A number of readers wrote regarding the posting on "Free Speech in Canada."
Chris MacLeod, a Canadian law student here at Texas, offers an interesting perspective:
"You write that, '[n]othing of human value is lost ... when the right to express contempt (whether dressed up in the language of morality and religion, or not) for Jews or Gays or Blacks is sanctioned. The marketplace of ideas, the search for truth, is unhindered.' I'll agree that the marketplace of ideas does not suffer from the absence of such voices, though I can see permitting such expression anyway, if only to remind the rest of us that a few persist in holding such noxious points of view. But I question your assertion that 'NOTHING of human value is lost.' However despicable we think the Ernst Zundels and James Keegstras of the world, they spoke out of conviction. Silencing their sincere expressions of conscientiously held belief does violence to their rights to self-determination. David A.J. Richards has argued that when the state coerces silence in this way, it undermines the preconditions for its own legitimacy; I'd add that this applies even when speakers don't have a First Amendment to shield them from governmental interference. As a Canadian, I've therefore followed the development of speech law under the Charter with alarm and some sadness. Accordingly, I think your admiration for Canada's 'level of civilization' misses something important. Yes, I think the Canadian state behaves in a more civilized manner. We don't execute people. We try to ensure that each has access to adequate health care. We've finally begun to atone for our disgraceful treatment of native peoples. But make no mistake - Canada's regulation of hate speech stems as much from a desire for ideological conformity as it does from a commitment to liberal values. Let me explain. American lefties may admire Canadian progressivism on a range of issues, but they are only seeing part of the picture. It's crucial to understand that Canada is also in the midst of a culture war. The people of Toronto, Montreal, Vancouver, and Ottawa embraced Trudeau's vision of a tolerant, multicultural society, and have dominated Canadian political life for decades now. Citizens in the western provinces and rural areas - largely white and culturally conservative - didn't vote for Trudeau, didn't adopt his warm fuzzy liberalism, but discovered to their dismay that they lacked the concentrated numbers to seriously contest his agenda. That hasn't changed much. It's no accident that Alberta (Texas North)'s Tory government now plans to invoke the Charter's notwithstanding clause to prevent gay and lesbian marriage. Folks 'back East' might support expanding marriage rights, but Premier Ralph Klein is on solid ground with his own constituents when he opposes it. C-250 represents yet another attempt by Canada's urban elite to tighten the noose around those recalcitrant hillbillies who never bought into the multicultural ethos. I'm generally comfortable with Trudeau's world view, but strangely enough, I find myself rooting for the ignorant and hidebound on this one. They're absolutely wrong as a matter of moral and political justice, and should not be permitted to maintain policies that discriminate against gays and lesbians. But let them talk. We've humiliated them enough by tying their hands. Let them talk."
Austin Cline of the Atheism Guide site also disputes some of my conclusions:
"You wrote: 'So I admire Canada, not so much for their approach to free speech, per se, but rather for having achieved a level of civilization that permits them to regulate expression without sacrificing the central values of the post-Enlightenment world.'
"On the whole, I found your perspective on censorship in Canada to be interesting and thought-provoking. I believe that in the above, however, you are quite mistaken.
"I direct you to the following links: here and here.... as well as anything you might want to dig up on the case of the Little Sisters Book and Art Emporium. Under laws that banned porn which degraded women, the government singled out material destined for the gay and lesbian market. Ironically one of the people's whose ideas were behind the Canadian censorship laws, Andrea Dworkin, had some of her own material seized at the border.
"You write: '[T]here is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment.'
"This is true - but it is also true of Canada as well. One might be able to argue that their political system and society have advantages over that which we have in the United States, but one cannot argue that Canadians are born more virtuous than Americans - and the justice of any system lies in the virtue of its citizens. Virtuous Americans will make the American system work, un-virtuous Canadians will cause their system to be corrupt.
"If Canadian officials can twist obscenity laws designed to protect women into tools for use against gays, I wouldn't be inclined to trust any other speech regulations created there. Would you?"
Mr. Cline poses a good question, and much would depend on what explains what happened with the obscenity laws. I invite further feedback from readers knowledgeable on the subject.
Alex Sears, a law student at the University of California at Hastings (that's the free-standing law school of the UC system, located in San Francisco), wrote:
"Your quote: '[I]f, in short, you dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States, you will have far more freedom of speech in Canada: for example, your views might be expressible outside your living room, perhaps, say, in major newspapers, or even on television.'
"....[A]s you're a law professor, it shouldn't need pointing out to you that, as Vik Amar taught me last year, the right to free speech does not give everyone the right to an audience.
"LaRouchies, Buchananites, Chomskyites, and holders of myriad other out-of-the-mainstream viewpoints aren't guaranteed column space in major newspapers or air time on TV, due to the publishers' and broadcasters' own freedom of speech in the form of editorial and journalistic discretion, and the courts' acknowledgement of the burden that would be placed on media outlets by forcing them to provide a forum for every speaker who wanted access (see, e.g., AETC v. Forbes). Those whose opinions don't find space in the NY Times and the WaPo are still free to publish in their own outlets (The Nation, Mother Jones, The American Spectator), to buy their own airtime, or to disseminate their views through the same channels as Michael Moore and Noam Chomsky, who have somehow managed to find a quite substantial audience for their 'dissenting' opinions. And as if your statement needed any further refutation: my law school is adjacent to a couple of plazas that have, over the past couple of years, hosted many gatherings of thousands of 'dissenters,' freely (and very loudly) expressing their views well outside of their living rooms, and having their pictures published (complete with slogans on signs and banners) and their statements quoted both on television and in major newspapers.
"Your writings are often thoughtful, and I enjoy reading your comments on law schools and faculty. I was therefore quite disappointed in the sloppy approach you took to the meaning of 'freedom of speech' in this post."
It seems to me Mr. Sears has misread my original posting: I didn't say anyone has a right to an audience, I just noted what is obviously true: namely, that the marketplace censors a variety of opinions and restricts their availability (and "buying" one's own time isn't an option for most, as Mr. Sears surely knows); and that explains why, for example, one can speak much more freely (in the literal sense of that word) about myriad matters in Canada or Europe than in the United States. Chomsky can be read regularly in mass-circulation newspapers and heard on the major media outlets in Canada and Europe, but not in the United States. If anyone actually thinks this is because his views have been fully considered by the American public and media and found wanting, then I'm not sure what to say. There are, I fear, simpler and more plausible explanations.
So notwithstanding Canadian restrictions on hate speech, it remains the case that there is freer and more robust discussion of almost every conceivable topic of cultural and political significance there than here--and notwithstanding the fact that one is precluded from calling homosexuality a "moral disorder." This is primarly traceable to the political and cultural environment, rather than the law. (And the contrast, by the way, is clear from the reactions to my own exercises of free speech within the parochial American environment: vide this moron, frothing at the mouth.)
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