What Everyone Has Wrong About Freedom of Speech

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The National Gallery of Canada is but the latest institution to land in the centre of a debate over free speech. This incident involves University of Toronto Professor Jordan Peterson whom the gallery invited to speak on the psychology of creativity, a subject which he has extensively published on. However, in recent months, Peterson has become a cause celebre amongst a certain set of conservative Canadians for his opposition to Bill C-16, which expands hate crime laws in Canada to include gender expression, and more generally to what Peterson says is a stifling climate of political correctness.  Specifically, Peterson posted a series of Youtube videos last year claiming that he would refuse to use people’s preferred gender-neutral pronoun of choice, such as they or ze) and that he considered legislation like Bill C-16 as a restriction on free speech because he would be forced to use certain words under threat of criminal charges and face possible prison time. Even if Bill C-16 did do all that Peterson claims, which it doesn’t, there is no legal mechanism that would allow anyone to send him to Prison for misgendering someone.

Regardless, Peterson’s public statements have rightfully raised concerns among many in the LGBTQ+  community and last week members of said community in Ottawa called on the Gallery to cancel his scheduled talk at the gallery. While supporters of Peterson have argued that canceling the talk is an infringement of his right to free speech,  opponents have replied that there is a limit to free speech and that no-one would consider inviting a noted antisemite to speak at the gallery, even if they also were an expert in their field. For these people, the gallery is supposed to be a safe and inclusive space and inviting Peterson to speak creates an environment that is anything but.

For people who follow the news, such debates probably sound familiar, if milder, than ones happening across North America and Western Europe. Be it the controversy surrounding Milo Yianopolis speaking on college campuses or at CPAC, or the recent violence at Middlebury College over a debate between Dr. Charles Murray and Middlebury Professor Allison Stanger (I’ve written about Murray and his racist views before). Free speech has become a lightening rod for conflict between conservatives and progressives, with the right claiming to champion such values while accusing liberals of shutting down debate. Alternatively, those of the left have argued that no one is entitled to speak from a certain platform and that when speech crosses the line to hate speech it must be silenced, either by the authorities or, failing that, by the people themselves. However, in the course of these debates, both sides massively (and often purposely) misconstrue what free speech is, what reasonable limits are, and why it is so important to modern liberal-democracies. My goal is to demonstrate how I think the principle of free speech should be interpreted and to provide a defence of its value.

The most prominent political theorist who wrote in support of free speech was British thinker and failed politician John Stuart Mill. In his seminal work On Liberty Mill makes a full-throated defence of individual liberty. Drawing on his utilitarian ethical philosophy, Mill argued that individual freedom was a principle, which, when applied to a modern society, would produce the greatest net benefit or utility, Of particular importance was free speech, as Mill argued that without the ability to express one’s beliefs, true freedom of thought/belief was impossible.  Furthermore, he argued that the greatest benefit of freedom of speech was that it allowed the largest possible exchange of ideas and broadened the range of concepts that every individual in society encountered. Only when each person was exposed to the broadest possible set ideas could they successfully choose which ones they wanted to adopt and which ones to reject. Ultimately, the first plank of Mill’s defence of free expression is that society can’t know what will make everyone happy and fulfilled so we should strive to create a society where people have the greatest possible ability to figure it out themselves. An unfettered exchange of ideas helped to fulfill this goal.

More broadly, Mill’s position on the role of the state has massively influenced modern liberalism. Fundamentally, Mill rejects the idea that any institution, be it the state, the church or the academy, has a monopoly on truth. Since no one can know what is the best way for each individual to live, in order to promote the greatest utility, people should have the greatest possible freedom to discern the truth themselves. This position is the basis of modern liberals’ defence of freedom and helps to explain why philosophical liberals have supported LGBTQ+ rights in recent years. Much as with religion, speech and substance use, institutions such as the state cannot and should not enforce gender or sexual norms, but instead individuals should be allowed to live in whatever manner they see fit.

In Mill’s ideal world, the only limits on freedom should be if  an action is the direct cause of harm to someone else. While apocryphal, the quote “your freedom to swing your fist ends where my face begins” best sums up this idea. In relation to speech, Mill argues that only speech which directly harms others should be banned, in his words, “you don’t have the freedom to yell ‘fire’ in a crowded theater.” Similarly, while one should be at liberty to tell a crowd that bankers are the reason why they can’t feed their children, the same person should not be permitted to make such statements in front of an angry mob outside a banker’s home. By creating a high barrier for justifying restrictions on speech, Mill’s philosophy leaves substantial room for people to express all sorts of odious opinions on matters of race, sexuality, religion and gender.

Despite Mill’s expansive vision of individual freedom of speech, liberal-democratic governments have traditionally had more specific protections relating to speech. While both the American and Canadian Constitutions contain clauses protecting free expression (In the Bill of Rights and the Charter of Rights and Freedoms respectively), these protections only ensure that the state will not restrict one’s right to speech, it does not govern interactions between private citizens, businesses, and other non-governmental entities. Hence when supporters of Milo raged against Twitter for deleting his account and cried that it was a violation of his freedom of speech, legally they were totally wrong. Twitter can ban whoever they want, just as Facebook or Snapchat can. While the government can’t stop you from expressing repugnant opinions, no company is required to give you a platform to spread your bile. Just as a newspaper does not have to publish your opinion piece, a social media site does not have to allow you access. XKCD best summarized this idea a few years ago:

Free Speech

Similarly, in December of 2016 when the Mayfair Theater in Ottawa canceled the showing of the documentary The Red Pill, they were totally within their rights. As a private business, they can choose to show whatever movie they want. Freedom of speech also means that the state cannot compel any person or group to express or support certain ideas. Thus when we look at the dispute over whether Shopify should continue to provide e-commerce services to Breitbart News and their CEO’s defence that providing these services is protecting freedom of speech through this lense. When we do it is clear that he is completely off-base. Freedom of speech has nothing to do with Shopify’s business decisions. They can choose to have Breitbart as a customer or not, just as other people can choose whether or not to patronize Shopify for whatever reason they so choose, be it aesthetics, politics or morality.

So far so clear. Many of the complaints from those on the far right that they have had their freedom unjustly restricted is simply a case of their views being unpopular and other people or businesses freely choosing not to associate themselves with them. Instead of a restriction on expression, we should view these events as exercises of freedom. Similarly, a popular tactic used mostly, but not exclusively, by the hard right has been to complain that their ideological opponents silence dissent by labeling them as racist/sexist/homophobic/transphobic/bigotted. This tactic was most recently demonstrated by Alberta politician and Deputy Leader of the Wildrose Party Derek Fildebrandt who defined racist as:

When criticized, Fildebrandt doubled down on his position, stating that he “refused to play by the rules of those who seek to shut down debate by dropping isms.” Of course, the flaw in this line of argumentation is obvious.  Freedom of speech works both ways, while Fildebrandt and others are free to say whatever they want, their critics are also free to respond however they like.Having something said about you that you don’t like is not a restriction on your freedom, as you are at complete liberty to respond and prove your opponent’s claim wrong. Similarly, others can observe these exchanges and draw their own conclusions. Ultimately, if more people agree with your critics than you, that isn’t a restriction on his freedom, that is actually losing an argument. Thus, when many opponents of political correctness argue that it restricts their freedom, what they really mean is that they want complete freedom to say whatever they want without anyone responding. What they are in fact calling for is a restriction on the speech of their ideological opponents.

Furthermore, conservatives are often selective in their outrage regarding limits on free expression. As the world saw last month with Milo Yianopolis being invited then uninvited to speak at CPAC, there is a limit to what ideas many on the right are willing to accept. While Milo’s statements on pedophilia and pederasty are truly revolting, he did not break any laws saying what he did. He simply advanced opinions which are terrible and unpopular but importantly, not illegal. In theory, this type of expression should be the sort of speech that free speech advocates rally to defend. However, the same people who were willing to defend Milo when he said atrocious things about the LGBTQ+ community, Muslims, undocumented immigrants, and women immediately condemned him when he made statements they found offensive or disturbing. Such a rapid reversal suggests that many conservatives commitment to free speech was only a superficial gloss designed to defend propagating offensive opinions they agreed with but did not want to state publically.

Similarly, in Canada, the majority of Conservative Party MPs have refused to support motion M-103 which condemns Islamophobia and calls on the House of Common’s Heritage Committee to investigate and issue a report suggesting ways the government can reduce it. Party Leadership candidates such as Chris Alexander, Maxime Bernier and Kelly Leitch have all argued that this motion is a restriction on free speech and could be the first step towards introducing blasphemy laws in Canada. However, only last year these same MPs were willing to vote in favour of a motion condemning the Boycott, Divest and Sanction (BDS) Israel Movement.  One suspects that the reasoning behind such a choice is simple, these politicians are supporters of Israel but are willing to cater to and encourage the Islamophobic opinions of their constituents in order to garner support in a tightly fought leadership race. Free speech is yet again used as a veil to hide behind while passively supporting xenophobia.

Thus when many opponents of political correctness argue that it restricts their freedom, what they really mean is that they want complete freedom to express their ideas without anyone challenging their position. What they are in fact calling for is a restriction on speech for, in a truly neutral marketplace of ideas, their’s are rejected by the majority. However, while many on the right frequently cry wolf when it comes to university campuses, conservatives are increasingly right that the principle of freedom of expression is under threat, both in Canada and the United States. The legal status of universities serves to complicate matters for in Canada the Charter of Rights and Freedoms does not apply to universities but does apply to colleges which are directly managed by provincial governments. However, in the United States, the 1st Amendment of the US Constitution does apply to public universities, i.e. UC Berkley or The University of Maine, but not private schools such as Yale and Harvard, even though they receive public money. Regardless of the specific legal status of universities, one of the expressed purposes of higher education, especially in the liberal arts, is to foster the free exchange of ideas and to expose students to as wide a variety of opinions as possible. In many ways, the philosophical ideal of the university is reflective of Mill’s ideal free society.  Hence it is worthwhile to use this standard to judge the state of free expression on North American campuses.

I’ve previously written about the limitations to speech on campuses across North America and highlighted the threat that money and entrenched interests of alumni donors poses to a free exchange of ideas. These threats are still very real but increasingly, conservative arguments that left-wing activists on campus are stifling open dialogue ring true. One of the means of doing so is denying accreditation to student organizations that hold unpopular positions, namely anti-abortion clubs. The Carleton University Student’s Association (CUSA) was one of the first Canadian student associations to do so when they passed a motion in December of 2007.  I was involved in fighting this motion (and got myself quoted on CBC) because I saw it as a restriction on freedom of speech. While the motion was contentious in 2007, it has since become almost de facto policy at universities across Canada. Furthermore, groups that do organize events promoting their views are often forced to pay large security fees and jump through bureaucratic hoops that other student groups don’t have to.  While these obstacles are often not very effective at silencing anti-abortion voices, as student unions have limited power and anti-abortion groups often have substantial support from outside the academy, the intent is clearly to silence opinions the student union disagrees with. That was the main point I made ten years ago at the CUSA Council meeting and it still rings true today.

Alternatively, when student groups are unable to use procedural methods to limit dissenting opinions, they increasingly turn to public protest and violence. Recent examples include riots at Berkley in response to a proposed speech by Milo, possible use of pepper spray against Vice co-founder Gavin McInnis when he spoke at NYU and the incident at Middlebury which I linked to earlier.  While the speaking events at NYU and Middlebury went ahead, the riots at Berkely were enough to force the cancellation of the event. Now while all three men express opinions which are deeply distasteful and offensive to any reasonable human, they do represent the views of some students on campus, students who form an intellectual minority. To suggest that a minority on campus cannot present their views because the majority disagrees with them is clearly a violation of the basic precepts of freedom of speech.

The point of protecting free expression is to protect unpopular opinions held by minorities, no matter how obnoxious they are. Furthermore, when the majority gets to decide what ideas are acceptable based on mass acceptance, that sets a dangerous precedent. While all reasonable people can agree that appearing in blackface is terrible (I see you Gavin McInnis) policing of speech can easily extend to more mainstream ideas which while unpopular on campus, are legitimate political opinions. Sound like a ridiculous slippery slope argument? Just look at the previous example about anti-abortion student organizations. While I certainly think that opposing abortion is sexist, supporting restricting abortion access is a legitimate political opinion that many reasonable people hold.

Often people who want to prevent certain speakers from appearing on campus indirectly invoke Mill’s standard for when speech should be banned. As we have seen, Mill argues that speech which leads to physical arm should be limited. Thus many activists, while not citing Mill, state that the ideas of certain speakers are so dangerous that they constitute outright hate speech or an incitement to violence against certain vulnerable groups. The problem with this line of argumentation is twofold. First is that while repugnant, many of these speakers are not propagating hate speech. In the US this objection holds no legal force as hate speech is protected under the 1st Amendment. Even in Canada, hate speech laws are remarkably specific, outlawing “any writing, sign or visible representation that advocates or promotes genocide…” Admittedly, advocating or promoting genocide is a remarkably high standard to prove. Furthermore, even if charged under Section 318 of the Canadian Criminal Code:

An accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Thus, while much of what many campus speakers may say is certainly hateful, it isn’t Hate Speech.

The second problem is that Mill has a very high standard for when speech can be banned. Particularly, there needs to be a clear and identifiable link between a certain speech act and a specific harm. The problem is that such direct links are extremely difficult to establish. So instead people will argue that certain statements create a culture that enables or emboldens others to act, but such a link is indirect at best.

The result is that some left-wing activists will draw on the idea of rhetorical violence or bdelygmia to argue that even without a clear link between specific speech acts and physical violence, the speech act itself is inherently violent. Such an argument has been used as justification for everything from canceling Kate Smurthwaite’s comedy show at Goldsmith College in the UK  to the riots at Berkely. The problem is that speech isn’t actually violence. Certain ideas can most assuredly make people feel uncomfortable or worse, but words do not do physical harm. If a clear link can be established between words and violence then there is legal grounds to act. Activists attempt to blur the lines between the verbal and the physical because such a link can’t be clearly established. To suggest rhetoric can be literally violent is simply false and does a disservice to people who were actual victims of violence.

While it is understandably tempting to exploit progressive dominance of the academy to silence offensive ideas, much as many progressive positions were repressed for decades. However, this is a dangerous temptation to indulge in. The real litmus test for one’s support for freedom of expression is whether you are willing to allow ideas that you not only disagree with but find deeply offensive and flawed. Increasingly it seems that many on the left are failing this test, in the same manner, that the right failed it for decades. What many progressives need to remember is that only a few short decades ago, it was illegal to speak or write publically about something as basic as birth control. During the 1960s The Canadian government, for example, used obscenity laws to charge the editors of student newspapers like The McGill Daily for telling female students how they could access and use basic birth control.  There is no guarantee that the status quo regarding the acceptability of certain types of public expression remains as it is in 2017. Hence it is so incredibly important to defend the free expression of all ideas at all times, to hopefully ensure that when your ideas are unpopular you can still freely advocate for them.

 

 

 

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