David R. Henderson  

A Glimmer of Hope on Freedom

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In some ways, Canada has much less freedom of speech than we have in the United States. Specifically, someone can be fined, told to apologize, and prohibited from speaking on the subject again if he engages in certain kinds of speech that offends certain people. Given what's happening on American college campuses, many of which are quite hostile to free speech, think of Canada as a giant college campus.

But last week, an Alberta judge ruled against the Alberta Human Rights Panel, which had tried to fine and silence Stephen Boisson. Boisson had written a nasty letter critical of homosexuality. The judge, Earl Wilson, didn't overturn the law that violates free speech: he didn't have that power. But he did insist on due process and did find that the Human Rights Panel, ironically, given its name, had run roughshod over Boisson's rights.

Why do I find this so hopeful? Two reasons. The obvious one is that one of the main ways governments destroy freedom is that they destroy due process, whether it be by imprisoning people in Guantanamo who have not clearly made war on Americans but who have been simply captured for a bounty, or, in this case by having one person, Lori Andreachuk, do a shoddy job of collecting evidence with the apparent goal of suppressing Boisson's speech.

But my second reason is the reaction of at least some people in the gay community. Here's the headline on the relevant news story/editorial in the gay publication, Xtra:

Free speech triumphs as anti-gay letter ruled legal

And here's a segment from the story:

Gays also stand to benefit from yesterday's court decision. As we continue to face censorship -- whether it be at the Canadian border or on major TV networks -- it's in our interest to promote free speech and expression. Censoring homophobes is an easy way to shut them up, but it does little to address the outrageousness of their arguments. Speech should be fought with speech.

In 2005, queer lobby group Egale argued that open debate, rather than censorship, is the best way to address homophobia. "We believe that sunshine is the best disinfectant," said then-Egale executive director Gilles Marchildon.

Xtra's publisher Pink Triangle Press also opposed Lund's case in editorials. From a 2007 opinion piece by columnist Brenda Cossman:

"Boissoin's views are appalling but censoring them isn't the answer. Holding them up to the light of day is admittedly more time consuming, but in the long run, much more effective. And who said that democracy wasn't supposed to be exhausting."

I've long thought that one of the most effective ways to fight government attacks on freedom is to defend the rights of others even when our own rights in the particular fight are not directly at stake. As I wrote in the second last sentence of my book, The Joy of Freedom: An Economist's Odyssey:

Let's speak out when our freedom is violated and, even better, let's do the same when the freedom of others is violated.

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CATEGORIES: Regulation

COMMENTS (11 to date)
Joe writes:

I thought you wanted to ban all material you thought was pornographic?

David R. Henderson writes:

No. As the post I wrote implies, I favor freedom of speech.

Hume writes:

I am not optimistic (but I'm a Mets fan, so I dont really understand the concept of optimism).

david writes:

Some context: at the time the letter was written, Steven Boissoin was chairman of "Concerned Christian Coalition" (since renamed to "Concerned Christians Canada Inc."), apparently an influential lobby group.

If you buy into the theory behind hate speech legislation - that people in powerful positions can do harm by perpetuating a 'culture of intimidation' and so on* - then the case has some plausibility. Otherwise, not so much.

*(The best way to understand this sort of idea is to substitute the groups and ideas you consider most dangerous into the scenario. 'Imams' and 'Death to America' work for some; 'liberals' might work for this crowd. Then imagine this most dangerous entity advocating violence on you or people you know in some thinly-veiled language, to an audience you suspect to be easily influenced and manipulated, all the while secure in the knowledge that as long they don't specify any particular targets or methods, they are entirely safe.

If you still would rather have freedom of speech, congratulations, you've passed.)

Dave writes:

Mr Henderson

Thanks for comparing Canada's PC speech codes - and the resulting issues - with those surrounding the detainees held in Gitmo by the US.

I guess its just too hard to resist using an article about Canada's deplorable lack of freedom of expression to bash the US policy of detaining enemy combatants in Gitmo.

Please tell me who is being held who has not clearly made war on America?

I have found most Canadians feel they are morally superior to Americans; however, when the topic of the Canadian government's fascist speech laws - that are reminiscent of the dark ages and the Inquisition - is raised Canadians always find some need to change the subject.

Gitmo simply has nothing to do with Canada's undemocratic and Stalinist speech codes. Please stop comparing the two.

Bob Murphy writes:


If you don't mind, can you clarify exactly which people are subject to the law, and what the penalties are? I must admit I'm naive--I thought the only thing like this in the Western world was the anti-Holocaust-denier laws in Germany. (And of course I'm referring to explicit statutory limits on what you can say; obviously there are de facto speech codes all over the place.)

David R. Henderson writes:

Re who is being held who did not clearly make war on America, I suggest you follow the link I provided.
And I didn't compare the two. I simply gave them both as examples of government denying due process. They are.

Ditto on links.

SydB writes:

I recently read "Kindly Inquisitors: The New Attacks on Free Thought" by Jonathan Rauch. He strongly argues against any and all speech restrictions (such as those that exist on campuses). In particular, he argues that the university is supposed to be THE place in which ideas can be debated. Once we had power to the censors for speech which most of us can all agree is hateful, that power will be used to censure speech that is simply inconvenient to those with the power to censor.

CJ Smith writes:

@David R. Henderson:

Great post except for one minor issue - I don't think denial of due process is either the issue or the cure to restrictions on free speech.

Due process as I understand it is affording the person subject to the law fair and equal treatment compared to others subject to the law (substantive due process) and full access to avenues of judicial review (procedural due process). The Supreme Court used to erroneously conflate "denial of substantive due process" with many results oriented decisions, but has receded from that position in the face of arguments for judicial restraint and restrictions on "penumbral expansion of Constitutional rights not found in the plain language of the Constitution."

In both the cases you cited, due process is as best a collateral issue. Canadians are offered full access to the court system (procedural due process) and are treated the same as anyone who engages in "hate speech," thus satisfying substantive due process. To avoid the argument that "hate speech" is equivalent to "free speech", the courts rely on the old maxim, "Freedom of speech does not mean the right to scream, "Fire!" in a crowded theatre." In other words, freedom of sppech is not an absolute, but can be constrained when the constrain is reasonable in relation to the government's goal - in this case, peacekeeping. I'll refrain from a detailed description of the various levels of balanceing tests in different substantive due process cases - the rational relationship test is the most frequent balance in the U.S. courts. I have no information whether the issues and balancing tests are the same in Canada.

Gitmo detainees are also supposedly not denied procedural or substantive due process, at leat according to the Bush and Obama administrations. As "enemy combatants" not on U.S. soil, they are not afforded the protections offered U.S. citizens or foreign national on U.S. shores (also one of the prime arguments for extraordinary rendition to countries that allow torture). Instead, the courts have held that they are entitled to minimal procedural due process, afforded them by courts martial, and minimal substantive due process, basically limited to common law rights of mandamus and habeas corpus.

While I don't agree with either position, those tend to be the arguments in favor. In each case the problem is that "freedom of speech" is constrained by law prior to application of due process.

David R. Henderson writes:

CJ Smith,
Your thoughts about free speech and due process are (mainly) well taken. They also don't contradict anything I wrote.
Why "mainly" rather than completely? Check out the "fire in a crowded theater" reference: which Supreme Court justice used it in which case. As I said in a talk on this issue: it seems to me there was a fire.

CJ Smith writes:

@ David R. Henderson:

Thanks for the complement and excellent observation on the Schenck case.

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