Barrel Strength

I have maintained that the hostility shown by Human Rights Commissions towards Steyn and Levant comes from lawyers, some of whom drink deeply from poisoned wells on their passage through three years of law school.

The message being conveyed to the students who take courses from certain professors is that free speech is an American concept, which they are wrongfully exporting to Canada and other places through the usual instruments of cultural imperialism. Mr. Stacey of the federal branch of our human rights commissions was typical in his view that free speech was an “American doctrine”.

I cite as an example the essay found in (2003) 49 McGill Law Journal 59 by Professor Jane Bailey, “Private Regulation and Public Policy: Toward effective restriction of Internet hate Propaganda” as a pertinent example of the creeping abrogation of free speech in the name of “multiculturalism”, and “equality” that were enshrined in Trudeau’s 1982 Constitution. I argue that the consequences of that Constitution are being witnessed now in the prosecution of Steyn and Levant.

Any departure from the strictest standard of free speech, saving only treason, libel, incitements to immediate violence, fraud and a few other cases, lead in the current political environment to the authorization of the petty Inquisitions whose operations Ezra Levant is ridiculing daily. I say this result derives from the combination of judicial activism, an excessive and quite Canadian reliance on the state to police social relations, and insufficient attention to the consequences of importing international treaty commitments for our domestic political culture.

You need not accept that this outcome was the inevitable result of the wording of our Constitution, and indeed that would be a broader argument than I really want to make. Given greater doubt as to their own wisdom, and greater skepticism about bureaucracy in general, the Supreme Court might have decided certain cases differently. As well, the Constitution might have expressed itself more strongly on the importance of free speech to political deliberations and citizen participation.

Yet when we read the articles of law professors, we are able to see where the Human Rights Inquisitors get their legal and policy inspiration – a closed world of policy wonks, working nationally and internationally for decades, out of the public eye, whose political assumptions cannot withstand vigorous public scrutiny. When they invoke treaties, it is their tribe which has created them. When they invoke the courts, it is excessively staffed with activists of their persuasion (thank you Liberal governments). When they invoke the law, they invoke the laws created in their opinion environment. Unfortunately for Steyn and Levant, the Inquisition, having run short of pimple faced Nazis in their parents’ basements, has turned its collective attention to conservatives.

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Let us start with the Constitution Act, which says:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

The freedom of expression is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Section 1)

You will find, however, the following:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

You will find this clause too, but it is largely ignored, since it merely confirmed our previous, unlisted, freedoms:

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

From these grand constitutional principles, how did we ever reach the point where the blind Mr. Stacey, Inquisitor of hate speech at the Human Rights Commission, could say that freedom of speech was an “American value” to which he paid no attention? The essay by Professor Bailey provides a measure of explanation. Other law articles of this persuasion could be found, but this one was at hand. A blog is not a place for a thesis on the topic, but it surely deserves one.

She writes: “The [US] First Amendment challenge to restricting hate propaganda emanating from within the US suggests that technology has overtaken public regulation at both the national and international levels” (p63)

She cites a CNET news article to the effect that there were 4000 racist websites in the United States in 2001. By comparison, it was calculated that there were 31,200,000 web pages in October of 2001, and as of 2008 there were 156 million, including all blogs. Indeed there are probably orders of magnitude more webpages, as documented in Albert-Laszlo Barabasi’s major work on the mathematics of networks, Linked. Google recorded 1 billion documents on the Web in 2001. Let us accept for the sake of discussion that in 2001, some 0.0001282 of the world wide web consisted of American-originated racist websites (.012%, or 4000 out of 31.2 million websites)

Section 13 of the Canadian Human Rights Act was amended by federal anti-terrorist legislation so as specifically to mention that its provisions apply to computer and Internet communications. The Canadian Human Rights Tribunal had already decided this for itself previously in the Zundel case. The federal government confirmed the tribunal’s decision by legislation.

The Supreme Court of Canada had already declared that federal legislation against hate speech, in section 319(2) of the Criminal Code and section 13 of the Human Rights Act, constituted justifiable limits on free expression. The cases cited are Keegstra and Taylor.

By contrast, the legal test under the United States’ First Amendment is stricter. The words impugned must satisfy one of the following criteria:

• Be of slight social value, or

• Be fighting words, or create a clear and present danger of imminent violence, or

• Satisfy a compelling state interest.

The test is whether the hate propaganda in question is likely to lead to immediate action without the opportunity to avoid harm through response and discussion.

To quote the Supreme Court in Keegstra,

“The International commitment [Canada has made] to eradicate hate propaganda and, most importantly, the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression.”

Thus, Canada’s adoption of treaties against hate propaganda, and the wording of our Constitution, has been argued, successfully, to the effect that state suppression of certain kinds of speech may not “always and unremittingly detract from values central to freedom of expression” (per Dickson, Chief Justice of Canada in Keegstra)

The purpose of Professor Bailey’s article was to examine various mechanisms available in the private sector, such as filtering, acceptable use policies and zoning, for their effects on controlling hate propaganda. She makes some important observations about the objectives of the hate crimes provisions, in both Criminal Code and Human Rights Act.

“Canadian restrictions on hate propaganda are not aimed solely at ensuring that individual listeners are not offended or directly harmed. They also focus on reducing or eliminating the risk of harm to the broader societal goals of equality and multiculturalism posed by widespread adoption of hate propaganda’s message.” (p83)

Again, after a consideration of these technical and private-sector approaches for the control of what one can watch or read, she reminds her readers that

“this approach completely misses one of the fundamental commitments underlying Canadian restrictions and international provisions relating to hate propaganda: the broader risk to equality and multiculturalism associated with the adoption of discriminatory attitudes by those not offended be hateful messages. (p95)

Thus, even if you are not offended by the content, the constitutional goals of “equality” and “multiculturalism” might be threatened if you had the opportunity to read it

There are many hidden assumptions here:

a) that the words “hate propaganda”, and particularly “equality” and “multiculturalism”, have meanings on which courts could agree,

b) that the nature of the “risk” is determinable, and its incidence measurable,

c) that the “risk” is something against which we can protect ourselves by constitutional means, and

d) having regard for other constitutionally protected values, the “risk” of hate propaganda is of more pressing concern than the protection of these other values, if there is a conflict, and, finally

e) that nine appointees of the Prime Minister, called the Supreme Court of Canada, are the appropriate group to make these decisions.

It is interesting to observe how many of the major premises of the law professor’s argument are buried in her assumptions, particularly that the words she uses have intelligible meanings not dependent on political caprice, and more importantly, that the courts would agree with her interpretations of those meanings.

A competent philosopher would probably find even more assumptions buried in the argument she presents. One of the principal faults of the intellectual atmosphere in universities these days is the “sensitivity” one is supposed to show to all positions. In fact, a larger degree of contestation of nonsense is required, in which female, gay, third-world, ethnic and leftist positions have to defend themselves with greater acuity than they do now.

This is the environment in which Professor Bailey has achieved her law professorship. It is the same environment in which the Mark Steyn and Ezra Levant’s persecutors, the Islamic sock-puppets, have received their legal education.

Let Professor Bailey speak for herself; she is more persuasive than I as to the menace her views represent.

“The export of the current US approach to hate propaganda threatens essential public policy reflected in Canada’s democratically enacted and constitutionally sanctioned restrictions on this “de-liberating” exercise of private power. The thinner conception of liberty as freedom from government restriction underlying the US approach fails to take sufficient account of the de-liberating impact of hate propaganda on target group members and broader public concerns for equality and multiculturalism, which are entrenched in Canadian constitutional commitments….

“Achieving the goals of equality and multiculturalism, and the mutual respect for diversity essential to them, should not be primarily entrusted to largely unscrutinized choices made by individuals in private settings or be foist on target group members by expecting them to adopt technological means of avoidance.” (p102)

And what, pray tell, is the obvious alternative to “primarily entrusting largely unscrutinized choices made by individuals in private settings”?

I think this experiment in scrutinizing private choices has been run in divers times and places, including everywhere on earth before the Enlightenment. The history of western liberal democracy has been our progressive escape from religious and statist solutions towards entrusting the “unscrutinized choices of individuals in private settings”. Why should we have less choice in the political views to which we are exposed and may express than in sexual relations, Professor Bailey?