OF CRIMES BY ASSOCIATION WITH CRIMES

 

Definitive of the Millian liberalism to which most of us purport to subscribe is the view that a) all is permitted save what is prohibited, and that b) a necessary, albeit insufficient, condition of some behavior being justifiably prohibited is that it be demonstrably harmful to others.

Not unlike any one of the Ten Commandments, the devil is in the details, and details are what the Decalogue assiduously avoids.

“Thou shalt not kill!”

Anything? Ever?

“Well no. Obviously there has to be exceptions.”

Which are …?

“Well, that’s something you’re going to have to work out amongst yourselves.”

So we shouldn’t kill who and when we’ve decided amongst ourselves that we shouldn’t kill. Is that the divine advice for which Moses spent forty days and forty nights without the conform of his tent?!

God has said some pretty vacuous things, and so, apparently, has Mill. According to the Harm Principle, what counts as harm? Typically but not necessarily tissue damage, But what about symbolic harms, like the subordination of women through their representation in pornography? What about offense, like the words nigger and kike?

And what counts as demonstrability? Is it sufficient, as the Supreme Court of Canada ruled in Butler, that notwithstanding the absence of a preponderance of evidence, the state need only have a reasonable apprehension of harm? And is an apprehension reasonable just in case it’s not unreasonable? If so, what is there that couldn’t be judged not unreasonable? Given that the words nigger and kike are known to be highly provocative, surely it’s not unreasonable to likewise worry that a human sneeze might be misunderstood as the ultimate insult when interpreted by the highly sensitive auditory apparatus of our brothers and sisters on Mars.

All right, let’s take a look at a more real world case in point. Let it be supposed, however fatuous or spurious the arguments for this may be, that

1) using a sleeping infant as a visual masturbatory aid is some kind of harm to that infant.

And let us further suppose, however unsupported this might be by any data, that

2) exposure to child pornography increases the likelihood that one will engage in that purportedly harmful behavior.

And, just to be jurisprudentially rigorous, let us also suppose that

3) the criminalization of such exposure is likely to reduce the incidence of such exposure, and that

4) any right one might have to such exposure is outweighed by the harm cited in (1) above.

 

It follows from (1) through (4) that the criminalization of exposure to child pornography satisfies Mill’s Harm Principle.

But now consider this. As is well known, there are fetishes, some of which we share, some we don’t share but understand, and some we couldn’t share because we don’t even understand them. As it happens I’m not a pedophile, but I understand it. I’m also not into ladies’ shoes and, to be honest, I don’t understand those who are. As it happens I’m an out-of-the-closet vanilla heterosexual. But I don’t condemn people who are sexually aroused by young children or ladies’ shoes, any more than I condemn people who are aroused by adults of the same sex or, like myself, adults of the opposite sex.

Not being a sexologist I neither know nor care whether our sexual orientation is something we’re born with or is socially constructed. For that matter – and again I have to be honest – of all the things I care least about, your sexual orientation, whatever it may be, is pretty much right at the top of the list. Unlike some people, I just don’t find sexual orientation all that interesting.

But what I do find interesting, and what I do care about, is jurisprudential reasoning, and more particularly what jurisprudential reasoning might be involved in parsing the following case:

Suppose that in the same way that some people are into ladies’ shoes, I’m into infants’ clothing. Pictures of naked infants leave me absolutely cold. Pictures of their clothing, with or without them in it … well, there are just no words to describe my excitement! Am I a pedophile? Absolutely not. In fact I don’t even understand it.

Now suppose I’m arrested for exposing myself to child pornography. Notwithstanding I don’t understand pedophilia, I acknowledge that it’s not unreasonable for a judge or a member of a jury to suppose that my fetish for infant clothing is just a variation on what must be my pedophilia. My question is: ought that association be regarded as defeasible in a court of law? And if it is, on whom falls the burden of proof? That is, is it an element of the charge – if so the onus would fall on the Crown – that my viewing of the clothing is a surrogate for the viewing of the infant? Of is the court entitled to assume that inference, and it falls on me to show that in my case that inference is unwarranted?

Have empirical tests been devised to reliably determine what’s arousing me? Apparently there have. Apparently sexual arousal is detectable. So why might the courts be disinclined to allow the results of these tests being placed into evidence? If my response is to the clothing but not the infant, then the harm argument cited above, be it sound or not, doesn’t come into play.

My suspicion is that the Crown would not want to assume the burden of establishing the connection between the fetish and pedophilia, either as a rule of thumb or in my particular case. One reason for this is that the Crown might not want to incur the cost of these tests. And few defendants have the resources to pay for these tests themselves. But in any case I don’t think the court would be inclined to allow the accused to show the disconnect even if on his own dime. And I suspect the reason for this has nothing to do with pedophilia. I suspect it has everything to do with not wanting to allow the precedent of allowing an empirical challenge to inferences upon which many of our criminal offenses hang.

Such as? Well, for one, the inference from either a) anti-Zionism or b) 9/11 Trutherism, or c) Holocuast-denial to d) anti-Semitism, then from d) anti-Semitism to e) so-called hate speech, and then from e) so-called hate speech to f) incitement.

What’s especially telling about these inferences is that a) anti-Zionism and b) 9/11 Trutherism and f) incitement are reasonably well defined. And e) hate speech could be defined as what it would not be unreasonable to worry could lead to f) incitement. But notwithstanding I’m a Jew, I haven’t the faintest idea what would count as either c) Holocaust-denial or d) anti-Semitism. Nevertheless, the inference from a) anti-Zionism or b) 9/11 Trutherism or c) Holocaust-denial to f) incitement is at least as incorrigible as the inference from my infant clothing fetish to my pedophilia.

Here’s a third example. As you’re reading this you’ve inferred that I think the incorrigibility of these inferences is unjust. But did I say anything of the sort? No I did not. And yet critique is almost invariably interpreted as opposition.

Well yes, I am arguing against that inference.

My own positive view, for what little it’s worth, is that these unsound incorrigible inferences are not intended to be subject to such analysis, any more than the concepts of race or God or any number of concepts are intended to be subject to analysis. They’re moves in what Wittgenstein called language games, which are in turn constituents of what he (didn’t but could have) called political discourses, which in turn are constituents of what he called our forms of life.

Some people think they can change a form of life not to their liking by ‘correcting’ some erstwhile incorrigible inference. As a prime example of this, think of the current challenge to the binary of male and female. I wish these social justice warriors God’s speed. But I think there’s a much more direct way by which to protect our right to our fetishes, the practice of historical revision, or whatever.

Instead of challenging one of these inferences, just don’t give it uptake.

Since you really don’t understand the inference you don’t have to pretend you don’t. You need only pretend you don’t understand that others understand it. If this be doubted, think of how this works when you’re on vacation abroad,. You’ve rented a car, you’ve inadvertently cut someone off in traffic, and he’s berating you as he pulls up beside you at the next red light. “I’m sorry, but I don’t understand Italian!” Watch his high dudgeon deflate like a spent erection.

Try it. It works every time. Nothing debilitates like the look of incomprehension.

But that’s not the only payoff. If I don’t understand your reasoning, it’s going to occur to you to wonder why. Perhaps not immediately, but eventually it’s going to dawn on you that maybe, just maybe, it’s because your reasoning is incomprehensible. So you’ll give it a check, only to discover that it really doesn’t make any sense. At which point you have only two options. Either you drop the inference and behave accordingly, or you deny that your judgments need to make sense, at least in the domain in question. Individuals can do that. Courts of law can’t. Or if they do, they cease to be what they were and become something else.

Courts of law deserve our respect. The something else deserves a bullet.

 

CHALLENGE versus RIDICULE

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 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 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.