Offence and Defence

I come to the third and final part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech, a book that extends the Holmes Lectures he delivered at Harvard a few years ago. I addressed his attempt to define hate speech as group libel here, concluding that it was not successful. I further argued that his justification for criminalizing hate speech, namely that doing so was necessary to give citizens assurances that their dignity would be respected, was unpersuasive, and that this criminalization would impose significant restriction on freedom of speech. Although he does not think that prohibiting free speech, properly understood, would have this effect, prof. Waldron also worries about that his claims might be made to say more than he means and used to advocate restrictions on speech more far-reaching than he would countenance. Accordingly, chapter 5 of his book, “Protecting Dignity or Protection from Offense,” argues against confusing the prohibition on hate speech with a much broader, and unjustified, prohibition on speech that is merely offensive.

The distinction between indignity and offence can be subtle and difficult to draw, but it is important and, prof. Waldron contends, the law can in fact draw it. In a nutshell, the difference is that although a person whose dignity is attacked will naturally feel hurt and offended, “[t]hat someone’s feelings are hurt is more or less definitive of offense, but it is not definitive of indignity.” Indignity has an objective component. As prof. Waldron argued earlier, it happens when a person’s membership in society or fitness for citizenship is denied―regardless of what that person thinks about such a denial. Offence, by contrast, is a subjective reaction. The two can go together, but offence is not indicative of indignity. In cases of doubt though, we should stay on the “liberal” side―that is, we should avoid censorship.

I think this is an interesting distinction; it helps us clarify our thinking. But, as I will argue shortly, it is not quite enough. There are many cases where the distinction becomes blurred. And in my view prof. Waldron does not pay enough attention to the problem of chilling effect in such cases. If it is not clear what side of a subtle distinction that demarcates the permitted from the criminal a statement falls on, speakers will fear to make it, even if a court would finally find that there is nothing wrong with it. When it comes to free speech, clear rules are arguably more important than in other areas of the law, where we can live with somewhat uncertain standards.

Much of prof. Waldron’s argument is devoted to the problem of claims by religious believers that this or that unflattering statement about their beliefs, or a (derisory) representation of something or someone sacred to them amounts to “defamation of religion” or hate speech and ought, therefore, to be prohibited. In his view, such reactions are usually driven by feelings of offence, which are not entitled to the criminal law’s solicitude. The statements that provoke them do not break the assurance of acceptance that must be given to all citizens. It is quite permissible, and indeed normal, for citizens of a democratic polity to attack their fellows’ beliefs. So long as the attack is indeed directed at belief, there is nothing wrong with it. It does become impermissible, however, when it extends to persons. Taking an example from politics, prof. Waldron says that while it is fine for him to criticize Tea Party policies as dangerous and irresponsible,

it would be inconsistent with the respect demanded by their status as citizens to publish a claim, for example, that Tea-Party politicians cannot be trusted with public funds or that they are dishonest. …   [T]hat would be a scurrilous attack on what I have called their elementary dignity in society.

It is the same with religion. It’s all right to say that a belief is absurd, so long as one doesn’t deny the believer’s humanity and citizenship.

I have sympathy for the distinction prof. Waldron is making here. I have defended something like it here, arguing that we can call our political opponents idiots, but really shouldn’t call them traitors. But while I think that we should try to keep to this rule as a matter of morality, I wonder if it is fair to hold us to this high standard as a matter of law.

More importantly, I think that the distinction between criticism of the belief and that of the believer collapses in many cases. When we say―as, for example, atheists often say of religious people―that another person’s belief is not only mistaken, but absurd and irrational, we are no longer only criticizing the belief in question. We are also saying that the believer is the kind of person who can believe irrational things―and to my mind, that is, at least a suggestion that he or she is also a less than fully fit to be a citizen. It is not different, it seems to me, from a claim that, say, people of a certain race have lower IQs than others, a claim that prof. Waldron would surely classify as hate speech. An irrational person ought not to be trusted with public funds any more than a dishonest one―and to cast aspersions of dishonesty on a group’s members because of their membership is, prof. Waldron says, “scurrilous.” And there are examples of what we now view as indisputable religious bigotry that presented itself as a legitimate concern about beliefs; anti-Catholic prejudice, for instance, which was justified by the argument that Catholics, because of their belief in the Pope’s supremacy in matters of religion, were loyal to a “foreign potentate” rather than their nation.

Prof. Waldron makes a gallant attempt to limit the scope of the prohibition on hate speech which he advocates, but I don’t think that he successfully defends it from the charge of overbreadth. The distinction he draws would prevent the criminalization of some sorts of blasphemy, for instance, but not all. At the very least, it would be exceedingly difficult to implement and would have significant chilling effects.

I add that, though I have been critical of prof. Waldron’s book in these posts, it is still a very rich and interesting work. Even at this horrible length, for which I apologize, I have not done it justice, though I hope I have been fair to it.

Hate and Disagreement

This is the second part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech. I addressed his attempt to define hate speech as group libel here. That attempt was not successful, I concluded, but that need not mean that we should not be criminalizing hate speech, regardless of its relationship with libel. The core of the case for criminalizing hate speech is presented in chapter 4 of prof. Waldron’s book, “What Does a Well-Ordered Society Look Like”. In a nutshell, the argument is that hate speech must be prohibited in order to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.

Prof. Waldron starts off by drawing a horrible picture of a society that does not prohibit hate speech:

Its hoardings and its lamp-posts may be festooned with depictions of members of racial minorities characterizing them as bestial or subhuman. There may be posters proclaiming that members of these minorities are criminals, perverts or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to disappear.  There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. There may be signs indicating that the members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain.  That is what a society may look like when group defamation is permitted.

These visible expressions of hatred are “world-changing.” They signal to their targets that they are unwelcome; they make it harder for them to go about their daily lives and to integrate in society. That’s not an accident―it’s the very purpose of hate speech. And so a decent society should not look like that. It ought to make sure that its members know that they belong there and are accepted by all other members. Even if its members do not yet agree on the details of what justice requires, they must agree on the basics,

the most elementary fundamentals of justice—that all are equally human, and have the dignity of humanity, that all have an elementary entitlement to justice, and all deserve protection from the most egregious forms of violence, exclusion, indignity and subordination.

And it is not only the government that must signal its adherence to these principles. Individual citizens share this burden too, because the law depends on self-application by citizens, and knowing that even a few are prepared to break it out of hatred is enough to feel unwelcome, less than a full member of society.

I am not persuaded by prof. Waldron’s argument. Indeed, what I find most striking about it is how it breaks with the usual Waldronian insistence on the pervasiveness of good-faith disagreement and, notwithstanding such disagreement, the trust that we ought to have in our fellow-citizens. These arguments are at the heart of his rejection of judicial review of legislation―and I know, from conversation with him, that he still very much adheres to them in that context.

Yet his dystopian vision of a society that fails to criminalize hate speech is in sharp contrast with his optimism about a “core case” society where, though citizens are committed to respecting each other’s rights even though they disagree about what those rights are. And, importantly, the “core case” society is not a Utopian fiction―prof. Waldron thinks that real polities, such as the United Kingdom, the United States, and (presumably) Canada fit the bill. I’m not sure he is quite right about that. But what I do know is that, despite not criminalizing hate speech, the United States look nothing like the paradise of hatred that he depicts. (Nor does prof. Waldron say that they do, I hasten to add.) To be sure, they did once look a lot more like that bleak vision than they do now. But it is noteworthy that even as they have become a lot more inclusive, they have come to regard the outlawing of hate speech as constitutionally impermissible.

Prof. Waldron argues that a decent society must be unanimous in agreeing on “fundamentals of justice.” So we lose nothing much by making it impossible to have an open and courteous debate between a liberal and a Nazi. Hate speech―statements that deny some people the membership in society―simply does not deserve to be heard or, more to the point, since prof. Waldron is concerned with the written rather than the spoken word, seen. But there are more hard cases than he allows. He says we must agree on the equal humanity of all. But what foetuses? Is the view that abortion should be legal akin to a statement that genocide is permissible? Some people think so. Others don’t. The Waldron of Law and Disagreement celebrates this fact. The Waldron of The Harm in Hate Speech ought, I think, to be embarrassed by it. And things quickly get more complicated if we move from the absolute minimum of agreeing that we are all human to what he said was the purpose of banning hate speech in the previous chapter―a recognition of the high dignity of citizenship. Are calls for making naturalization more difficult attacks on that dignity? What about an argument that convicted criminals should not have the right to vote? We may find such arguments distasteful, but I do not think that they are so beyond the pale that we lose nothing at all by making it impossible for them to be aired.

So I don’t think that we stand to gain nearly as much as prof. Waldron says from prohibiting hate speech. Nor do I think that we stand to lose so little as he believes from doing so. That is especially so because of the difficulty of confining the prohibition to some manageable standard and to avoid having it encompass all sorts of speech we wouldn’t want to prohibit. I will turn to prof. Waldron’s attempt to deal with an aspect of that problem in the next post.

Hate Speech and Group Libel

As I promised yesterday, I want to share a few thoughts on some arguments that Jeremy Waldron makes in The Harm in Hate Speech, his book making the case for criminalizing hate speech. (Prof. Waldron’s Holmes Lectures, from which the book grew, were published in the Harvard Law review, and are available here.) I will address the main arguments of chapters 3, 4, and 5 of the book, which are, respectively, that “hate speech” should be understood as a form of group libel, that criminalizing it serves to give members of minority groups the assurance that they will be treated as equal citizens, and that while aiming at denials of dignity, the criminalization of hate speech does not and should not protect from offence. For the sake of readability, I will devote a separate post to each of these claims. This one deals with the equation of hate speech and group libel.

“Hate speech” is a notoriously slippery phrase. But, says prof. Waldron, we can go back to a different one, that was used, for example, in Beauharnais v. Illinois, 343 U.S. 252 (1952), to understand what we really ought to get rid of: “group libel.” What we want to get at are  written statements denigrating members of certain groups qua members of groups in ways that make them appear unworthy of the dignity of citizenship or, perhaps, more broadly, membership in society. Just as defamation law generally is concerned with unjustified deprivations of reputation inflicted on individuals by a falsehoods that tend to lower them in the estimation of right-thinking people, group libel is concerned with deprivations of reputation inflicted on individuals―not groups―but by making their membership in certain groups appear to make them unworthy of citizenship. And while a person can only recover damages in a civil defamation suit if he or she is identifiable as the target of a defamatory statement, criminal prosecution of group libel does not require any specific person to be targeted, because the state can justly take up the cause of all the members of the targeted group.

But there are several problems with prof. Waldron’s attempt to tie the prohibition on hate speech with the law of libel. For one thing, I do not quite understand his focus on libel (written defamatory statements) as opposed to slander (oral defamatory statements) and thus defamation generally. Prof. Waldron says that the written word has a permanence and a visibility that the spoken word lacks, and is therefore more injurious. I doubt that this is so. Take anti-Semitism. I’m pretty sure that word-of-mouth calumny contributed much more to it than, say, The Protocols of the Elders of Zions, or any other such screed, which relatively few people read. What was much more harmful was the casual prejudice of a majority who never did.

Another set of difficulties involves the differences between the law of defamation, whether libel or slander, and the prohibition on hate speech that prof. Waldron defends. A first difference concerns sort of statements that he would criminalize under the heading of group libel. Defamation law normally distinguishes statements of fact and opinion, the latter enjoying qualified immunity. But prof. Waldron explicitly refuses to make that distinction. He also says that statements such as “no Blacks allowed” are a form of group libel too, since they deny the equal membership of their targets in society, yet statements of this sort―distasteful as they are―are not defamatory, because they are not lies.

In another way though the scope of the prohibition on hate speech, as prof. Waldron envisions it, is narrower than that of defamation law. The latter imposes liability for all sorts of negative statements―not just those that present their targets as unfit for citizenship or membership in society. Prof. Waldron is only concerned with the statements of that sort. The reason is that, for him, the purpose of criminalizing hate speech is the protection of human dignity, which he takes to mean (among other things) the equal high status of every person as a rights-bearer and member of society. I have no quarrel with that understanding of human dignity, but it is not what underlies defamation law; defamation law is concerned with the protection of reputation, and fitness for citizenship and social membership is not the only thing that matters for a person’s reputation.

Finally, unlike the law of defamation, the criminalization of hate speech, at least as it is usually implemented―and I do not understand prof. Waldron to be advocating for something different on this point―only proscribes statements targeting a certain number of groups, usually defined by innate and/or relatively unchangeable characteristics (such as race, gender, sexual orientation, etc.). Defamation law, by contrast, might have started out as a mechanism for protecting the rich and powerful, but now it protects everyone. And it is not clear why hate speech law would not. If the worry is that racist statements will make racial minorities appear to  lack the rights that the majority has, should we not worry in the same way about statements such as “police are scum”? For some people at least, such statements actually imply that members of the police are inferior, morally deficient, and perhaps deserve to be deprived of rights. Should such statements be criminalized? They are in some places―Russia is one, and of course it uses the criminalization of the stirring of hatred against “identifiable social groups” as a means of political repression. But if we don’t want to follow that dubious example, we need a distinction, an explanation for why denigration of some groups is prohibited while that of others is not. The law of defamation is not a place where such a distinction can be found.

In short, I think that prof. Waldron’s attempt to define hate speech as group libel is quite weak. There are important differences between the two concepts. Now this, without more, does not mean that he is wrong that criminalizing hate speech is a good idea. But if it is, it has to be justified on its own terms, without reference to the (perhaps) less contested defamation law; that reference is only a distraction. I turn to prof. Waldron’s justification of hate speech law in the next post.

The Rear-Guard of Hatred

I am reading parts of Jeremy Waldron’s book on The Harm in Hate Speech, in which he argues that hate speech can and should be criminalized to uphold the dignity of all the members of society. I will have more detailed thoughts on it later, probably tomorrow. But for now, just an observation that has relatively little to do with prof. Waldron’s argument.

People who argue that hate speech should be prohibited often see it as a first warning of impending social breakdown; those who engage in it are regarded as the vanguard of advancing prejudice. Prof. Waldron is something of an exception here, as I will explain in forthcoming posts. But for most proponents of prohibiting hate speech, such prohibitions are hoped to be a way of stopping this advance in its tracks. Yet when we look at the actual hate speech cases, we notice that they involve not the vanguard of hatred, but its rear-guard. Consider the petitioner in Beauharnais v. Illinois, 343 U.S. 252 (1952) who wanted to prevent African-Americans from moving into white neighbourhoods; the  respondent in R. v. Keegstra, [1990] 3 S.C.R. 697, who taught his students to be anti-Semites; most recently the respondent in Lund v. Boissoin, 2012 ABCA 300, a case about which I blogged here, who published a homophobic rant in a newspaper. They were all clinging to old prejudices―prejudices that were, by the time they were charged, in retreat. To be sure, they could yet fight, and inflict some damage. Anti-Black racism was not dead in the 1950s, nor indeed is it now, nor are anti-Semitism and homophobia. But they are fatally wounded. They are things of the past, losing ground with each passing year.

I stand to be corrected of course. If you have examples of prosecutions that tried to stop the rising, rather than hurry the ebbing tides of hatred, I’d be happy to revise my views. But I doubt that there are such examples. The phenomenon I am describing is not an accident. When a prejudice is new, it is difficult for legislators, prosecutors, and courts to recognize its danger. We know that prejudice is dangerous when it has had bad effects in the past, so hate speech laws protect groups that have historically been the victims of prejudice and hatred, on the expectation that prejudice and hatred might continue in the future. But of course the very fact that such laws are enacted shows that the majority of the population, or at least a considerable part, sufficient to elect a majority of legislators, has given up on these particular sorts of prejudice, in intent if not altogether in its day-to-day life. Prosecutions under such laws are bound to be rear-guard battles.

And this, I believe, is something we ought to take into account when we think about the usefulness of prohibitions on hate speech. If the law is only ever going to catch the rear-guard, rather than vanguard or the main body of the army of hatred, is it worth the sacrifice of freedom of speech that it necessarily entails?


There was an interesting story by Michael Posner in The Globe and Mail yesterday on Apple’s decision not to allow the sale of books and apps telling the story of Danish hippies on its commercial platforms, iBookstore and the App Store, because they contain some photographs featuring naked men and women. Apple says the pictures breach its policy against sexually explicit images. Mr. Posner accuses the company of hypocrisy, because it has not banned other books “filled with pictures of naked bodies [and] continues to sell apps for Playboy and Sports Illustrated, which feature partially naked women.” So does the author of the books, who points out that Apple’s founder, Steve Jobs, claimed to be a spiritual descendant and to share some of the ideal of the hippies movement, which he accuses Apple of betraying. The publishers, for their part, insist that the books are in no way pornographic or arousing, so that they do not breach Apple’s guidelines.

Be that as it may, the Danish authorities are not amused. Mr. Posner writes that

[l]ast week, Uffe Elbaek, the country’s culture minister, wrote to his European counterparts, and to European Union commissioners Neelie Kroes and Androulla Vassiliou, seeking to have the issue debated within the EU.

“This is a history book,” Elbaek said in an interview. “It documents how we behaved in those days. Is it fair that an American company without any real dialogue … can apply American moral standards to a product that only interests a Danish audience with vastly different moral standards?”

The minister worries that corporations “will decide how freedom of speech will be arbitrated and who is allowed artistic freedoms” and argues that “it’s important that we have these discussions at regional and national levels.” Mr. Posner too worries about freedom of speech. Indeed, he accuses Apple of “de facto censorship.”

This brings to mind several issues about which I have already blogged. One is the dual and ambiguous position of technology companies as speakers and censors, about which I have written about in Google’s case. Apple might argue that a decision not to allow the sale of a book it deems offensive or otherwise unsuitable is a form of editorial judgment and, thus, protected speech, just as Google argues its decision to disfavour copyright-infringing websites in ranking its search results is. At the same time, as the provider of a platform through which others express themselves, Apple takes on a speech-regulating role; and the importance this role is proportionate to that platform’s popularity.

But there is a crucial difference between Google removing content from, say, YouTube at the request of a government agency, and Apple removing content from its stores on its own, without any government involvement. In my view, it is not fair to refer to such decisions as censorship. A private company, at least so long as it is not a monopolist, has no power to prohibit speech. If a speaker is not allowed to use one private platform, he or she can turn to another. As Mr. Posner notes, the books Apple has banned from its stores are best-sellers in print. Their author is not exactly being silenced.

Besides, we accept that newspapers or publishers do not print everything that is submitted to them. The question, then, is whether there is a reason for holding technology companies to a different standard. Dominant market position or, a fortiori, monopoly might be one such reason. But I doubt that Apple actually has a dominant market position, even in the app market (considering Android’s popularity); it surely doesn’t have one in the book market. And I’m not sure I can think of anything else that would justify, even as a matter of morality, never mind law, saying that Apple (or Google, or whoever) has more onerous duties towards freedom of expression than traditional media companies, as Ms. Elbaek, the Danish minister, seems to think.

As always in the face of such disagreement, there also arises the question of who (if anyone) ought to be making the rules, and how―the question of the appropriate “mode of social ordering,” to use Lon Fuller’s phrase, about which I blogged here, here, and here. Ms. Elbaek seems to think that the rules regulating the ability of platforms such as Google’s or Apple to select and “censor” their contents should be said by national governments (by legislatures presumably, or maybe by executives through international treaties) or by supra-national bodies such as, presumably, the EU. (Note that she spoke of “discussions at regional and national level”―not at the UN, which she probably knows is not too keen on certain kinds of offensive speech the Danes see nothing wrong with.) But it’s not clear that governments, at whatever level, should be making these rules. As wrote in my earlier posts, legislation is often a clumsy tool for dealing with emerging technologies and new business models, because the latter develop faster than the former can adapt. And private ordering through the market might be enough to take care of the problem here, if there even is one. Apple is not a monopolist; it has competitors who might be willing to give the books which it does not like a platform, and profit from them. Authors and readers are free to use these competing platforms. Apple will remain a prude―hypocritical (as prudes often are) or not―if it thinks there is a profit to be made in prudishness, or it will convert to more liberal ways if that is more profitable.

Pity the Censor

I have started reading the WWI memoir of a British journalist, Philip Gibbs, called Now It Can Be Told. At least part of the reason for the title is that during the war, what he saw could not be told because of military censorship. Gibbs’ description of the censors’ modus operandi is worth quoting at some length:

It seemed the G.H.Q.―mysterious people in a mysterious place―were drawing up rules for war correspondence and censorship; altering rules made the day before, formulating new rules for tomorrow, establishing precedents, writing minutes, initialing reports with, “Passed to you,” or, “I agree,” written on the margin. The censors who lived with us and traveled with us and were our friends, and read what we wrote before the ink was dry, had to examine our screeds with microscopic eyes and with infinite remembrance of the thousand and one rules. Was it safe to mention the weather? Would that give any information to the enemy? Was it permissible to describe the smell of chloride-of-lime in the trenches, or would that discourage recruiting? That description of traffic on the roads of war, with transport wagons, gun-limbers, lorries, mules―how did that conflict with Rule No. 17a (or whatever it was) prohibiting all mention of movements of troops?

This brought to mind my post about the struggles of the Alberta Court of Appeal in defining hate speech. To be sure, there is a great deal of difference between trying to eliminate one particular, and narrowly, if imprecisely, defined sort of undesirable speech and the sort of comprehensive censorship which Gibbs describes. There might also be a difference―at least the common law’s traditional position was that there was a great difference―between “prior restraints,” the requirement of the state’s permission to publish (the imprimatur―”let it be printed”), and the possibility of punishment or liability after publication.

Still, the two cases illustrate just how difficult any attempt to prohibit some speech on the basis of its content is bound to be. Perhaps paradoxically, the difficulty is especially acute if the censors enforcing the prohibition try to go about it in good faith and with the general sense that they should not prohibit or punish more than is necessary. It is easy enough to be a brutal censor and just prohibit anything at all in case of the slightest doubt. But being a conscientious censor is very hard indeed.

Of course, something being difficult is not a conclusive reason for refraining from it. For instance, it is difficult to maintain the law of defamation while respecting freedom of speech, but I think that there are good reasons not to give up trying, as the U.S. pretty much have. Nonetheless, the difficulty of censorship is a good reason (among many others of course) for having as little of it as possible.

The Idea of the Marketplace

Apologies for the lack of blogging for the past week. We had this minor disturbance of a hurricane, and then I went to a conference in Chicago to present my paper on federalism and judicial review.

My topic today is the highlight of that conference, a keynote address by Robert Post, Dean of the Yale Law School. Dean Post spoke about academic freedom, and how (American) courts struggle to understand it and integrate in the the First Amendment jurisprudence. Dean Post as expressed much the same ideas in a brief essay, “Discipline and Freedom in the Academy”, (2012) 65 Ark. L. Rev. 203 (which will, presumably, be available on the Review’s website in some not too distant future), and in a book he published this year (which I haven’t yet looked at). There is a lot of food for thought there, but I would like to focus on one specific claim.

One source of difficulty that courts have with figuring out the true meaning of academic freedom, says Dean Post, comes from the interference of the notion of the “marketplace of ideas.” It is a staple of the American free speech jurisprudence; and of course it sounds intuitively relevant to a discussion of universities, since they are in the ideas business. Unfortunately, this intuition is misguided, according to Dean Post. In the “Discipline and Freedom” paper, he writes that “[t]he marketplace of ideas is designed … to eliminate content discrimination. It is supposed to enshrine an equality in the field of ideas.” But there is, and can be, no such equality in academia, or in any setting that is devoted to the pursuit of knowledge, especially of expertise, the institutionalized sort of knowledge universities are charged with producing. Academic disciplines recognize claims as true or false; arguments as valid or not. A university (as well as, say, a scientific journal) must be able to say that some ideas are brilliant and others rotten, and it does so all the time―when hiring a would-be professor, when granting him or her tenure, etc. Importing the notion of the marketplace of ideas into the academic setting contributes to the belief that academics are free to say whatever they please, but that’s nonsense. Once we understand that the purpose of universities is not to foster an equality of ideas but to generate expertise, we also understand, concludes Dean Post, that academic freedom is really the freedom of the academic profession to judge its members and their output by the standards of truth and validity it sets itself.

This is just a bare-bones sketch of one of the lines in Dean Post’s rich argument. I hope it is fair to him, even if it surely does not do it justice. Dean Post’s idea that universities, and the production of knowledge more generally, require discipline and judgment about what is true and valid, and what is not, seems obviously right to me. And I think Dean Post is right too that there is a danger in relying on the metaphor of the marketplace of ideas to develop a jurisprudence of academic freedom. But the danger is not exactly the one he sees. It is not that the marketplace of ideas is an inapt metaphor for describing the production of knowledge, but that it is a complex one, and easily misunderstood. Dean Post, I am afraid, it guilty of misunderstanding it in two ways.

First, a marketplace isn’t a place of equality. If the market is free, then everyone is equal in the sense of being legally able (which is of course not to say capable, or inclined) to enter it as a buyer or a seller. But not every seller will be successful, because every seller competes against other sellers of the same or similar products. Some products fare well; others do not. If the market is free, it is the preferences of the buyers, rather than the decisions of the government, that determine who succeeds and who fails. The marketplace of ideas is no different. It is not a place of equality. Some ideas are accepted, others rejected. When we rely on the metaphor of the marketplace of ideas in discussing freedom of speech, we imply that this particular marketplace must remain a free one, in the sense that the preferences of the “buyers”―the readers, the listeners, etc.―determine which “products”―ideas―succeed, and which fail. The government cannot pick winners here, or erect barriers to entry, or even engage in much of the regulation that we consider acceptable in other markets.

Second, the market doesn’t consist just of individual sellers and buyers. In most markets, (most) sellers (and often buyers, but the demand side is less important here) are firms. And firms, as Ronald Coase pointed out in his brilliant paper on “The Nature of the Firm“, do not function internally according to the market principles of free competition at all. They are like islands of central planning, little command economies, even as their relationships with each other are structured according to market principles. The reason for this, Coase explains, is that on (relatively) small scales, command economies are actually more efficient than markets, because they avoid transaction costs. What about the marketplace of ideas then? Does it too have its “firms”―organizations which, internally, are not structured on free market principles? Arguably, Dean Post’s insight about universities not obeying marketplace of ideas principles is the equivalent of Coase’s insight about firms―universities are (one sort of) firms in the marketplace of ideas. (Others probably include the institutional press, and perhaps other producers of ideas). Internally, as Dean Post points out, universities or scientific journals are not marketplaces of ideas. But externally, they are producers on the great marketplace of ideas of our society. When, for example, I submit a paper to an academic journal, the journal evaluates it according non-marketplace criteria of truth and validity. But once it decides to publish it, it arrives on a market place of ideas, where it might have to compete against other papers in the same area, which have also passed the tests of truth and validity, and where its success or failure will be measured not by any institutional assessment, but by the interest of the readers and their willingness or not to accept my claims.

Now I’m not yet sure what, if anything, the takeaway from this is. I think that Dean Post’s key insight about the importance of institutional practices of assessment of truth and validity of scientific claims and arguments holds true whether we describe this assessment as taking place outside the marketplace of ideas altogether or within special structures, not organized on marketplace of ideas principles, which are nonetheless themselves part of the marketplace of ideas. My thinking here is still a prototype―I want to show it off, but am not yet ready to put it on the market.

The Confusion in Hate Speech

The Alberta Court of Appeal delivered an interesting decision on the meaning and application of prohibition on “hate speech” in the province’s human rights legislation. The case, Lund v. Boissoin, 2012 ABCA 300, concerned the publication in a Red Deer newspaper of a letter to the editor urging citizens to resist “the homosexual agenda”, and in particular the teaching of homosexuality’s acceptability in schools. The letter was intemperate and offensive. Two weeks after its publication, a gay teenager was attacked in Red Deer. Outraged by the letter and the attack, an activist brought a complaint against the author of the letter and an organization of which he was the head to the Alberta Human Rights and Citizenship Commission, saying that it contravened the provision of Alberta’s human rights legislation that prohibits publishing or causing the publication of a statement “likely to expose a person or a class of persons to hatred or contempt” on the basis of a personal characteristic, such as sexual orientation. Eventually, a tribunal found in the complainant’s favour, and ordered the respondents to apologize and to pay damages. That decision was then overturned by the Court of Queen’s Bench. The complainant appealed.

Importantly, the parties did not raise constitutional issues on appeal. The court suggests quite strongly that these issues deserve to be debated. It wonders whether the hate speech prohibition is intra vires the province, in light of the “Implied Bill of Rights” cases holding that Parliament has the exclusive power to regulate (political) speech, and whether they are in keeping with the Charter’s guarantee of freedom of expression. But since the parties do not argue these issues, the court cannot decide them, much as―one suspects―it would like to. As McGill’s prof. Fabien Gélinas writes in a paper on “Virtual Justice and the Rule of Law,” “in all but the exceptional cases, [the judge] can only answer those questions that someone cares to ask him―which are not by any means always those which he yearns to answer.”

Proceeding on the basis that the statute is constitutional, the court nonetheless must interpret it to decide what “expos[ing] a person or a class of persons to hatred or contempt means.” It must also interpret an exception to the general prohibition on publishing statements having that effect, which provides that “nothing” in the prohibition “shall be deemed to interfere with the free expression of opinion on any subject.” And it must decide whether the respondent’s letter fits the scope of the prohibition and the exception.

On the interpretation of the general prohibition, one issue was whether, in order to come within its scope, speech had to have some sort of nexus to actual discrimination or infringement of human rights. The judgment below reached this conclusion, and the provincial Attorney General, who intervened, supported it. But the Court of Appeal rejects it firmly, holding that it had no basis in the language of the statute. The narrower interpretation is the result of a “reading down” of the statute, a narrow reading designed to preserve its constitutionality where a broader one would be unconstitutional. But here there is no conclusion―though there is doubt―that the broader, “plain” reading of the legislation is unconstitutional, so the reading down is uncalled for. The other issue, of course, is the meaning of the phrase “hatred or contempt.” Relying the Supreme Court’s interpretation of the same words in equivalent federal legislation, the Court of Appeal finds that it must be a narrow one, encompassing only extreme ill-will.

Applying this interpretation to the respondent’s letter, the Court holds that it does not reach the level of extremeness prohibited by the statute. A statement alleged to expose people to hatred or contempt must be considered in context. In particular, it is important to keep in mind that in a free society, it is permissible to express opinions on the morality of others’ behaviour―and thus to say that a person’s behaviour is immoral. Here, the context was a live public debate on the appropriateness of schools’ teaching children about homosexuality. As part of this debate, an independent newspaper concluded that the views the letter expressed deserved to be brought to the public’s attention―and that the readers’ critical response to it would be enough to promote tolerance. Thus

“[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities” (par. 70).

It is also the expression of an opinion on the morality of certain behaviour, which is a matter of public debate.

“Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech” (par. 72).

Ultimately, says the court, reasonable people will differ about what amounts to hate speech and what doesn’t. But in its view, the respondent’s letter is nothing more than “an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have” (par. 77).

Although it thus concludes that the letter does not come within the scope of the prohibition on hate speech, the Court considers the meaning of the exception for expression of opinions. The trouble, in its view, is that it seems to be so broad as fully contradict the general prohibition. In order to avoid interpreting one provision so as to cancel out the effect of the other, the court below blended the two is a sort of balancing exercise, treating the exception as a reminder of the importance of freedom of expression. The Court of Appeal holds that this is not the right approach. The statute’s words must be given their full effect. The exception cover all statements of opinion―but not purported statements of fact. The letter at issue, the Court holds, is an expression of opinion, and thus covered by the exception.

In effect, the Court interprets the hate speech provisions of Alberta’s human rights legislation as a prohibition on the more extreme forms of group defamation. The distinction between purported statements of fact and opinion comes straight from the law of defamation―though the law of defamation is very wary of the idea of group defamation, requiring the plaintiff to be identifiable as the subject of the defamatory statement. And there is another importance nuance in the law of defamation. It only protects statements of opinion for which accurate factual context is either provided with the statement, or is deemed to be generally known. The Court doesn’t seem to import this limitation in its interpretation of the hate speech provisions.

Overall, this case illustrates, once again, the problems with attempts to prohibit hate speech. I have some sympathy for the impulse behind the attempts (defended, for example, by Jeremy Waldron in this column). But when it comes to transforming the good intention into statutory language, the outcome tends to be hopeless vague. And judicial interpretation results in the statutes being vanishingly  narrow, yet at the same time still desperately unclear. Whether or not it is philosophically attractive, hate speech legislation is not a success.

Don’t Try Again

The BC Court of Appeal recently delivered an important decision in the area of election law. The case, Reference Re Election Act (BC), 2012 BCCA 394, is the Court’s take on the provincial legislature’s attempt to respond to the Court’s earlier judgment in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, which struck down the spending limits the legislature had imposed on so-called “third parties” for a “pre-campaign period” preceding general election campaigns.

Before the 2009 election, British Columbia did not limit the expenditures that “third parties”―that is, everyone except candidates and political parties―could incur during election campaigns. For that election, however, it imposed a limit of $150,000 on expenditures incurred not only during the official campaign period, but also during the 60-day “pre-campaign period” immediately preceding it. (Unlike at the federal level, in B.C. elections are held on fixed dates, so the timing of such a period is known in advance. Indeed fixed-date elections were the reason for the introduction of this restrictions―the legislature feared, apparently, that third parties would overwhelm the voters with their advertising in advance of an election, to compensate for their inability to do so during the actual election campaign.)

Trade unions―the main victims of third-party spending restrictions in Canada, as I pointed out here―challenged these restrictions in Teachers’ Federation, and succeeded. The Court held that although the Supreme Court had upheld restrictions on third-party spending during a campaign period in Harper v. Canada (Attorney-General), 2004 SCC 33, [2004] 1 S.C.R. 827, the rationale of that decision could not be stretched to extend to a pre-campaign period, resulting in restrictions on political speech well beyond those held to be justifiable in Harper. For example, said the Court, these restrictions could apply to discussions of legislative debates if the legislature were sitting during the pre-campaign period.

Seizing on that example, the B.C. legislature sought to remedy the constitutional defect identified by the Court of Appeal by enacting amendments to third-party spending limits shortening the pre-campaign period to 40 days, and excluding from it any time within 21 days of the end of a sitting of the legislature. In other words, “the pre-campaign period may then be as long as 40 days or, depending on the length of a legislative sitting prior to an election, no time at all.  The limitations may apply from 28 to 68 days varying from one election to the next.” (Par. 18) These amendments were not proclaimed into force; rather the government decided to assure itself of their constitutionality by referring the question to the Court of Appeal.

It did well, because the Court was not impressed by the amendments. In a fairly brief decision, it pointed out that the issue was not whether the amendments were less restrictive than the rules struck down in Teachers’ Federation, but whether they were minimally impairing of freedom of expression, as required by s. 1 of the the Canadian Charter of Rights and Freedoms as interpreted by the Supreme Court: “[i]nterfering with the freedom of political expression must then be justifiable only where there are the clearest and most compelling reasons for doing so.” (Par. 25) This they were not, said the Court. The real problem identified by both the trial and the appellate judgments in Teachers’ Federation was that restrictions on third-party advertisements during the pre-campaign period were over-broad, because they applied to all sorts of communications, including those on issues not directly implicated in the election campaign. And so,

[g]iven that, insofar as they limit political expression in the pre-campaign period, this Court has held the [rules struck down in Teachers’ Federation] to be constitutionally invalid principally because of the overbreadth of the definition of election advertising, it is difficult to see on what basis the current amendments could be said to be constitutionally sound in respect to the same period when they contain essentially the same definition. (Par. 37)

The Court also observed that Harper did not resolve, or even address, the issue for the pre-campaign period, and the restrictions acceptable during the actual campaign are not so before. The government adduced no evidence to show that restrictions on third-party spending are necessary during the pre-campaign period, and so the amendments are not minimally impairing of freedom of expression, and are thus unconstitutional.

Although I am very skeptical of limits on third party spending, as I have already suggested on this blog, I suspect that this is a somewhat wilful, or at least wishful, interpretation of Harper. That case was decided in the context where the election date was not fixed, and, unlike the BC Court of Appeal, I think that its rationale can easily be stretched to apply to the pre-campaign period in that context. It is an unsound rationale, but that is a different matter. And in Harper, the majority did not care much for evidence of the necessity of spending limits. “Common sense” inferences were enough for it. Although the Court here pays lip service to that reasoning, I do not think it follows its spirit. Here too, it is a bad spirit, but it constitutes, until proof of the contrary, the Supreme Court’s position. I wonder if the BC government intends to appeal.

Words and Misdeeds

Following up on my musings here and here on the reasons why we think it is sometimes permissible to punish a person for saying something that is likely to cause others to act in a certain way, and sometimes not, my friend Simon Murray asks a very sensible question: in what other cases do we sanction people on the basis of a possible reaction of others to his words?

The answer is that we do it in quite a range of situations. The Criminal Code is replete with incitement offences, which criminalize statements made by one person because of the intended reaction to these words by another, to whom they were addressed.

There is a general incitement offence in s. 22, which provides that

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.

(It is not necessary, by the way, that person whom the accused incited to commit an offence actually have committed it: see, for example,  R. v. Hamilton,  2005 SCC 47, [2005] 2 S.C.R. 432.)

But there are also specific incitement offences: for example incitement to mutiny (s. 53), counselling piracy (s. 75), incitement to various illegal sexual acts (ss. 152 et seq., 160), counselling suicide (par. 241(a)), advocating genocide (s. 318) and incitement of hatred against an identifiable group (s. 319), and others.

What is interesting is that the Criminal Code sanctions incitement not only of crimes, but also of things that are not criminal or even immoral. For instance, racial hatred is immoral, but not in itself criminal, yet incitement to it is. And suicide is arguably―though this is admittedly controversial―not even immoral, never mind criminal. To be sure, the criminalization of incitement to suicide probably dates to a time when suicide was in fact regarded as immoral. But, despite thinking that a person who commits suicide is not acting immorally (at least as a general matter; there might be specific exceptions depending on the circumstances), I do think that it is immoral to incite someone to do it, and I’m not convinced that we are wrong to criminalize such incitement.

On the other hand, I do think that criminalizing other forms of incitement, even of incitement to immoral actions, would be wrong. (Consider, for example, imposing a criminal sanction for incitement to adultery.) And for the most part, the Criminal Code sanctions incitement to commit crimes, not merely morally reprehensible acts. So, once again, it seems that the law is all over the place here, and so are my own intuitions. Maybe Parliament and I are just being inconsistent. But maybe there is a deeper logic to it all, which I haven’t so far been able to figure out. I’m afraid I’m not especially knowledgeable about criminal law and theory, so that’s certainly possible.