Communication
May 7, 2012

Freedom of expression and the ethics of debate

Over the last few years criticism of Canadian human rights commissions has grown both in scope and intensity. A primary flashpoint has been the commissions’ jurisdiction over offensive speech. Debate has raged as to whether these powers should be reduced, or even eliminated, because they constitute unwarranted limitations on expression.

Most recently, controversy has focused on the Canadian Human Rights Commission’s authority to sanction communications which are “likely to expose a person or persons to hatred or contempt.”  Chief Commissioner, Jennifer Lynch, used a speech to human rights officials in June to comment on the issues. The speech is worrisome for its misunderstandings of both freedom of expression and the importance of it to the realization of other rights and freedoms. But I will start with some of the good points she made.

Commissioner Lynch notes that much of what is said about human rights commissions is “inaccurate” or “unfair,” for example, that complaints about offensive speech make up much of their work. In Alberta, such cases constitute one to three percent of the caseload. Across the country, it is not much different.

It has also been claimed that discrimination no longer occurs, so human rights commissions have no “legitimate” work left to do. Tell that to the many women refused work or fired because they are pregnant. Legally, pregnancy discrimination is a form of gender discrimination, but many employers are good at making it look like something else. Aboriginal people, the disabled, gays and many others can provide plenty of evidence that discrimination, unfortunately, remains widespread.

Nevertheless, on freedom of expression Lynch is seriously wrong. She says the “power [of words and ideas] while overwhelmingly positive, can also be used to undermine democracy, freedom and equality.” Thus “Canada, and many other nations have enacted laws to limit forms of extreme hateful expression that have very minimal value in the free exchange of ideas, but do great harm to our fellow citizens.”

In fact, most ideas are neither “overwhelmingly positive” nor harmful – they are trivial. It’s not only “extreme hateful expression” that has “very minimal value.” Turn on the TV, go to nearly any blog or Twitter. A huge percentage of what is broadcast or published serves no socially valuable purpose whatsoever.

Why then is freedom of expression so important? Because it is too dangerous – except in a few limited circumstances, where the harm is serious, and irreparable or imminent, for the classic example, yelling “fire” in a crowded theatre – to let some people decide for others what has value and what has not, what they can say or hear and what is forbidden.

For evidence, read the decision of the human rights panel in the complaint against Reverend Stephen Boissoin for his letter to the editor of the Red Deer Advocate. The reasons supporting the conclusion that the letter violates Alberta law are abysmal, and the penalty imposed on him absurd – a lifetime ban on expressing his sincere, religiously-founded belief that homosexuality is evil.

Understand: I detest Boissoin’s views. But giving a single human rights commissioner the power to shut you up forever because he or she thinks something you said is offensive or hateful is extremely unwise. Boissoin’s opinions contribute nothing to the betterment of society. But what about those of the next visionary with an unfashionable truth to tell?

And stifling people like Boissoin will not make their views go away, but instead underground, where they may fester, inspiring even worse down the road.

Lynch says “the modern concept of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system.” We are invited to think of freedom of expression as just another ingredient in an evolving recipe – a dash of equality here, a pinch of liberty there – for the perfect human rights concoction.

But freedom of speech is not just another human right. It has pragmatic priority, because it’s necessary for the realization of all other rights. It’s not more important to be free than it is to be equal, but you will never be equal if you can’t speak.

Consider what appear to be Canada’s latest “honour” killings, the four females from Montreal allegedly murdered by the mother, father and brother of three of them. A perfectly reasonable person might respond by saying that people coming to Canada from Afghanistan (the home country of all involved) are in greater need of enlightenment on gender equality than, say, those immigrating from Sweden. But this statement could violate the hate speech provisions of many Canadian human rights laws. Why? Because it can be seen as denigrating a group of people from a particular country by suggesting their treatment of women is problematic.

But if we cannot talk about the special problems women from Afghanistan face – as well as the usual discrimination against women, they endure culturally-specific additional dangers – how are they to get the assistance they need? Why does anyone think such restrictions on speech do the vulnerable any favours?

Besides, whatever good could possibly come of human rights commissions’ censorship is vastly outweighed by such harms and can anyway be achieved through other means. We don’t have to file human rights complaints to protest nasty speech. We can shun the source of it, demonstrate or protest, make calls, send e-mails, and so on.

Ms. Lynch should have a solid grasp on freedom of expression – which is after all a human right of profound significance. She does not. But some of her opponents make their own serious errors. For example, some seem to think that having freedom of speech in legal terms means that “anything goes.” They behave as if it’s ethically OK to be obnoxious. But it’s not.

Even if you are legally permitted to be offensive, you are still doing a bad thing – acting unethically – if you deliberately set out to harm people by your words or if you just don’t care about the “collateral damage” your offensiveness causes. There are rules for verbal combat; there is an ethics of debate.

For example, and especially relevant here, it is nearly always wrong to personally attack those who hold opinions different from yours. When done deliberately, this style of argument is dishonest because it purports to be about one thing – the public policy in question – but is actually about something else, the destruction of your opponents’ credibility or integrity.

Nevertheless, the strategy is often employed, most notoriously at present, against Lynch by Ezra Levant, lawyer, writer and blogger. Here is a small sampling of the things Levant has written about her: “Jennifer Lynch is a damned liar,” “an execrable woman” and a “pathological liar.” “What an odious woman. When she accosted me…I didn’t recognize her…She is much more haggard and old than her ancient publicity picture.”

This kind of attack, while not illegal unless false and thus defamatory (which some of this stuff might be), violates the ethics of debate because it targets a person, not the policy under scrutiny – whether the Canadian Human Rights Commission should have authority to regulate speech.  Such comments have absolutely nothing to do with this issue. Further, as soon as the reader realizes what these personal attacks are – basically, character assassination – the validity of the view that commissions should not regulate speech is undermined. And that’s a shame, because it’s by far the better position.

In her June speech, Ms. Lynch complained of such attacks: “Ironically, those who are claimin

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