There's nothing liberal about compelling liberalism

September 2012

At just about any social gathering, a dimwit is sure to explain that free speech isn’t absolute. There are limits. Chances are he’ll tell you about a person yelling “fire!” in a crowded movie theatre, then look at you as smug as a parrot, expecting a treat for having figured things out.

I usually resist asking “Polly wants a cracker?” but it’s an effort. His “Fire!” example isn’t merely shopworn but silly. It doesn’t demonstrate that people’s right to free speech isn’t absolute, only that free speech neither precludes nor excuses barmy behaviour. Free speech doesn’t legitimize criminal conduct and it probably doesn’t cure leprosy, either. So?

In practice, few defendants use society’s guarantee of free speech against a charge of public mischief, and even fewer try to answer charges of fraud, defamation, conspiracy, impersonation, espionage, or any of the scores of crimes or civil wrongs that may be committed through the medium of speech. Recently a blogger — a professor, no less — called me “very confused” for thinking free speech is “absolute” yet listing “familiar ways in which it can be restricted: defamation, fraud, etc.” Of course, a fraud-conviction only shows that using words to commit a crime doesn’t excuse it, not that free speech has limits, but maybe the professor thinks that if his right to drive to Chicago were absolute enough, it should entitle him to hit pedestrians on the way.

Most people don’t. Mobility rights aren’t raised as a defense against a charge of trespassing or home invasion, not because mobility rights aren’t “absolute” but because they confer an entitlement to mobility, not criminality. If an American shows his gun to the clerk in a milk store and says: “Give me the cash,” invoking his First and Second Amendment rights at his trial for robbery will amuse the court and avail him little. The reason isn’t that the right to free speech (First Amendment) or the right to bear arms (Second Amendment) isn’t “absolute” enough, but that the Bill of Rights entitles Americans to speak freely and to bear arms, not to rob milk stores.

Talk about freedoms not being absolutes usually masks an agenda of statist opposition to free speech. By mixing up speech as an instrument of conduct (sometimes unlawful) with speech as a conveyor of ideas (sometimes heretical) statists can piggyback arbitrary restrictions on consensual practices. The state that can outlaw bad cheques can outlaw bad poetry. I don’t just mean that the state has the power; that goes without saying. The state has the power to do anything, except to continue viewing itself as a liberal democracy if it indulges in authoritarian practices. After it has grabbed society by the short hairs (as they used to say in the 1960s) the state must make sure our hearts and minds follow. That’s a breeze for a tyranny, but a tough call for a liberal state.

Compelling liberalism, hard as it may be, is the smaller problem. The bigger problem is that it’s illiberal to do so. In 1977, the year human rights commissions and “hate literature” legislation started in Canada, such laws seemed progressive. Those of us who had trouble believing that liberalism would be achieved by wiping liberalism out were in a minority.

“We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and even if we were sure, stifling it would be an evil still,” wrote John Stuart Mill 150 years ago. To my contemporaries this sounded like gibberish. Come again, sir? Stifling a false opinion, evil? Is the man crazy? Boy, he wouldn’t last long on the staff of Human Rights Commissioner Jennifer Lynch.

The Western mainstream, having hit rock bottom around the time George Orwell predicted in his prophetic novel 1984, started its long, cautious climb back towards Stuart Mill’s heights. A January 1999 editorial in the National Post viewed Canada’s hate-speech legislation as “potentially sinister” whose proposed new provisions “could be put to authoritarian and illiberal purposes.” That was quite a difference from mainstream press reactions 22 years earlier when the first HRCs hit the ground running in an atmosphere of self-congratulations, proclaiming as achievements some of the very features that were among their worst flaws, such as convicting “offenders” with near-criminal consequences on civil standards of proof.

The rebound occurs just when theocrats and terrorists, those the poet W.B. Yeats called “the worst” are “filled with passionate intensity,” are on the prowl. A pity — but that’s the hand we’re dealt. “What is ‘hate speech’? It’s speech the authorities hate,” I wrote a few years ago. “No doubt, it is often worth hating. It may be speech that every right-thinking person ought to hate, but it is also, by definition, speech that falls short of [being] unlawful.”

Hate-speech legislation can only ban free speech. Prohibited speech is already banned. Crime is hemmed in by strictures against slander, official secrets, perjury, fraud, incitement to riot and so on. When laws go beyond suppressing crimes, they suppress opinion and creed. There’s nothing else for them to suppress. And a society that suppresses opinion and creed isn’t liberal. I wonder which part of that sentence requires a tutorial for some professor.