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.

The Rewards of Punishment

I wondered aloud, yesterday, about the difference between falsely shouting “fire” in a theatre and causing a panic, and producing an incendiary video likely to cause murderous violence half a world away. Actually, I wondered whether there was any difference; I wasn’t able to come up with a convincing distinction. Eugene Volokh, over at the eponymous conspiracy, has a post with an interesting suggestion.

Suppose, he says, we punish the makers of the insulting video that caused riots all over the Middle East this week:

What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they’ve gotten America to submit to their will. And on top of that, they’ve gotten back at blasphemers, and deter future blasphemy. A triple victory.

Would this (a) satisfy them that now America is trying to prevent blasphemy, so there’s no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

Now I think that, theoretically, there is a distinction between punishing the a person for offending another’s religious (or other) feelings, and punishing him for endangering lives, even though the reason lives are endangered is the offence he gave. Prof. Volokh considers the former possibility, and I the latter. But, in practice, the extremists who incite riots would be unlikely to see that difference; or if they saw it, they would be likely to wilfully blind themselves to it. They would look at the bottom line: they responded violently, and got what they wanted. And they’d be back for more.

This problem simply doesn’t arise in the case of the person who shouts “fire” in a theatre. He endangers people; he is punished for endangering people; end of story―there are no perverse consequences to worry about. This is a practical difference between the two cases. And, as I said in yesterday’s post, the law should be made and thought for the real world, and so must arguably take such practical differences into account.

Still, is this all there is to it? Should we forebear from punishing the maker of an insulting video only because of the perverse consequences of punishing him? Or, alternatively, do we think it’s all right to punish the panic-monger just because we know there’s no cost to doing so? Despite my musings on the importance of consequentialist thinking about matters usually thought of in terms of pure rights, I would like to think there is also a deeper normative difference between them, which justifies their differential treatment regardless of the consequences. But I still can’t tell what that difference is.

Shouting Fire

A hateful idiot makes a nasty video about Islam and posts it on Youtube. Predictably enough, similar things having happened a number of times over the last few years, murderous violence breaks out in some Muslim countries as a consequence. (Unusually, there have been Western victims this time.) Predictably too, some people have been calling for speech “insulting” others’ religious feelings to be banned and punished. My intuitions―and, I suppose, those of most of my readers―are vehemently opposed to any such bans. Sure it’s impolite and stupid to insult people. But, even putting to one side the (important) fact that one person’s insult is another’s critique, insults and stupidity are a price that we agree to pay for free speech.

But here’s a question. I think  we all endorse, in principle, Justice Holmes’s famous dictum, in Schenck v. United States, 249 U.S. 47, at 52 (1919), that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But how is the anti-Islam video different from the false cry of “fire”? It can’t be the veracity of that video, since it is not actually, “true” in the sense of relating provable facts. I doubt that it can be that the video presents opinions as opposed to false statements of fact, because, at least by the accounts I have seen, it presents itself as making statements of fact about the prophet Muhammad―though of course it not really possible, without inventing time travel, to strictly distinguish factual claims from opinion in such a matter. Nor is the distinction in the predictability of the consequences of making the movie and shouting fire in a theatre―it was, in fact, foreseeable that the movie would cause violent riots. Nor is the argument that that sort of consequence is somehow so wrong that we should deem it unforeseeable even though it really isn’t very convincing. Of course it is wrong for people to respond with murderous violence―all the more so against innocents―when their feelings are hurt. But it is also wrong for people to panic, even when there is a fire in a theatre. In a perfect world, there would be no senseless riots―but people would also evacuate burning theatres in an orderly fashion. We know that the world is, in fact, imperfect, and the law should account for that. I am missing something?

I certainly hope that I am. I am not willing to give up on my intuition about the impressibility of censoring insults. Nor am I inclined to give up on my intuition that Justice Holmes was right. What gives?