On Restricting Free Speech

 “I disapprove of what you say, but I will defend to the death your right to say it.” – Evelyn Beatrice Hall

I'm not so sure I agree with Ms. Hall's famously misattributed line.  People say some truly cruel things, and I'm not convinced we should have a right to be publicly malicious.  As always, I say too many things in one crazy long post instead of breaking it up into many separate issues, but I tend to see issues too interconnected to separate.  So there it is.

Let's begin by contemplating on some different scenarios: some fictitious for comparison purposes, others all too real:

1. People joking online about chloroforming and hate raping their fellow classmates.
2. People joking in a private room about hate raping classmates.
3. People standing in the cold to lambast a comedian and trying to convince people not to support him because he allegedly did some nasty things, even though he was not yet tried in a court of law.
4. People chanting, "We believe the women" as he tries to speak, trying to deny his ability to speak even though his words - mainly - aren't offensive - certainly not relative to many comedians.
5. People chanting, "bully" as a troublesome classmate tries to speak.
6. People drawing and distributing funny cartoons sexualizing sacred figures and negatively stereotyping certain religious groups.
7. People drawing funny pictures of dicks in class.
8. People making a funny film depicting the execution of a character who's imitating a real person.
9. People petitioning the Prime Minister with an onslaught of spiteful, defamatory comments.
10. People petitioning a teacher with an onslaught of spiteful, defamatory comments.
11. A teacher using the word "dicks" on a public blog.

These are dramatically different situations, but they all provoke the question: What should we be allowed to say?  I use these examples framed this way because all week I've been dwelling on some of them, and I've found myself changing sides swayed by different types of details.  I'm attempting to develop a more consistent way to approach these issues here, or at the very least to figure out why some words and scenarios bother me more than others.  This might be messy.

First, I think it's vitally important that people be allowed to openly criticize authority figures.  The most dangerous loss of freedom is the inability to speak out against government.  But I'm a sensitive sort - or maybe a reasonable sort - and as much as I hate our current PM for the stance he's taken over his lengthy time in office, I'm jarred by some ad hominem comments people make about him as a person - even though from time to time I may let slip horrible things myself.  There's a part of me that often (but not always - it's messy!) remembers that he's someone's dad.  We definitely need him out of office, but we don't need him personally destroyed in the process.  He is a human being....who has way too much power for my liking.  But, I maintain that he still has a right to be treated with dignity as we vote him out of office.

I don't think it's a problem to openly criticize Harper's blindness to longterm effects, nor his lack of transparency, nor his controlling nature with his caucus.  It's the "hope he dies and burns in hell" path that could easily be shut down without affecting democratic freedoms.  Venting and criticizing are two different things with a different purpose and, as such, deserve a different forum.  Venting is what we do with a close friend listening privately; it has no place in a public debate.  This distinction is all the more important when openly criticizing people in positions of power further down the line - like MPs that you're likely to see in your grocery story, or local journalists, or even teachers who didn't sign up to be in the public eye in the same way politicians and journalists do.  With open access to an online forum seen by millions, it has become far more important to teach argumentation skills at a young age, and to offer reminders everywhere.  But if we can't teach people to stop venting in public places, to actually control their own outrage like a theoretical grown-up might do, then I think (big breath) we need to have some legislation in place to prevent or punish this action.  

For criticism to be valued, it must be valuable.  And too many arguments seeking to attack a position, end up bludgeoning a person instead.  The typical arguments used online is well illustrated here:

Graphic based on Paul Graham's "How to Disagree" 

A similar distinction might be noticed in satire as illustrated in this Sacco cartoon.  Satire is important because humour allows people to get away with saying thing others might fear to say too restrained by political correctness.  The Daily Show, Colbert Report, and Last Week Tonight are excellent examples of satire being a public service.  But I believe satire should still be restrained by basic human decency - NOT from a fear of offending the sensitive who might be in need of some constructive criticism, but from a civilized distaste for causing unwarranted harm to other human beings.  Intentionally causing harm to a person or group who are doing nothing wrong - nothing that needs to be called to the fore at least - is either an act of, if ignorant to the effect, a moron, or, if unconcerned with the harm being caused, a psychopath.  Both need to be addressed.

We don't have any hesitation warning students that if they say cruel things about another student online, they'll be dealt with seriously. My region's school board site says, "cyber bullying includes the use of email, text messages, and internet social networking sites to threaten, harass, embarrass, socially exclude, or damage reputations and friendships."  Students get in trouble pretty quickly when they harass other students online.  At the very least, they're called out on it by a VP.  Sometimes just a chat that makes it clear that people know what you did, and a clarification around the problem with the words used, can be enough to deter further actions.  At our board, we openly restrict free speech that happens outside of the school day and off school property because we know it has effects within the school.  Yet the idea of implementing something similar at the national level is abhorrent to many people.  I might be more understanding of the insistence that adults should be able to speak freely if they actually spoke like adults more consistently.

I'm also concerned about the shift towards a more vigilante justice driven by a mob mentality out for blood. I'm a strong feminist and want to change the barriers in place that prevent women from being all they can be, and I want to help create a world free from sexual harassment, abuse, and assault.  But I want to do it in the most respectful way possible ever emulating the ideal of treating others as I'd like to be treated along the way.  The mobs gathering to pressure Dalhousie to expel students for heinous online comments is an example of this trend.  I believe there should be consequences for the "gentlemen," but the consequences should fit the crime.  They acted stupidly, but the fact that they intended their comments to remain private suggests to me that they didn't intend any malice.  I'd rather see them apologize to each woman in their class individually following a restorative justice model, as well as see a public apology offered, than to have their education voided at this stage of the game.  I think it's possible for someone be an excellent dentist even if he has a warped sense of humour.  Part of my argument is predicated on the belief that what we say privately doesn't always have a clear correlation with our public behaviour or our authentic attitude - i.e. I don't believe their words are necessarily a peek inside their conscience revealing potential for future violent actions.

And it goes without saying that nobody should be shot for what they write, say, or believe.

In cases like the Dalhousie incident, I ask myself, "To what extent could that have been me?"  I have a strong interest in politics, but would never dream of running for office because I know I can't always hold my tongue.  My words have offended people in the past, and it took until I was well into my 20s to stop insisting people shouldn't be offended by mere words, and instead to begin to apologize sincerely for the unintended effects of my actions.  I say stupid things all the time, and my sense of humour can be very dark even including Bill Burr's style of comedy that stands counter to many of my personal beliefs.  It terrifies me that, as a teacher, one wrong comment could possibly cost me my job.  Any rules or legislation governing this arena have to be able to separate the stupid from the malicious.  Yes, that can be very difficult to ascertain, which is why it belongs in the hands of a judge and jury and not a crowd.

BUT that mob pressuring the school, really, is just a collection of individuals providing their opinion to the dean - much like I'm doing here.  I'm just hoping the dean doesn't bow to popular opinion on this one.  This brings me to another part of the conundrum:  the effect of words depends on the thickness of the hide of the listener.  We never really know how much another can take, so we must be careful.

As always, I had an interesting discussion with some students on this topic.  One leaned heavily to the side of total free speech with the development of a thick skin, and solved the problem of hurtful comments like this (loosely paraphrased):  "We must teach people to be rational even if it means brainwashing the less logically-minded, so that when someone says something critical, they'll be able to evaluate it rationally.  If there's some merit to the comment, they can take it into consideration and possibly amend their position.  If there's no merit to the comment, they can simply toss it aside as a piece of foolishness."

But, I argued, many people, even rational, logical people, can't easily toss meritless comments aside.  That act involves more than a steady intellect.  I wonder if it's only a rare person that can be honestly unaffected by a barrage of barbed criticism - and I further wonder if it's perhaps more a case of social obliviousness than a rising above the fray.  But, furthermore, it can be downright dangerous to simply ignore sexually aggressive comments because we do never know when they might be put into action.  And for the masses, even being cursed at regularly can erode the strongest will.  It makes far more sense to stop this problem at the top of the river where people are being thrown in, than to keep trying to rescue people further down.

David Brooks, in an excellent article in the New York Times, suggests that we should use social punishments rather than legislation because people can overreact to minor offences,

If you try to pull off this delicate balance with law, speech codes and banned speakers, you’ll end up with crude censorship and a strangled conversation....Fortunately, social manners are more malleable and supple than laws and codes. Most societies have successfully maintained standards of civility and respect while keeping open avenues for those who are funny, uncivil and offensive.

This is similar to the idea of the student just mentioned above, and I disagree for similar reasons.  I fear it's not the case that the social provocation of manners will be enough to eradicate this phenomenon of open cruelty available en masse.  Social forces can do wonders as is clear with the change in our day-to-day language.  In my high school days in the late 70s/early 80s, teachers used some racial slurs that we wouldn't hear from some of our most corrupted charges today.  I had a university professor tell our class, "The only good Indian is a dead Indian."  Social denunciation can clearly work, but it's a slow and imperfect practice to depend on for necessary change.

Like my student, Brooks expects us to be able to relegate offensive comments to a different place in society where they have no traction, but I believe that just isn't possible for the average user of social media.  It's just not a viable solution.  And, while it's true that some authorities have gone too far punishing minor transgressions as Brooks points out, keeping this issue off the legal books entirely tosses the baby with the bathwater.  Because it's not currently always done well, is not to say it shouldn't be done at all and be improved.  We need to provide punishable rules around intentional cruelty, but we must be much more careful around how this type of regulation is implemented, and, as always, ensuring that the punishment fits the crime.    

A different student in my class made a similar argument that we should have total free speech, and people should just individually retaliate against comments against them.  If women are made uncomfortable or fearful by a group of guys making rape jokes, they can take revenge with slanderous comments about specific gentlemen's sexual inadequacies and abilities.  But, I countered, where does that get us as a society trying to live and work together?

I don't want to live in a society where my emotional stability or even just my reputation could be destroyed because we deem the protection of free speech so important such that haters are permitted to craft the cruelest comments for online consumption undeterred by any legal restrictions.

We don’t have unqualified freedom of speech here in Canada. It's an indictable offence for anybody to "incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace."  But since the Harper government repealed section 13 of the Human Rights Act so, as far as I understand this, it's no longer a crime to use hate speech on the internet (made effective last June but with much controversy).  We also have a right to sue for defamation. Ontario legislation "prohibits the dissemination of defamatory comments, specifically, spoken or written words that discredit an individual in the estimation of right-thinking members of society generally" and that includes on-line comments, if you can find out who made them (which is a different issue entirely).   Specifically defamation is written as,

"The act of harming the reputation of another by making a false statement to a third person…A false written or oral statement that damages another's reputation....A statement that tends to injure the reputation of a person referred to in it. The statement is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear, or dislike.

Unlike many, I like some restrictions on our freedom of speech.  I don't buy the slippery slope argument that any restrictions at all will send us down a path towards a V for Vendetta situation.  Like I believe we can legalize marijuana without eventually legalizing heroin, and like I believe we can legalize same sex marriage without it leading to people marrying sheep or shoes, on this front, I believe we can criminalize hateful comments against identifiable groups or intentionally destructive comments against individuals while still retaining the right to criticize people even in a position of power openly and without penalty beyond a verbal claim to the contrary, AND while still retaining the right to speak our oppositional opinions freely, and to continue to joke around with one another.

It can be important to speak uncomfortable truths that others don't feel allowed to say couched in comedy.  Dark humour can also be a means of coping with trauma.  Legislating intentional malice shouldn't have any effect on our ability to make one another laugh.  It's not about stopping any potentially offensive remark made, but about stopping the maliciousness that's beginning to rule parts of the internet and spill out into our daily lives.

Unlike many crimes, this type of legislation can't be measured by the effect on the victim, with victim impact statements read in court, or else every easily-slighted person will have 911 on speed dial.  It has to look at intention and motive and the measure the words and actions against a set standard of reasonable harm.  It could be set up as an extension to our existing hate crime laws.  I don't think it will be easy to craft such a document, but I think it's no less necessary.

Something like that.

ETA - six years later - this twitter thread by @jonpayates on the treatment of a teacher who taught using an image of Mohammed in the lesson.