Wednesday, 15 March 2017
FREE SPEECH v. REGULATED SPEECH
On January 7, 2015 Islamic terrorists massacred eleven cartoonists at the satirical magazine Charlie Hebdo whom they considered “blasphemous”. Subsequently four million people in France marched in support of freedom of expression. Prominent French politicians gave unremitted support for Charlie Hebdo. Despite this many of these same politicians supported the international regulation of social networks in order to crack down on “racist and anti-Semitic propaganda.
Within two days after the four million-plus march in Paris in support of Charlie Hebdo and freedom of expression, 54 people in France had been arrested for "hate speech or other acts insulting religious faiths, or for cheering the men who carried out the attacks." Included in the arrests was a controversial Muslim comic, Dieudonné, who is known for his anti-Semitic views.
Harlem Désir, France’s State Secretary for European Affairs, told reporters “There are hate videos [online], calls for death, propaganda that have not been responded to, and we need to respond. [Those who propagate] terrorism, religious fanaticism, jihadism and radical Islam use the Internet enormously. We must limit the dissemination of these messages.” Désir condemned social networks for failing to take responsibility for “racist or anti-Semitic” content published on their platforms, citing Facebook and Twitter as examples. He said that France wants to create a legal framework that would “place the responsibility on those who are passing the message, even if they are not deciding the message”.
Désir claimed that the proposed law would not target freedom of expression. He said that there has to be a clear distinction between freedom of expression, which is a fundamental right, and the liberty to incite hate, discrimination, and death or in other words hate speech. He compared hate speech to the dissemination ”of child pornography.
The US Ambassador to the United Nations, Samantha Power, described Désir’s plan as an “interesting proposal” that would require consulting both the general public and the private sector. She said “We’re very alert to the extent to which social media platforms are being exploited by violent extremists across the board, including by al Qaeda and Islamic State”.
Earlier in the day, Saudi Arabia's Ambassador to the UN, Abdullah al-Mouallimi, stressed the relationship between Islamophobia and anti-Semitism. “We have witnessed with growing concern the increase in hate crimes around the world, and we are very concerned because some arbitrarily reject their responsibilities in this regard,” al-Mouallimi said on behalf of the 57-nation Organization of Islamic Cooperation. “Anti-Semitism and Islamophobia and all crimes that are based on religious hate are inextricably linked, they’re inseparable.” Another senior Saudi official said that free expression was an 'abuse of religious rights'.
Proponents of speech prohibition argue that hate speech can cause psychological harm, just as hate-motivated violence causes physical harm. Children who are called "nigger", "Paki", or "queer" suffer just as much as when they are physically bullied. For adults, verbal abuse can render workplace, educational or other environments unbearable.' In other words hate speech is not merely speech, but rather is a form of violence. Implicit is the notion that hate speech doesn’t merely CAUSE violence but IS violence.
An American an attorney and counsellor at law in Burtonsville, Maryland, Usa, Regina Njogu defined hate speech “as any expression that maligns, threatens, or insults individuals or groups based on race, colour, religion, national origin, sexual orientation, disability, or other traits.” She made the observation that “Hate speech is not protected under clauses on freedom of speech in constitutions of the civilized world and is prohibited and criminalized in many jurisdictions.” You can have freedom of speech “with the limitation that one must not, in the exercise of this freedom, cause another harm in character or reputation by lying or using misleading words.”
She claims “Many people are not mindful of the danger the pattern of unbridled expansion of freedom of speech without social and legal safeguards portends for social order in the long run. Violent acts of hatred are generally preceded by hate speech.” She further alleges that “Enduring hatred over many years will take a toll on most people. It can limit their opportunities, push them into poverty, isolate them socially, lead to depression or dysfunction, increase the risk of conflict, and endanger their physical health or safety.”
She is also concerned that some people will be corrupted by bad speech. “Although the harmful effects of hate speech may not be immediately apparent, they are cumulative and can influence and indoctrinate the gullible.”
So it all comes down to prohibiting speech deemed to be harmful. “The purveyors of hatred must learn to exercise self- discipline, simple decency, and restraint or the law should come down hard on them. This is because hate speech is personal and a sign of lack of tolerance to diversity. Perhaps it is the result of poor upbringing. The answer to confronting hate speech lies in individual responsibility and behaviour — everyone must share the responsibility of making our society orderly whether by restraint, genuine will and desire, or polished lying.” She concludes “If they cannot restraint their behaviour, the law should force them to do so.”
In his book “The Harm in Hate Speech” Jeremy Waldron, puts forth a theoretical basis for expanded hate speech laws. He wants to prohibit speech when it might cause harm to "dignity". He calls "dignity" "the social standing, the fundamentals of basic reputation that entitle [persons] to be treated as equals in the ordinary operations of society". He says dignity "is a matter of status -- one's status as a member of society in good standing -- and it generates demands for recognition and for treatment in accord with that status" ; it involves, "intrinsic[ally]" the "assurance that one will be dealt with on this basis [as an equal in rights and entitlements]"; it involves what Stephen Darwall famously dubbed "recognition respect"; and "it is a matter of . . . one's status as an ordinary member of society in good standing, entitled to the same liberties, protections, and powers that everyone else has". He summarizes his view by saying that, "Hate speech and group defamation are actions performed in public, with a public orientation, aimed at undermining public goods", that is, the good of assurance of dignity in public.
Fortunately in the U.S. the First Amendment has been an impediment to this type of assault on free speech. Not so in Canada or the U.K. or Australia. In the Anglo countries it is certain people who self identify as human rights activists that probably pose the biggest challenge to free speech. An example is Barbara Hall who was until recently the chief commissioner of the Ontario Human Rights Commission. In a letter to Maclean’s Magazine she wrote “The OHRC is mandated to express what it sees as unfair and harmful comment or conduct that may lead to discrimination. We need to keep in mind that freedom of expression is not the only right in the Charter. There is a full set of rights accorded to all members of our society, including freedom from discrimination. No single right is any more or less important than another. And the enjoyment of one depends on the enjoyment of the other. This means if you want to stand up and defend the right to freedom of expression then you must be willing to do the same for the right to freedom from discrimination.”
She had an ideological ally in Jacques Frémont, who as head of the Quebec Human Rights Commission (QHRC), was a driving force behind Quebec’s infamous Bill 59. Fremont said that he would use the new powers provided to him by Bill 59 to target people who would write against the Islamic religion on a website or on a Facebook page. The law would allow the QHRC to "apply for a court order requiring [alleged hate speech] to cease" and would further impose a fine up to $10,000 if "a person has engaged in or disseminated such speech". The exact monetary value of the fine would be determined by a Human Rights Tribunal.
The legislation treated words as equal to “sticks and stones”. It would have allowed the Commission to apply to a court for "any emergency measure" if the Commission has "reason to believe" that [speech is a] threat to "health or safety" exists. This would allow the Commission to "put an end to the threat."
People like Hall or Fremont supporting expanded human rights legislation have invariably been very generous in defining targeted hate speech. It has been variously said to include speech which offends, insults, demeans, threatens, disrespects, discriminates against, and/or incites hatred or violence against a person or a group of people based on their race, gender, age, ethnicity, color, nationality, religion, sexual orientation or sexual activity, gender identity or gender expression, disability, language, language ability, ideology or opinion, social class, occupation, appearance (height, weight, hair color, etc.), mental capacity, and/or any other comparable distinction.
In fact It is a very short step from protecting religious beliefs from criticism to likewise protecting political beliefs. Many people are deeply offended by having their political beliefs insulted. It may indeed cause them considerable psychological stress - even pain - in some cases substantially more stress or pain than a racial epithet. In fact Bill 59 included “political convictions” in the list of “prohibited grounds” for the purposes of “hate speech”. So not only was it included in the list of prohibited grounds of discrimination in, say, public accommodations or employment. By being thusly being included in prohibited hate speech it meant that the Commission could police speech denigrating people not on the basis of some personal characteristic they were born with, but because of their political opinions. As was pointed out it would be prohibited speech to say or write that Nazism was an abomination because Nazis are "a group of people sharing … political convictions".
Under the guise of prohibiting hate speech human rights initiatives are leading to regulated speech, potentially highly regulated speech.
One final comment about Barbara Hall and Jacques Fremont. These people are not left-wing or right-wing ideologues. They were both card carrying Canadian Liberals. They are middle of the roaders, Centrists, nice respectable people. Yet they and their ilk as much as anybody are helping to grease a slippery slope at the bottom of which there is no longer free speech.
Posted by Juricana at 20:28