the words we speak, and we need to think to what ends we want to direct that power. As a member of the academy, I can muster considerable power and authority on some topics when I don my professional credentials. But because of this, I also realize that I have a lot of power to give up to others. As always, this issue, ultimately, must not be a debate about free speech, but a debate over who's values are reflected in public discourse and institutions.

Nothing Like a Good Oxford-Style Debate

The Economist is launching a new gimmick set to start mid-October that asks participants to "take part in a severest contest between intelligence, which presses forward, and an unworthy, timid ignorance obstructing our progress"- a debate, Oxford style.

Besides the obvious cultural bias built-in to the debate structure that favor any aversed in the Oxford Style, the English language, and Anglo-American society, there is a more sinister and clearly deliberate agenda being perpetuated by the Economist in this 'debate'.

The Economist allows web users to 'vote' on the proposition to be debated. This first round is about education, and the 'audience' has five positions to choose from. The phrasing of these propositions uses positive language in favor of the value assumptions of the Economist (namely free markets, competition, deregulation and the marketization of government, to name a few), which is likely to implant the 'correctness' of these positions in people's mind (not that most Economist readers need much convincing). As an example, one proposition states "This house believes that the 'digital divide' is a secondary problem in the educational needs of developing countries" - the authoritative language does not leave much room for debate.

Secondly, team debating has been done away with, and in its place two individuals will square off. What is especially interesting is that the Economist decides who will be debating, chosen from a panel of 'experts', and they will only release these names once the proposition has been chosen. Effectively, and likely, the Economist can mismatch the competition so that the proposition they support comes out on top. The audience is allowed to participate, but only secretively, and comments or questions will be screened by the moderator. These veto points simply turn the debate into a spectacle of capitalist power excercise through the assertion of Economist-friendly values.

In an age where 'full' democracy supposedly reigns, the Economist could open up the discussion to the general public at extremely low-cost. But they insist on staying true to their nineteenth century roots: the advancement of the capitalist project at all costs by continuing to hide behind prejudiced notions of 'intelligence' and 'ignorance'. Almost certainly, those who do not conform to the Economist's format - arguing for or against a proposition using a specific brand of western rationality enveloped in neoclassical economic theory - will be termed 'unworthy'. Pure intellectual theatre may certainly entertain an uncritical middle class, but it is hardly a debate in the real sense of the word.

So, in spite of the history of the Economist and everything it has stood for "journalistically" since its inception to the public discourse, I propose (somewhat laughably) that they use their vast resources to hold a true debate, one not confined to the "spirit of the Oxford" style, which really means controlling the limits of discussion within the narrow realm of 'acceptability'. In a society supposedly promoting 'liberalism', capitalist technocracy continually stands tall as a dominant ideal. If liberalism is truly an ideal, and not just rhetoic, the Economist should open this debate up to anyone and everyone who has an interest in contributing. The problem is, they might not be able to handle the results.