Monday, June 25, 2018

Right to Free Speech, not to an Audience

In Brian W. Van Norten's article in today's New York Times, "The Ignorant Do Not Have a Right to an Audience" he carefully argues the stance that I've attempted to argue over the years: We can offer people free speech, but that's different than offering them a venue and audience. He starts with some questionable arguments from a few famous names, and closely examines the argument that society benefits from hearing all sides:
"Even if Coulter and Peterson are wrong, won’t we have a deeper understanding of why racism and sexism are mistaken if we have to think for ourselves about their claims? And “who’s to say” that there isn’t some small fragment of truth in what they say? If this specious line of thought seems at all plausible to you, it is because of the influence of “On Liberty,” published in 1859 by the English philosopher John Stuart Mill. . . . The problem, though, is that humans are not rational in the way Mill assumes. I wish it were self-evident to everyone that we should not discriminate against people based on their sexual orientation, but the current vice president of the United States does not agree. I wish everyone knew that it is irrational to deny the evidence that there was a mass shooting in Sandy Hook, but a syndicated radio talk show host can make a career out of arguing for the contrary. . . . 
I suggest that we could take a big step forward by distinguishing free speech from just access. Access to the general public, granted by institutions like television networks, newspapers, magazines, and university lectures, is a finite resource. Justice requires that, like any finite good, institutional access should be apportioned based on merit and on what benefits the community as a whole. There is clear line between censoring someone and refusing to provide them with institutional resources for disseminating their ideas. . . . For these prestigious institutions to deny Murray an audience would be for them to exercise their fiduciary responsibility as the gatekeepers of rational discourse. We have actually seen a good illustration of what I mean by “just access” in ABC’s courageous decision to cancel “Roseanne,” its highest-rated show. Starring on a television show is a privilege, not a right. . . . 
What just access means in terms of positive policy is that institutions that are the gatekeepers to the public have a fiduciary responsibility to award access based on the merit of ideas and thinkers. To award space in a campus lecture hall to someone like Peterson who says that feminists “have an unconscious wish for brutal male domination,” or to give time on a television news show to someone like Coulter who asserts that in an ideal world all Americans would convert to Christianity, or to interview a D-list actor like Jenny McCarthy about her view that actual scientists are wrong about the public health benefits of vaccines is not to display admirable intellectual open-mindedness. It is to take a positive stand that these views are within the realm of defensible rational discourse, and that these people are worth taking seriously as thinkers. Neither is true: These views are specious, and those who espouse them are, at best, ignorant, at worst, sophists. The invincibly ignorant and the intellectual huckster have every right to express their opinions, but their right to free speech is not the right to an audience."
Exactly!

Many of the commenters on the article have a unifying concern: "Who will be the judge of what's right?" And they then conclude, like Mill, that we simply have to have a forum for everyone or else the government will get its hand in the mix, and it'll be hell for everyone. But that's not the only option. Van Norten makes it clear that TV producers are able to fire overt racists from their shows, and, similarly, universities have a right to refuse a venue to guest speakers who promote bigoted views. It's a matter of 'my house, my rules.' If you don't want to go to a university that refuses to give space for 'white nationalists' like Faith Goldy, then you're free to choose to go elsewhere. I'm hoping enough universities take that position that it becomes difficult for racists and homophobes and flat-earthers and climate deniers to find an institute that shares their views so openly.

Saturday, June 23, 2018

On Limits to Free Speech: Hate Crime Laws and Defamation Suits

Watching the excellent series The Handmaid's Tale, at first I questioned the glaring lack of racism in the show. It's supposed to be happening just a few years in the future, and somehow racism has completely disappeared. Homosexuality is outlawed, but they're totally cool with mixed race relationships. But, on further thought, obviously they're okay with it. The crisis they're facing in Gilead is infertility. The realization reminded me of Reagan's line,
“I occasionally think how quickly our differences worldwide would vanish if we were facing an alien threat from outside this world.”
We can give up our prejudices on a dime when there's a bigger threat looming over us. Prejudices are arbitrary and developed for their usefulness, for instance, to control groups of people, or to help the masses to blindly accept any suffering experienced by the group of choice, whatever group we've decided don't quite count today. Because it's all so slippery, and we're often so easily led, we must have stoppers in place, barriers to prevent the development of practices that harm a random group of people. We must have limits to speech.

Our Charter gives us freedom of opinion and expression. However, since society won't be improved and our freedom better secured by allowing people to publicly incite hatred against a group of people who are identified race, religion, gender identity or expression, age, ability, etc., we rightfully have laws, an Act, and a Code preventing that very specific type of speech that incites hatred against people. We also have limits to our speech when it comes to harming individuals, and laws (right next to the hate crime laws) and a Code for that too. But beyond that, legally, anything goes. You can still openly criticize people for identifying as left wing or an SJW or any other position that's become an insult recently. Our legislation indicates that we recognize the power of words.

It's curious to me when people who believe we should have zero limits on free speech will happily use legislation that limits free speech when it works in their favour. To be consistent, if they're against free speech boundaries when it comes to hate speech, then they should oppose defamation laws as well. If the argument is that we should be free to say anything, no matter how harmful it is to a person or group of people, and then people who oppose us are free to counter our claims openly, then that obliterates both hate crime and defamation laws.

Or this:


Of course I'm talking about recent lawsuits filed against WLU. Despite that Shepard, a T.A.,  surreptitiously taped a conversation and publicized it herself, she claims the conversation made her unemployable (for $3.6 mill), and Professor Peterson's lawsuit (for $1.5 mill) claims that Laurier staff,
"intended, in making these statements, that the comments could be available, potentially widely discussed, and would damage Peterson’s reputation … now and in the future"
The Globe and Mail reports that,
"Several experts in defamation law, however, said the university could argue that any comments made in the meeting are protected by “qualified privilege.” “The law wants to give people the ability to speak freely without fear of a libel lawsuit in certain situations,” Toronto defamation lawyer Gil Zvulony said. Disciplinary meetings could be one such situation if the people in the meeting are fulfilling their duty, according to defamation and media lawyer Peter Jacobsen."
So I imagine this will end soon, but not without further infamy for the parties involved and further black marks on Laurier's reputation. I have an acquaintance whose son will be going in the fall, and she commented that they won't let the kids say anything there. I remarked that they're just trying to prevent people crossing the line into hate speech, and she lamented that we're all gotten too carried away. I have no idea how to bridge the divide between our views.

It doesn't help that there are people who have gotten carried away:



Peterson clearly has a sense of humour, and the use of airhorns and chanting during a discussion is absolutely obnoxious. The bit starting at 4:40 has been circulating, with many claims that it's out of context, so I included the entire clip. There are people stopping others from being heard, and security should be on them to cut it out. Absolutely. Chanting while people are speaking isn't part of hate crime legislation.

But, as Peterson asks, who does define hate speech? How do we decide that someone is inciting hatred? In Canada's actually use of the legislation, it's typical extreme speech that includes a threat to bodily safety: in one case a man incited hatred and issued threats to a Muslim group, another had a message that "could lead to an altercation," and one was a matter of violent speech, and this article clarifies that it's speech made to,
"intimidate, harm or terrify not only a person, but an entire group of people to which the victim belongs. It applies when the victims are targeted for who they are, not because of anything they have done, and can involve intimidation, harassment, physical force or threat of physical force against a person, a group or a property. . . . to call for, support, encourage or argue for the killing of members of a group."
So calling someone 'him' instead of 'them' won't get you arrested. And using an analogy that compares someone to Hitler also won't be enough for a conviction.

I've written previously about the importance of limits to free speech when it incites hatred, and I've also written that where protecting free speech is most imperative: we must be allowed to question figures of authority and present dissenting views. Gilead is a great example of the what the reverse of that would look like: where hate speech is rampantly promoted and questioning authority figures is punishable by death. And it's horrific.

ETA: Now it's coming out that Peterson appeared as an expert witness in a court case, but the judge dismissed his testimony for lacking any scientific rigour.

And Matthew Sears compared Peterson to Cleon:
Cleon, however, was not particularly big on free speech, at least not as it was practised by Aristophanes. The demagogue apparently took Aristophanes to court several times in an attempt to silence him, as historian Todd M. Compton recounts in detail. Aristophanes, however, only resolved to intensify the barbs he slung at his rival. In The Acharnians, produced in 425, Aristophanes lets loose:  
 “And Cleon. Him I know from —shall we say? —personal experience. Last year’s comedy provoked him. To say the least. He dragged me into the Senate House, sued me, and opened the sluicegates. Slander and lies gushed from his tongue in torrents, and down the arroyo of his mind there roared a flash flood of abuse. To purge me, he purged himself —and in the offal, filth and fetor of his verbal diarrhea, I nearly smothered, mortally immersed.”  
 Three years after The Acharnians, Aristophanes produced a comedy called Wasps, in which two competing characters are respectively named Philocleon and Bdelycleon. The former means “Love Cleon” while the latter means something like “Cleon Makes Me Puke.” So much for being deterred by lawsuits.
Sears saves the most important point for the end:
Who is going to talk about Peterson negatively now without worrying that they might be contacted by a lawyer and have their livelihood threatened? Peterson is by any measure a public figure, and is quite forceful —and even deliberately provocative — about getting his own views across. He should be fair game. I worry now that he’s not. In the end, Peterson just looks like a hypocrite, claiming to be free speech’s champion while stifling the free speech of others in very tangible ways. Like Cleon, this suit makes him look ridiculous. Perhaps someone should write a comedy about Peterson with a main character named “Peterson Makes Me Barf” or a new name in the spirit of Aristophanes, like, say, “Rottenlobsterpeteypants.”
ETA: The Beaverton

ETA: And then there's Laurie Penny's article:
The fact that this is being taken seriously, that it demands to be taken seriously, is frankly embarrassing to converts and critics alike; a symptom of an intellectual and political culture running on fumes. . . . watch a grown man who makes a living telling other people to toughen up rebound into spasms of outrage, threaten to sue you, threaten to punch you, and whip up his followers into such a storm of harassment that a great many critics are now nervous to push back on his ideas at all. And this is the great free-speech defender.