...at me, by David Bernstein (George Mason Law), for my (apparently provocative) remarks on free speech in Canada. As predicted, he says naught about the extensive suppression of substantive political speech by the corporate media in the United States. More interestingly, he says much that is revealing about the libertarian mindset, and, in addition, he makes one, perhaps two, sound critical points (about which more below). This sets Bernstein apart, appropriately, from some of the logically and semantically challenged readers who linked to his posting, whom one can find by following the link at the Volokh Consipracy site. Those who, uncharitably, thought conservatives were stupid might find solace in these links--but more on them in the next posting, which I'll reserve for my "the less they know, the less they know it" category.
Since, alas, many folks don't read too well, let's start by recapping the main points of my original posting:
(1) It is ironic how Americans pontificate about the lack of "free speech" in Canada because Canadians prohibit hate speech, without noting the far more serious suppression of speech, about far more central matters, effected by private actors in the United States. Even if one thought it were bad to sanction those who want to say, "Kill all the fags/niggers/kikes" etc., it is surely far worse, in terms of its consequences for economic and social policy as it affects human well-being, for private actors to exclude from the major media views that dissent from the chauvinist nationalism and neoliberal orthodoxy now dominant in the United States.
(2) It is especially peculiar that, if hate speech is to be prohibited, that one should think a special exception should be made when the hate is religiously motivated. Only in America is it (now) thought that a religious grounding excuses moral depravity of all kinds. (This is in constrast to the constitutional law of the 1960s and 1970s, which took the view that religion was constitutionally "special," meaning that it both enjoyed special protection from the state, but that the state also had an obligation to keep religion in the private sphere; First Amendment viewpoint discrimination doctrine beginning in the 1980s has largely undermined this tradition, which is a serious loss for Establishment Clause values.)
(3) Canada is, cuturally, part of the the post-WWII European consensus based on the Nazi experience--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity. Despite this, the quality of public dialogue in Canada and in Europe is much higher than in the United States: there is a greater diversity of views well-represented in the major media and in the political sphere. The explanation for this is plainly not the law--the law in these countries is in some ways, superficially at least, more restrictive of speech--but rather the social and cultural ethos and environment.
Now let's take Bernstein's points, to see what we learn about free speech in Canada and about the libertarian world view:
Bernstein: "It's a fallacy to assume that speech restrictions are motivated primarily by moral rather than political considerations. It's a fallacy to assume that law in general is motivated by moral rather than political considerations. Right now, gays and others have sufficient political power in Canada to achieve protection from their critics. Who and what gets silenced next depends not on Canada's level of civilization, but on what groups manage to organize themselves into powerful lobbies with the strength to get politicians to silence their enemies."
Leiter: Claims like this do require some empirical support on their behalf, especially when they are incredible on their face. (What next? U.S. policy towards Israel is explained by the powerful Jewish lobby?) How did gays in Canada acquire so much political clout? Are they 51% of the Canadian population, though only 3-8% everywhere else? What is the evidence of their malign political machinations and their ability to bend the law of the nation to their will? Does Bernstein really mean to deny that the social and cultural ethos exercises a profound impact on the character of a nation's laws? Presumably not, so what can he mean that would make sense?
Bernstein: "Brian's post reveals one of the major differences between libertarians and our friends on the left: libertarians tend to believe that the government cannot be trusted with too much power, whereas leftists tend to believe that the wrong people cannot be trusted with too much power."
Leiter: David would, of course, put it this way, but let me restate it in a way that preserves part of his point, but gets the emphasis right: "Libertarians appear to believe that society can function with very little government, whereas 'leftists' [and everyone else] believes that state power is more necessary than libertarians recognize, so that it matters very much who wields state power and what their objectives are."
Bernstein: "[H]ow can you predict in advance whether the right people will be in power in the future? The genius of the Framers of the American Constitution was to establish a system of government that assumed the untrustworthiness of whomever would take power in the future, with a system of checks and balances and constitutional restraints to limit their power. Much of this system no longer exists, but the First Amendment preserves the ideal of limiting government authority in the sphere of communication."
Leiter: You can as little predict in advance whether the right people will be in power, as you can predict in advance that purported constraints on state power like those contemplaed by the "genius" Framers will be at all meaningful over time given whose actually in power in the future. (Who would have guessed a time would come when a U.S. President would delcare a right to spirit away citizens to US army brigs, without oversight by the courts?) In both cases, political power, and who wields it, will matter. Libertarians can't opt out of this fundamental problem of political life.
Bernstein: "Albert Jay Nock once wrote, 'whatever power you give the State to do things for you carries with it the equivalent power to do things to you.' What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us."
Leiter: What separates American from Canadians and Europeans is that the Americans have been conned, on a massive scale, in to being unable to identify or distinguish (1) between kinds of state power (e.g., the power to tax, to provide healthcare, to wage war, to run the secret police, etc.), (2) the risks they actually involve, (3) what the actual benefits of the different kinds of state power are, (4) what the risks are from private power unchecked by the state, and (5) how all those risks should be balanced against all those benefits. What distinguishes the Canadians and Europeans, in short, is that most of them would laugh out loud when served up childish bromides like Nock's.
Bernstein: "There is nothing civilized about putting someone in jail for saying that homosexual acts are a sin."
Leiter: Canadian law--as I would have thought Bernstein of all people would know--does not provide such a penalty for someone who says homosexuality is a sin. That statement, by itself, is not hate speech in Canada.
Bernstein: "Civilized people settle their differences without violence, and locking someone in jail is a violent act."
Leiter: I'm glad Bernstein and I agree about the state of civilization in America, which of course has one of the highest per capita incarceration rates in the world.
Bernstein: "In Canada, you don't even have to condemn homosexual acts to be subjected to state violence. Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 (approximately $3,400 U.S.), print the requested material, and apologize to the group's leaders. Brockie had always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group. He just didn't want to participate in what he considered sinful activities. Forcing someone to act against his beliefs in this way is not 'civilized,' but the modern equivalent of compulsory mass."
Leiter: I will assume, though without knowing the details of this case, that Brock was in violation of applicable civil rights and anti-discrimination laws (the Canadian Charter explicitly protects against discrimination based on sexual orientation, and there are presumably multiple laws giving that protection force). Even in the United States, one would not get a religious exemption from laws prohibiting racial discrimination, as Bernstein must surely know. And Bernstein also surely knows that there is no legal right in America to not be forced "to act against" one's beliefs. So this is just silly. The bottom line is that the only difference between America and Canada in this example is that sexual orientation enjoys in Canada the kind of legal protection race enjoys here. If Bernstein's point is that he does not think it marks an advance in civilization to provide protection against discrimination for homosexuals, then he ought to say so plainly, and not confuse this issue with issues about hate speech and religious liberty.
Bernstein: "Speaking of gays in Canada, what does being civilized have to do with the fact that as part of the Canadian government's suppression of obscene material, Canadian customs frequently target books with homosexual content. Customs seizures have included Andrea Dworkin's Pornography, and several serious novels. A gay organization had to spend $14,000 (approximately $9,600 U.S.) in legal fees to force customs agents to allow The Joy of Gay Sex into the country. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores. Two gay activists at the University of Toronto were fined for selling Bad Attitude, a lesbian magazine with sadomasochistic content. According to the ACLU, "more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government."
Leiter: One of my readers raised a related issue, and this is an important point. Canadian obscenity law (not Canadian hate speech law) does not reflect well on Canada, though I'm still awaiting some explanation of what's going on in cases like this from my friends better-versed in this matter.
Bernstein: "I wonder where all the enlightened, civilized Canadians were when Professor Sunera Thobani of the University of British Columbia, a native of Tanzania, faced a hate crimes investigation after she launched into a vicious diatribe against American foreign policy after 9/11? Thobani, a Marxist feminist and multiculturalist activist, had remarked that Americans are 'bloodthirsty, vengeful and calling for blood.' The Canadian hate crimes law was created to protect minority groups from hate speech, but in this case, it was invoked to protect Americans. The police revealed the investigation to the media, despite a general policy against doing so, because, a hate crimes investigator explained, 'here we have a complaint against someone who is obviously from a visible minority, whom the complainant feels is promoting hate. Normally, people think it's a white supremacist or Caucasians, promoting hate against visible minorities . . . We want to get the message out that it's wrong, all around.' The police eventually decided not to file charges for undisclosed reasons, perhaps because Thobani's speech was sufficiently rambling that her perceived attack on Americans could alternatively be construed as an attack on the 'socially constructed' American nation invoked by President George Bush. While still potentially insulting to Americans, this would not violate the hate crimes law. Had she been speaking of real Americans and not socially constructed Americans, though, she could be in the clink right now."
Leiter: Perhaps they didn't file charges because her speech was not illegal? Are we really to draw conclusions about the value of particular laws from a single anecdote involving bad judgment by local police officials? If so, no laws will survive.