FREE SPEECH VS. 'HATE SPEECH'
by
DAVID SOLWAY
______________________________
David
Solway is a Canadian poet and essayist (Random Walks)
and author of The Big Lie: On Terror, Antisemitism, and
Identity and Hear, O Israel! (Mantua Books). His
editorials appear regularly in PJ
Media. His monograph, Global Warning: The Trials of
an Unsettled Science (Freedom Press Canada) was launched
at the National Archives in Ottawa in September, 2012. His debut
album, Blood
Guitar, is now available, as is his latest
book, Reflections
on Music, Poetry and Politics.
I recently
attended a symposium, held at the University of Toronto and
sponsored by a group of politically savvy libertarian and conservative
students, on the topic of free speech and expression in the
current repressive cultural and political milieu. The audience
of almost every other conservative symposium I have attended
has been composed chiefly of elderly white men, with a modest
sprinkling of women and a sparse handful of younger people.
On this occasion I was gladdened to note that the age gap had
been bridged, dividing equally between older and younger, while
the distaff representation was comparatively prominent.
The
fact that the symposium was organized by two student groups
worried about their political and economic future, Students
for Liberty and Generation Screwed, explained the mixed composition
of the conference attendees and signaled a more hopeful future
for the nascent conservative movement growing on campus as well
as in the non-academic world. This young, right-leaning cohort
-- politically active, intellectually engaged, well-educated
and civil -- are in marked contrast to their leftist counterparts
consisting of a mélange of snowflakes and hooligans,
who were soon to make their presence known at the event.
The
issues discussed at the symposium largely involved the nature
and definition of speech violence, or what is called “hate
speech,” criminalized in several countries and jurisdictions.
Both sides of the dispute, left and right, agree that limits
to freedom of speech are necessary, but disagree as to where
these limits should be placed. The left, whether radical or
moderate, regards as felonies forms of speech that offend a
privileged identity group, whether racial, ethnic, religious
(i.e., Muslims), or gender-based (i.e., women, gays, trans-people),
or criticizes the ideological positions such favored groups
adopt. Additionally, a prime tactic of the left is what we may
call pre-emptive suppression. Speaking engagements are often
shut down before or during an address, making debate and discussion
impossible. Censorship and repression thus become acceptable
methods of dealing with such perceived “transgressions”
as open colloquies, lectures and conferences.
The
conservative right believes that speech should be mainly unfettered,
except when it damages reputations through lies or urges acts
of physical violence. Of course, speech itself can be an act,
as philosopher J.L. Austin has shown in How to Do Things
with Words: in his most famous example, when the minister
states “I now pronounce you husband and wife,” an
act has been performed since it changes the status of the participants.
We
should note, however, that words critical of an individual or
a group are not performative (or “illocutionary,”
in Austin’s phrase). If I criticize Islam as a violent
faith, I do not thereby make it violent or directly instigate
violence against it. My words do not change the reality of Islam,
whatever it may be. In the U.S., even words advocating violence
(except in official or legally constituted circumstances, or
in situations where there is a clear and present danger) are
not considered performative. The 1969 Brandenburg vs. Ohio Supreme
Court case ruled that “speech can be prohibited if it
is "directed at inciting or producing imminent lawless
action." (Italics mine). In the words of the Legal
Encyclopedia discussing the case, “the First Amendment
protects speech unless it encourages immediate violence or other
unlawful action.” (Italics mine). In this instance, both
the temporal element and unequivocal incitement are crucial.
Mere advocacy is another question entirely and is not prohibited,
although here the conservative argument tends to draw the line,
even if the U.S. Supreme Court did not.
In
Canada, we are not so fortunate. We have no First Amendment.
The Canadian Charter of Rights and Freedoms establishes
free speech as a principle of civic life, but with so many exceptions
that the term “free speech” has become an empty
watchword, an instance of virtue-signalling. The logic on which
its application is based is ludicrously circular. For example,
the Supreme Court decision in the Whatcott case, in which Bill
Whatcott was convicted of hate speech for protesting what he
saw as a homosexual agenda in primary school, reads: “The
benefits of the suppression of hate speech and its harmful effects
outweigh the detrimental effect of restricting expression which,
by its nature, does little to promote the values underlying
freedom of expression.” As my wife Janice Fiamengo puts
it in Episode
52 of her video series The Fiamengo File,
“free speech matters only when it is speech that promotes
‘the values underlying it.’” In other words,
free speech is only free speech when it is free speech. Consequently,
“if expression is made conditional on its promoting a
particular set of values, then it is clearly not in any sense
free or valued in itself.” Tightening the already-restrictive
noose on free speech even further, the Canadian Parliament is
now preparing to debate Motion 103, which authorizes the government
to take steps to eliminate “Islamophobia,” and will
surely tackle the element of critical speech as well.
Ironically,
the notion of “hate speech” as interpreted by the
left and progressivist leaning institutions (such as the Canadian
Parliament and Supreme Court), apart from the fact that it is
defined so broadly as to render most utterance suspect no matter
how implausible or absurd, becomes itself an agent promoting
hatred -- or, to adapt Austin’s resonant term, a “speech
act” generating criminal behavior, such as pulling fire
alarms, blocking public exits and entrances and creating public
mayhem. It has also incited censorship, fines and the threat
of imprisonment, thus materially changing the status of its
targets. It is a totalitarian strategy to silence and suppress
those with whom it differs and to replace reasoned, evidence-based
debate with slogans, threats and punitive action.
The
conservative position, on the contrary, insists on the principle
of freedom of expression and assembly as the essential underpinning
of a free society, while at the same time eschewing mere license
and refusing to condone speech that actively promotes literal
defamation, physical violence or palpable injury. In other words,
speech that offends or insults groups, based on race, color,
religion, national origin, sexual orientation, disability, or
other traits should not fall under the cowcatcher rubric of
actionable “hate speech.” For the impulse to legislate
does not stop there. The dogmatic tendency to proscribe speech
leads by insensible degrees to Orwell’s 1984 and
Hayek’s The Road to Serfdom.
What
is called “hate speech” should be countered by speech
that defends what is being attacked or speech that returns the
insult, so long as the explicit incitement to violence or destruction
is not countenanced. A society is no longer free when natural
speech inclinations, no matter how controversial or untoward,
are legally annulled. The real hate-mongers tend to be the same
people who so liberally cast “hate speech” aspersions
and accusations at those whom they oppose, that is, they hate
a free and open society.
There
is obviously a grey area between free speech and hate speech
-- human life cannot be reduced to a scientific formula enabling
precise distinctions -- but there should be no doubt that critical
speech, analytical speech, satirical speech, spontaneous speech
and offensive speech should not be legislated. Free speech is
not a speech act. The term “hate speech” in its
current acceptation, however, is merely a pretext for the eventual
passage of blasphemy laws, envisaging the death of a free and
democratic society.
To
return to the U of T symposium. The event was scheduled to conclude
with a talk by controversial author and founder of The Rebel
Media Ezra Levant, the highlight of the convention. Books
like Ethical Oil, Shakedown and Trumping Trudeau,
and the fact that Levant is frequently embroiled in legal battles
with aggrieved Muslims (and ethically compromised judges), have
made him a major draw on the conference circuit. Right on cue,
as Levant stepped to the podium, a throng of protestors, plainly
neither conferees nor students, swarmed past a detail of useless
security guards and proceeded to wreak havoc. The fire alarm
was pulled and the entire building (the Sandford Fleming Engineering
Building) had to be evacuated. Classes were disrupted as well
as the lectures in the auditorium seating hundreds of paying
attendees -- and that was the end of the affair. This, as noted,
is a standard tactic of the dysfunctional and anarchy-loving
student left. The harlequin gasconade must go on.
One
recalls James Baldwin’s searing chronicle, The Fire
Next Time, a blistering indictment of racism. Baldwin famously
asked: “Do I really want to be integrated into a burning
house?” The house that is now burning is not strictly
the racial house; it is the very house of the American republic
and the Canadian confederation. It is the fire this time. The
typical rant of the left, the throwing around of incendiary
epithets -- racist, fascist, Islamophobe, transphobe, misogynist,
homophobe, white supremacist—and calls to rape, kill,
and assassinate function more like speech acts that physically
alter the nature of civic and political reality. I am not saying
that such inflammatory speech should be outlawed; rather, that
it evinces the left’s blind spot since, according to leftist
doctrine, this characteristic vernacular is patently a form
of hate speech and has led directly to acts of public disorder
and outright violence aimed at suppressing legitimate political
events and expunging conservative advocacy.
This
is what happened when the fire alarm was pulled at the University
of Toronto (and in many other locales). This is emphatically
what happened at U.C. Berkeley when brigades of alt-left Antifa
thugs shut down a speaking engagement by Milo Yiannopoulos,
leaving smashed windows, injured bystanders and burning fires
in their wake. As the virulent rhetoric of middle school teacher,
so-called anti-racist activist, Berkeley rioter and member of
the group By Any Means Necessary Yvette Felarca amply
demonstrates, such is only the next level up on the spectrum
of political vandalism embraced by the left -- acts of hatred
as the tangible embodiment of hate speech itself.
