Friday, June 20, 2008

'Hate Speech', Individual Liberties and the Rule of Law

Today I opened my paper with my morning coffee and read an opinion piece on the editorial page that is quite worrisome.

I was concerned in part because I had not seen any news stories about the event that the opinion piece covered. I was even more concerned about the implications of the event to our cherished western ideals of liberty and law.

The column was called "Free Speech Ends at Canada Line" by Jonah Goldberg. I cannot link the column from my paper, but it can also be found here. Goldberg's discussion is focussed on the issue of free speech and the concept of hate speech, but I believe that it has wider implications about individual liberties and the rule of law.

What happened is this. Mark Steyn, a Canadian conservative polemicist and dark humorist, wrote a book called America Alone. (I have not read it nor had I heard of it, but apparently it is a best-seller that addresses the issue of a rising radical Islamist presence in Europe and the predicted alteration of western culture that could result. Of course I'll now look into it--what is that old crack about publicity? No publicity is bad publicity). Anyway, the Canadian Magazine MacLean's published an excerpt of the book, and according to Goldberg, "now the magazine and its editors are in the dock before the British Columbia Human Rights Tribunal on charges of violating a hate-speech law." Similar charges are pending before Canadian Human Rights Commission. Goldberg goes on to discuss the implications for Steyn, Maclean's and free speech in the West if this case is substantiated. (This is not a trial and the rule of evidence does not matter--it is a tribunal capable of making judgements without evidence and can impose fines and can force the magazine to cease publishing about certain topics. Read Goldberg for more on this).

When I read the column today, it brought to my mind a concern that I have had for a long time about the concept of 'hate speech'and its effect on free speech, individual liberty and the rule of law. Although this supression of free speech is happening in Canada, the concept of 'hate speech' (and for that matter, 'hate-crime') is alive and well in the United States and has serious implications for government suppression of our freedom of speech.

Official supression of 'hate speech' is different than social approbation in that it has a chilling effect on public speech and and written expression at the level of law. This leads to the violation of constitutionally guaranteed individual liberties as ennumerated in the United States Constitution, Ammendment I:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (From Cornell Law).

On these grounds alone, consideration of laws against 'hate speech' or governmental interference with or suppression of publication and the imposition of fines ought to be looked upon with grave concern.

However, there are also serious philosophical implications involved with the establishment of such a concept for the rule of law that we ought to understand more thoroughly. The concept of 'hate speech' implies disparaging speech intended to insult, demean, or degrade another person based on status or membership in a targeted group. (A more thorough discussion can be found here). In the United States, hate speech as such cannot be regulated by the government, although there are those that would say that this is an outdated feature of the American political system. (Private organizations certainly have the right to regulate such speech on their property or in their publications, and I do not argue with that right).

My concern with the concept and its implications for the rule of law stem from the establishment of privileged groups of individuals who can receive special treatment (a chilling term to students of the Shoah) legally by virtue of membership in such a group. The Rule of Law is based on the concept of fair and impartial judgements rendered according to rules that have been established beforehand in cases argued according to fixed rules of evidence.

"The Rule of Law thus implies limits to the scope of legislation: it restricts it to...formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination."

-F.A. Hayek, The Road to Serfdom: Text and Documents (the Definitive Edition). p. 120.

The establishment of protected groups, group rights, or any other means by which some individuals or groups receive special protections not accorded to others will result in the destruction of individual liberties and ultimately, in the abrogation of the Rule of Law altogether.

Our civilization, and the American experiment for freedom in particular, are based on the Rule of Law. The loss of the Rule of Law would result in rule by fiat, by influence-peddling, and by the whim of the legislators and those who can bribe them most effectively.

Thus we ought to be concerned when we see the rule of law abrogated in the West, even if the case is being decided in another Western country. Laws regulating speech in favor of privileged groups may sound tolerant and enlightened; they are almost certainly being established with the best intentions in the world. But you know what they say about good intentions...

Disclaimer: This post is about the concepts of 'hate speech', individual liberties, and the Rule of Law. My use of the current Mark Steyn case does not imply and should not imply my agreement with his arguments in part or in full. Rather my argument is based on his fundamental right to freedom of expression in speech or in writing in accordance with Western values.

1 comment:

Amie said...

Good post (as usual).

I'm going to look into that book too.