Much as I’d sometimes like to be, I’m not a knee-jerk civil libertarian. I understand that the maintenance – and before that the promotion – of a civil society sometimes requires limits to freedom of movement, of association, of expression, even of thought. But I want to see if I can draw some lines here, beyond which state interference with some of these freedoms undermines rather than protects the kind of society we want.
I could include in this analysis interference authored by agents other than the state, for example an LGBT group shouting down a homophobic speaker. But I’m going to leave that kind of thing outside my analysis, not because being shouted down can’t sometimes be even more silencing than governmental censorship, but because the most one can do is entreat these viglante would-be censors to let the man have his say. That is, one can hardly protect freedom of speech by violating the freedom to protest what’s being spoken.
What we can try to do, of course, is make attendance at certain events conditional upon respect for certain protocols, as we do, for example, in a university classroom. “If you’re not going to allow the speaker to speak,” we might say, “you won’t be allowed in the door. And if you flout these conditions you’ll be forcibly removed from the hall.” But this hasn’t proven all that effective, has it? Protesters see to it that the commotion of their removal does as much to silence the speaker as would just letting them shout him down.
We certainly don’t want speakers preaching only to the converted. We want to be proselytized to. We just have no practical way – neither in the town square nor in church – to silence those who would silence the preacher. So as I say, the best we can do is entreat. We’ll listen respectfully to what you have to say if but only if, mutatis mutandis, you do likewise.
So that said – and that’s really all that can be said about this kind of vigilante censorship – let me start with the actual case that’s set me on this exercise.
* * *
Down the hall and around two corners, I have a colleague named Tony Hall, who’s publicly and insistently conjectured that 9/11 – and pretty much every terrorist attack since – has been the false flag operation of the Israeli government, and/or of Israel’s not-so-rogue neocon allies within the American government. I say ‘conjectured’ because even he admits he doesn’t have the smoking gun. He’s just – how shall I put this? – a tad more latitudinarian in his inferencing than most pundits would allow themselves. So needless to say Tony bears the brunt of a lot of eye-rolling, a goodly share of it, I confess, from me.
Actually I should have said I had a colleague down the hall, because on October 4th of last year, the President of the University of Lethbridge, one Mike Mahon – in a lame attempt to I know not what, but I’m guessing it was to protect the University from the embarrassment of Tony’s online idiocies – took it upon himself to suspend Tony from any and all of his duties and privileges.
Of course in so doing Mahon has incurred far more embarrassment for the University, his action having attracted the censure of pretty much every academic in the country. At the end of the day heads will roll, and one of them won’t be Tony’s.
Now then, I’m not asking whether Mahon thought he was within his rights – perhaps even duty bound – to do what he did. Nor whether he was within his legal rights, as defined by the collective agreement between the University and the Faculty Association. That issue will eventually be resolved in court. And, in the highly unlikely event the court sides with Mahon – which it won’t – it’ll be resolved by the political action of members of faculty, myself included, who’ll take whatever measures necessary to put an end to Mahon’s presidency. Rather I’m asking the philosophical question of whether the likes of Tony Hall should be silenced for the likes of what he’s publicly and insistently conjectured.
The obvious answer is no. And in this case the obvious answer is the right one. Tony is an historian. Not a very good one, perhaps, but an historian nonetheless. It’s his job to challenge the received view of history. Not only in so doing is he protected by his role as an academic, but he’s protected as well by the Supreme Court of Canada’s ruling in Zundel (1992), which was that what was then s. 181 of the Criminal Code pertaining to the spreading of false information, was unconstitutional. It was ruled unconstitutional for a number of reasons, not the least of which being that the Court did not consider itself – and so a fortiori not any inferior court – competent to pronounce on matters of historicity.
The court could have – and in fact some courts have – taken (what’s called) ‘judicial notice’ of some fact or other, historical or otherwise. But the taking of judicial notice – at least under British common law – does not preclude a defendant from challenging that notice. In other jurisdictions – the ones you and I rightly condemn – such a challenge is itself a criminal offense. But I’m assuming – I know, assuming makes an ‘ass’ of ‘u’ and ‘me’ – that we don’t want to join those jurisdictions.
By contrast, in Keegstra (1990), the same court ruled that s. 319 of the Criminal Code pertaining to the incitement of hatred, is constitutional. The distinction, then, is between
1) challenging some received fact –
which you and I agree is to be if not encouraged then at least tolerated – and
2) incitement to physical harm, or even, in some cases, mere deprecation –
which we think is actionable, provided such action isn’t overridden by its invasiveness.
But this is where things get tricky. Prohibition against physical harm is clearly among the conditions sine qua non of any civil society. And so since, as Thomas Hobbes observed, “a man’s actions proceedeth from his opinions.” – well duh, why else would one bother to have opinions?! – incitement to physical harm is actionable as well.
Well sure, provided such incitement has a demonstrable track record for inducing such harm. For example, I’ve joked with my students that we should kill all Scots, my argument being, “Rolled oats in sheep gut? Gee, doesn’t that sound yummy?!” But this is not incitement. Neither is telling them that all Mexicans are rapists, because it’s clear I’m just making mock of Donald Trump. But telling some people in this town, even if only tongue in cheek, that we should’ve exterminated the Blackfoot rather than signed treaties with them, could have consequences both reasonably foreseeable and serious. Fortunately prosecutors understand the role of context, and if they don’t judges do. So in Canada at least, political correctness has yet to put the kibosh on humour, as it’s done in some more ‘enlightened’ jurisdictions.
* * *
But deprecation is a trickier matter. It’s true that we live in a symbolic universe. Names can hurt me, in some cases far worse than sticks and stones. As the Court ruled in Butler (1992), upholding s. 163 of the Criminal Code pertaining to the purveying of pornography, there need be no preponderance of evidence that pornography increases the likelihood of sexual assault. It’s sufficient that it undermines the perception of women’s equality. By parity of reasoning, then, under s. 319 a court needn’t find that anti-Semitism threatens a Jew’s physical safety. (After all, that would require there’d been a history of convictions for racially motivated assault where that racism was incited by the activities of people like the accused currently in the dock.) Rather the court need only find that the racial incitement in question undermines the perception of Jews as citizens in as good standing as anyone else.
Fair enough. But the law against incitement to deprecation has a prima facie strange logic to it. Nothing in the criminal code stops me from deprecating you for being you. “That So-and-So, she’s such a bitch!” Not actionable. Nor does it stop me from inciting others to deprecate you for being you. “Don’t hang out with that bitch!” Not actionable. Nor does it stop me from deprecating you because of your race. “Those damn niggers, always suckling from the public tit!” Not actionable. It only stops me from inciting others to deprecate you because of your race. And this might seem odd. If it’s illegal to incite deprecating you because of your race – because, presumably, it undermines the perception of your equal standing – why isn’t it illegal just to deprecate you because of your race?
The answer is as simple as it is instructive. It’s simply too invasive to criminalize my privately deprecating you because you’re a ‘bitch’, or because you’re a ‘nigger’. But because incitement is, by definition, a public act, a) it’s more likely to be a multiplier of harm, and b) it can more readily and less invasively be monitored.
Are these defensible considerata? Of course they are. But the trickiness remains. For surely we don’t want to say – and in fact we don’t say – that every group is to be protected from being publicly deprecated. After all, some groups, like the Westboro Baptist Church, deserve to be. And the public deprecation of others, like the KKK or the Neo-Nazis, might actually be needed for the maintenance of the kind of civil society we want.
It goes without saying that we can with impunity publicly deprecate those who cannot publicly deprecate with impunity. Otherwise no judge could wag a finger at the Neo-Nazi or KKK member she’d just convicted of a hate crime. And it would seem too, then, that we can publicly deprecate with impunity those who themselves publicly deprecate with impunity, like the ‘fag-hating’ Westboro Baptist Church. And because we fag-lovers can with impunity publicly deprecate them, they can likewise with impunity publicly deprecate not just ‘fags’ but also us.
And this strikes us as only fair, notwithstanding that in publicly deprecating them, we clearly intend to undermine their standing as equals in the community. So, it would seem that, as in Orwell’s Animal Farm, all animals are equal but some animals are more equal than others. You can’t with impunity publicly deprecate me for being Jewish, but with impunity I can – and regularly do – publicly deprecate you for your Christian fundamentalism.
Is there some principle that can ground this asymmetry? Or is it simply the product of history and clout?
Needless to say, I’d like to say the former. And I’m certainly going to give it a try. But at the end of the day this might turn out to be one of those don’t-ask-don’t-tell kind of questions. Let’s see.
* * *
If the asymmetry lies anywhere, surely it lies in the distinction between challenge and ridicule, or rather ridicule as instrumental to challenge and ridicule as an end in itself. If you want to challenge my Judaism, you might to that end, and rightly so, ridicule it. Even God knows it’s a ridiculous religion! But mocking to no purpose other than ridicule the (even more clearly ridiculous) way some Orthodox Jews dress and comport themselves, is another matter entirely. Likewise, then, to point to the unsustainability of Christian biblical literalism is precisely what I do and should do in my Phil of Religion classes. But telling Christ-on-the-Cross jokes – some of which, c’mon, admit it, really are hilarious – I only do in private.
Likewise only in private do I tell Holocaust jokes. But Amy Shumer told one on stage. Does the fact that she’s Jewish mean that she’s allowed? If so, then so would I be.
But jokes told by Jews about Jews, or blacks about blacks, don’t challenge anything. They certainly don’t challenge stereotypes. In fact they depend on them. So why are they allowed, indeed welcomed? Because they’re designed to endear ourselves to ourselves and others. And that’s precisely why they work. But the same joke told by a Gentile or a white has a very different meaning.
The question, then, is whether we can take our understanding of racial self-mockery and import it into our jurisprudence. And the answer seems to be that we can. A white man asking “Why can’t these inner city blacks speak English?!” falls short of inciting hatred of blacks, but asking “Why don’t they get a job?” or “Why don’t black men take care of their own children?” is getting close. For the issue, remember, is not incitement to physical violence, like “We just need to kill all them niggers!” It’s whether such publicly posed rhetorical questions deprecate black men. And arguably they do.
Similarly, then, asking “Why don’t those Hasidic Jews snip those ridiculous ringlets?” – they’re called ‘payot’, by the way – is not a challenge to the Orthodox interpretation of Leviticus 19:27. Most people who ask this question have never read Leviticus. Nor, for that matter, any of the Hebrew Bible. In fact it’s not a question at all. It’s a remark. And that remark is not that Hasidic Jews are ridiculous. (They are, by the way, but that’s not what’s being said.) The way my dog sometimes sleeps on her back is ridiculous. Payot are not. My dog’s posture symbolizes nothing. Payot symbolize a rejection of the Gentile aesthetic, and so by implication everything else Gentile. They are a “Fuck you!” to everyone who’s not of the tribe. They may not be intended that way. But every Hasidic knows perfectly well that’s how it’s taken. So if Hasidim can with impunity publicly hate Gentiles – and they do! – why can’t Gentiles with impunity publicly hate Hasidim? Well, they do too. And we allow it.
So, it would seem, gratuitous ridicule is not the marker we’re looking for in determining actionability. We need something else.
* * *
One question we might ask is whether there might be something doctrinal to a religion – or other ideology – that entitles us to our hatred of it. So, for example, Hasidic Jews are not going to go to war to defend their host country from its enemies. So we can with impunity hate, and advocate hate, against any group that rejects our civic values. And this, presumably, would include immigrants who would have themselves and us governed by Sharia law.
Note that we’re not challenging their fidelity to Sharia law, so it’s not our being critical of it. And yet hatred of Moslems for wanting to be thus governed is likewise non-actionable. So, as it turns out, contrary to my original conjecture, we needn’t appeal to the notion of challenge to immunize ourselves from a charge of hate speech.
In fact my suspicion is that asking what we need to appeal to for such immunity is asking the wrong question. Rather we should be asking what the government needs to appeal to to withdraw that immunity from us. And the answer, I suspect, is the one proffered by Hobbes in support of his Sixth Power of the Sovereign. To explain:
From the most conservative to the most liberal, all philosophers of law are of a mind that all is permitted save what is prohibited. There’s a very simple reason for this. There isn’t enough ink the universe, let alone on the planet, to write down all the things we can do. Moreover, from the most conservative to the most liberal, all philosophers of law are of a mind that the state must have a reason to prohibit the behaviour it prohibits. Where they differ is over what can count as such a reason. John Stuart Mill thinks the state should only interfere to prevent harm to others. John Locke thinks it should confine itself to enforcing the natural law. And Thomas Hobbes thinks it’s whatever it takes to maintain the peace. That Mill and Locke are wrong and Hobbes is right I take to be a duh. So I’m entitled to move on to …
But if, as Hobbes thinks, the question is what’s likely to keep the peace and what’s likely to disrupt it, then we needn’t appeal to any ‘principles’ whatsoever. It’s a purely empirical question, and as such it could vary from place to place and from time to time. For example, I don’t challenge haggis, I ridicule it. But we could imagine circumstances – could we not? – under which such ridicule would constitute actionable deprecation. Imagine that Scotland secedes from England, as well it might, over Brexit. A bloody war ensues. A highly fragile peace agreement is reached. Then my comments about haggis might not be so funny any more.
If this is right – and I think it is – then the question we have to ask is not whether Tony Hall’s saddling the Israelis with all these attacks is likely to cause hared of Jews. I’m a very hateful person. I hate all kinds of people. But I’m not going to go to war against any of them. Nor am I even going to publicly deprecate them. I’m just going to silently seethe. No harm in that. And, say all three of Mill and Locke and Hobbes, no harm no foul.
So rather the question has to be whether saddling the Israelis with all these attacks is likely to cause either physical harm to Jews-qua-Jews, or at least deprecation of Jews-qua-Jews, as distinct from physical harm and/or deprecation of those putatively involved in these attacks. But surely those who are involved, assuming they are, should be punished, or at the very least deprecated. So the charge against Hall has got to be either that a) these people are being falsely accused by him, and therefore unjustly exposed to violence or deprecation, or else b) whether falsely accused or not, his accusations are exposing them to vigilante justice or deprecation.
But neither of these charges against Hall makes any sense. No one could be charged with 9/11 without first being suspected of it. And the police hold no monopoly on suspicion. Nor on publicizing their suspicions. And besides, who exactly is being exposed to violence or deprecation by Hall publicizing his suspicions? Presumably the government of Israel. But surely every government on the planet exposes itself to violence or deprecation. That just goes with the territory of being a government.
Of course every government on the planet makes it a criminal offence to commit violence and/or incite violence against it. It would be an odd government indeed that didn’t. But so far as I know, Hall hasn’t advocated violence against the Israeli government. And even if he had, advocating violence against the Israeli government is not an offense here in Canada. In some countries, by the way – North Korea, China, Turkey, to name just a few – it’s also a criminal offense to deprecate the government. But I don’t think we’d want to express our solidarity with these regimes by going after Hall on their behalf for deprecating them.
So when all is said and done, it strikes me that the case against Hall is dead in the water. It’s dead in the water not because s. 319 of the Criminal Code, Canada’s hate speech law, is incoherent. It’s dead in the water because Hall hasn’t contravened it and, given his particular beef, which is political rather than racial, he couldn’t contravene it if he tried.