Vive le Québec Libre!

Prosecutors in Québec seem to have forgotten that this is a free province in a free country. First, they came for a makeup artist whose gory videos, though involving no actual gore or violence whatsoever, were too realistic for their liking. And then, after a mere busybody concerned citizen complained, they came for a ranting blogger for, apparently, saying that someone ought to organize a mass shooting at the Québec National Assembly. (The story is a couple of weeks old, but I only came across it now, and think it’s worth highlighting, especially since it hasn’t attracted the attention of anglophone media.)

Now what Matthieu Bonin, the blogger, said is thoroughly disgusting. But that is not enough to accuse him of―wait for it―hate propaganda. Jeremy Waldron, about whose views on hate speech prohibitions I have written at length ( hereherehere, here, and here), thinks that Western democracies, including Canada, can be trusted not to abuse their hate speech laws to prosecute expression that is merely offensive, and does not fall within a fairly narrow understanding what what hate speech really is. This case is evidence that he is, regrettably, mistaken.

As the lawyer and blogger Véronique Robert, from whose post I learned about this case, explains, there is a very simple reason why Mr. Bonin is not guilty of the charge against him. S. 319 of the Criminal Code criminalizes public incitement (subs. 1) and wilful promotion (subs. 2) of “hatred against an identifiable group” (my emphasis). And “identifiable group,” pursuant to subs. 319(7) and 318(4), “means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” As Mtre Robert points out,

This is … an exhaustive list of what constitutes an identifiable group. … As this definition of an identifiable group does not include the group of politicians, there is no actus reus at all, and nothing, in my view, can ground a charge against Matthieu Bonin. In order to have him found guilty, the prosecution would have to amend the Criminal Code. (Translation mine)

As in the make up artist’s case, it seems to me that the prosecution is grotesquely mistaken about the legal claim it is asserting. But of course, even though the accused is going to be acquitted, he will have suffered stress and incurred considerable expenses. This is not how the power of a free state should be used. Whoever authorized the prosecution should be ashamed of him- or herself.

There is a further point to be made, though it is of secondary importance in light of Mtre Robert’s conclusion. The provision of the Criminal Code under which Mr. Bonin is charged might be unconstitutional. But what about R. v. Keegstra, [1990] 3 S.C.R. 697, which is generally taken to have, in Mtre Robert’s words, “have settled the question” of the constitutionality of the Criminal Code‘s prohibition on hate speech? Let me explain.

S. 319 of the Criminal Code has two subsections that create similar, but distinct offences. Subs. 1, criminalizes incitement of hatred “by communicating statements in any public place … where such incitement is likely to lead to a breach of the peace.” This is the provision Mtre Robert quotes in her post, but she does not clearly say that that is the one under which Mr. Bonin is charged. Subs. 2 criminalizes “wilful[] promot[ion]” of hatred “other than in private conversation. So it is applicable to a broader range of situations than subs. 1―anything other than a private conversation, as opposed to “a public place”, and there is no need for likelihood of a breach of peace; but subs. 2 is also narrower, in that it includes a requirement of wilfulness which is absent from subs. 1. Only subs. 2 (as well as par. 3(a)) was at issue, and was upheld, by a vote of 5-4, in Keegstra. And, importantly, the requirement of wilfulness in subs. 2 was among the factors the majority invoked as showing the limited scope of subs. 2, and therefore constitutional permissibility. Because that requirement is absent from subs. 1, I think that Keegstra does not settle the question of its constitutionality. To the contrary, it is some reason to believe that subs. 1 might be unconstitutional. So if that’s the provision under which Mr. Bonin is charged, he has, in my opinion, a fairly strong constitutional argument to make.

There is, by the way, another difference between subs. 319(1) and 319(2). Pursuant to subs. 319(6), “[n]o proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.” There is no such restriction applicable to subs. 1. This may not have any constitutional significance―the Supreme Court did not comment on this requirement in Keegstra. But if the charge against Mr. Bonin is under subs. 1, without the Attorney General’s consent, their absurdity might suggest that it would be a good idea to apply the subs. 6 requirement to subs. 1 as well as subs. 2.

The best thing, of course, would be to get rid of s. 319 altogether, for the reasons I discuss in the posts linked to above, and because we now have an example of blatant prosecutorial abuse. But so long as the provision is on the books, the prosecutors’ sense of decency―or at least their knowledge of the law―are what we are forced to count on for our freedom. Right now, in Québec, both are in short supply.

Hate, Dignity, and Law

For those who are not yet sick and tired of my expostulations on the subject, I venture some concluding thoughts on the criminalization of hate speech, and on Jeremy Waldron’s argument in support of such criminalization. My previous posts on the topic are here, here, here, and here.

Prof. Waldron argues that hate speech must be got rid of, by way of criminalization, in order to protect human dignity. Hate speech, or at least written, “semi-permanent” as he puts it, expression of hate undermines the “assurance” that a decent society ought to give each of its members that he or she will be accepted as a human being and indeed as a full member of the society in question. The conception of dignity in play here is that which ties it to status: human dignity is the high status that each of us enjoys by virtue of belonging to mankind. (Prof. Waldron developed this conception of dignity in his Tanner Lectures given at Berkeley in 2009 and available here.) Tolerating hate speech means tolerating denials of this high status for some members of the community, which a decent society shouldn’t do.

But this conception of dignity is not the only one out there, as prof. Waldron himself often points out. And although he is right that one of the ways the law protects human dignity is by upholding status as citizens and rights-bearers, it also protects dignity in other ways. Arguably, one of them, as he pointed out today in the seminar discussion of his work on hate speech, is by protecting freedom of speech. The idea of human dignity points to a vision of the human being as having, potentially, something to say―and being entitled to say it. Speech is one of those things that distinguish man from beast, and prohibiting a human being from saying what he wants is, after a fashion, a way of treating him or her as devoid of this essential human trait. So those who resist the criminalization of hate speech on freedom of speech grounds have a dignitarian card of their own to play.

But there is yet another way in which law protects dignity―and here I am deliberately taking on board the title of a great essay by prof. Waldron, “How Law Protects Dignity.” As he argues in that essay and in others, and as Lon Fuller argued in his classic book The Morality of Law, the law protects human dignity by its very nature, because governance through law is necessarily a recognition of the human beings’ capacity for taking responsibility for their own lives, whether by planning them, by applying to themselves the rules by which their community expects them to live, or in other ways. The law recognizes these capacities by laying down clear, stable, and intelligible rules for the future, so that people can plan their lives taking these rules into account, and follow them without, for the most part, having to be prodded by governmental coercion.

When the law does not give people this ability, it fails to respect their dignity. It does so, for example, when it is retroactive―when new rules are applied not to future behaviour, which can be planned to comply with them, but to past actions which could not have been so planned. More to the point, the law also fails to respect people’s capacity for understanding, planning, and self-application of rules when it is so unclear that even a reasonably diligent person cannot know what the law means or whether it applies to what he or she is about to say or do. Of course no law is perfect in this respect. Law is often complicated. We often need professional help to figure it out. This is not always the case though, and the prohibitions of criminal law, especially, are often intuitive enough. In any event, success and failure here are matters of degree. Being human, we must learn to live with imperfection. But there is only so much imperfection that we should have to put up with.

I think that hate speech laws, perhaps especially the sort of hate speech doctrine advocated by prof. Waldron, do not reach the threshold of minimal clarity to be tolerable in a society that respects human dignity. I won’t repeat here all the arguments I made in yesterday’s posts. Suffice it to say that “hate speech,” as prof. Waldron interprets the idea, is so helplessly vague that it would be fiendishly difficult to say whether a critical statement about a group or its members comes within its scope. Prof. Waldron’s attempts to clarify the notion of hate speech by equating it with group defamation, or to limit it by distinguishing attacks on dignity from mere offence, and denigration of belief from denigration of believers do not work. And if he cannot make them work, I don’t know who can.

The criminalization of hate speech would, in an important way, fail to achieve its stated objective―the protection of human dignity. In the name of protecting the dignity of a few people whose standing in society is called in question by hate speech―and they are bound to be few, in a society decent enough to be thinking about the best way to ensure that all of its members are included―criminalization would undermine the dignity of all.

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?

iPrudes

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.