I don't think our society is more racist than other countries which ban hate speech. We are closer to a tyranny, but I don't see a causal connection from allowing the hate speech.

We have an absolute conception of free speech because it's the right thing to do, not for any utilitarian calculation of slippery slope coefficients.

but we have now several countries with a softer commitment to it and, frankly, we've come a lot closer to tyranny lately than they have

I'm not so sure about this. I'll wait for some of the UK commenters to mention any Muslim clerics who have been imprisoned for "hate speech", since I've pretty sure there have been but I can't remember the details to dig them up.

Also, the idea that adults can deal with some asshole claiming the Holocaust never happened without imprisoning them is worth a lot to me.

I didn't mean that there was. Just that the "well, we would never succumb to tyranny" argument is a bit thin.

One way we avoid succumbing to tyranny is to maintain pride in our commitment to free speech. This post isn't helpful in that regard, and should be censored.

I think it shows that there are two routes to tyranny: the sophisticated European one, that involves charismatic leaders hectoring their followers into hatred of the Other, and the naive American one, which involves blundering into tyranny because you're so goddamn stupid.

I am an immigrant but also a student of George Anastaplo, and through him of Alexander Meicklejohn, and believe that much modern 1st Amendment doctrine is based on mistaken premises. In brief, I feel the expansion of the right to include broadcasting, "expression," commercial speech, and "political expression" i.e. no limits on campaign contributions have served in many ways to undermine freedom, and that other democracies which have not fetishised the constitutional aspect of free speech have more of it.

The advisability of certain speech restrictions seems pretty situation sensitive to me. A ban on holocaust denial in post-war Germany (and maybe France, even) seems not unreasonable to me and perhaps needed to ensure that democracy could take hold. It doesn't seem at all needed in the US so would be a bad idea. Where many other countries really do go wrong is with their libel laws, basing them on a UK style system that really does discourage open discussion. Laws like this have been used widely in Russia, for example, to shut down opponents of the government, and not just under Putin- it was very common under Yeltsin, too. (Though it did lead to one of the great turns of phrase, the discussion on tv news there of a tape showing "a man strongly resembling the prosecutor general" having sex w/ prostitutes in a banya.)

And yes, we are closer to a tyranny than many European countries, but look at how apeshit the UK and Spanish governments went over attacks that paled in comparison to September 11. I believe American law on imprisoning citizens is still more liberal than the current ones on the books in the UK (though I could well be wrong on this).

I think we had to deal with an attack that hasn't quite been matched among the European countries, so there is no good comparison. Further, I think our commitment to free speech has helped keep us further from tyranny than we would be otherwise, if only because free speech is still more or less supported. Wright's YouTubed commentary against the US may be the cause for overwrought alarm here, but they could be considered reason for detaining someone elsewhere (especially if he were muslim).

IDP: That is a reasonable point, but I think it's completely distinguishable from the kind of unrestricted free speech Ogged has in mind. (Unless you are a libertarian of course. Then the idea of any restriction on the ability of rich people and corporations to dominate the airwaves is an intolerable violation of human freedom.)

2 gets it right.

Laws regulating speech and assembly are a powerful tool in the hands of repressive governments. In circumstances where a country slides towards tyranny, a government with feeble tools will move less effectively than a government with powerful tools. I think that ceteris paribus is the way to think about government constraints and powers.

It's difficult to compare the US, with 300M people and little history, to much smaller european nations which are more homogeneous in part because of longer histories.

Ogged just doesn't understand that all the important political questions* were answered in their final form by the Founders.

* except slavery.

I know of no country in which there is so little independence of mind and real freedom of discussion as in America.

America is the country where a man has the freedom of speech and the good sense not to use it.

You have the right to free speech, as long as you are not dumb enough to actually try it.

Ooh, a public service announcement with guitars!

So what are the prudential or slippery slope arguments in favor of the American conception of free speech that take into account the experience of these other countries?

This is "how does America differ from countries in which greater legal restriction on the content of speech is permissible, such that it pragmatically worse to allow such restrictions here"?

In America, everyone is free to speak their minds just as anyone can start an automobile company or sleep under the bridge. The "free market of ideas" is as efficient as the "free market for labor" in benefitting capital and elites. Without the government actively attacking and dissolving concentrations of wealth, power, attention, tyrannies will naturally and inevitably arise.

2, seconded.

5 is awesome.

ogged, as bad as things are, we're still very far from tyranny today. Consider the fact that the would-be tyrant is almost certain to be gone in 221 days, just for starters. *

That's due in some part to our commitment to free speech. Vicious hateful petty bastards in a government that felt less constrained by the American love of free speech would be disappearing people, poisoning journalists with Polonium, shit like that. As lw points out, our vicious petty bastards have feeble tools. (ahem)

* Are any of the prediction markets trading in "Bush doesn't relinquish the office on schedule", by the way?

"Right now I think censorship is necessary; the things they're doing and saying in films right now just shouldn't be allowed. There's no dignity anymore and I think that's very important. "

Without the government actively attacking and dissolving concentrations of wealth, power, attention, tyrannies will naturally and inevitably arise.

Attention? Bob, we all hate the popular girls because they're beautiful, but I wouldn't sic the Justice Department on them.

* Are any of the prediction markets trading in "Bush doesn't relinquish the office on schedule", by the way?

I think McCain is trading around 41%, actually. Bush is just a figurehead.

19:Probably should have been "monopolies & tyrannies will naturally and inevitably arise" to make the allusion to Smith more clear.

25: One might point out that a government attacking and dissolving the associations and agreements of citizens is a mark of tyranny.

23:My first choice was "eyeballs". I was thinking of BBC-2 or whatever, the active effort of Europeans to support alternative voices; the old equal-time provisions, stuff like that.

1) Break up concentrations of media as you break up monopolies & cartels; 2) pro-active efforts to enhance competition.

We don't need to censor Iran hawks;we do need to be sure there are Iran doves given equal access to the airwaves.

But my point was closer to one of ogged's topics: how freedom leads to tyranny in America.

I just came from a discussion of Polyani at Thoma's.

26:WTF? Time-Warner buying Comcast is I suppose an "association and agreement of citizens" but I never would have thought you were so completely laizzes faire, flippanter, as to advocate no restrictions on monopolistic concentration. Wow.

and that other democracies which have not fetishised the constitutional aspect of free speech have more of it.

In general, I agree with this. Likewise, I would argue that other democracies which have not fetishised separation of church and state actually have far less of religion in politics (but I'm still all for separation of church and state in America because of the wingnuts, of course).

These new Canadian hate speech laws make me very nervous, though. Basically, a bunch of namby-pamby do-gooder bureaucrats (= provincial human rights commissioners) get to decide on what constitutes "hate." That seems wrong in principle, and also creates too many opportunities for unwarranted censorship.

26 is a classic Cato or Austrian formulation. But one they only have the nerve to speak in private.

creates too many opportunities for unwarranted censorship

This is the standard argument, right? So what I'm asking is, are there a bunch of examples like this? Or is it a slope that's not so slippery? Or maybe we won't know unless there's a crisis of some sort in one of those countries. (Russia doesn't count, obviously, Hamilton.)

Free speech in Poland has taken unexpected forms.

I'm not sure how one measures how close a nation is to tyranny. So I'm not sure how to go about deciding who is closer.

But here's a slippery slope argument for you with bonus American exceptionalism, toward the situation as it now stands. The article points out that many countries have an interest in banning certain forms of hateful speech because the country in particular has had a bad time with previous results of that hateful speech. It seems understandable why Israel isn't going to tolerate anti-Semitism.

But if their history can justify their ideals, ours can justify ours. And given the prominence the ideal of free speech has in the U.S. currently, if we were to give that up, it would be a sign that we were in far worse shape with respect to liberty than a comparable restriction on free speech would in other countries.

So, yeah, here, if you give up a strong commitment to the right of free speech, you are on the way to tyranny because it means you've given on the Constitution, and that matters a lot here because of the importance that the Constitution has here; it doesn't work the same way in other countries because they have different histories.

"... you're well on the way to tyranny, but we have now several countries with a softer commitment to it and, frankly, we've come a lot closer to tyranny lately than they have. ..."

The countries you are thinking of are to the left of the US politically and so tend to restrict speech in ways you find congenial. I suspect you would find speech restrictions in the more right wing US more bothersome. How do you feel about free speech restrictions in Singapore? And I don't see any objective basis for asserting that the US has come much closer to tyranny than countries like France or Italy.

As nonfamous matt points out above, there's some really egregious stuff going on with UK libel law.

34: I'm not so sure about the French, but I hereby endorse all of James B. Shearer's other conclusions.

31: Off the top of my head, the only examples I can think of had to do with crazy Holocaust-denying anti-Semites (Ernst Zundel is one name, I can't remember the other). I think Zundel was actually jailed (and then shipped off to Germany or something). Did Canada fall into tyranny as a result? No. So perhaps the slope is not all that slippery. I honestly don't think of the US as "more free" than Canada overall, and some of the differences in speech (Canadians having a "weaker stomach" is how one guy describes it in that NYTimes article) probably have more to do with cultural differences than with legal/constitutional issues. But it just seems wrong to me that Maclean's has to go before a human rights tribunal to defend their publication of a contentious (and probably stupid) article.

It's not that I'm afraid of political tyranny as a real possibility, it's more that I'm irked by certain aspects of the Canadian bureaucracy, and object to giving them too much power if only because I find them so irksome.

31:Two of the best examples of speech restriction have real effects I can think of are the socialist/anarchist repression under Woodrow Wilson and the McCarthy era. In combination they set the limit of progressive discourse in America and determined the marginal safety-net capitalism of the 20th century. As opposed to the social democracies of Europe.

The 1st Amendment didn't get in their way.

Pwople, maybe especially Americans, worry about the LAW too much. A first amendment won't help in a country repressive for other reasons; and England isn't going to become Franco's Spain because of the Official Secrets Act. It just doesn't work that way.

Interesting article about the fact that America is almost alone in the world in having a nearly absolute commitment to free speech

Perhaps this is why America is so much more awesome than everywhere else?

As w/d and (I think) lw suggest, there are likely a lot of differences between the US and Challenging Country X that matter, and, absent a lot of knowledge about Challenging Country X and the US, we probably can't take those differences into account. Moreover, we have the norm we have and it has worked out pretty well so far. Why seek more restrictions in the absence of any evident need to do so?

Muslim busted for running anonymous blog.

The way this works is that there are lists of undesirables maintained somewhere, and when necessary, the troublemakers get rousted. It's rarely headline news, the same way that any one driving-while-black traffic stop is not headline news. How did Savak let publishers know where the boundary of the permissible was?

37: Canada's like the U.S. except where it is like the UK. It's it's own thing. And shivbunny, as an Albertan, sometimes finds this maddening (since he sees it as Ontario-driven), and the stock response around here is 'babe, if you wanted [the Queen off your money/not to call it Crown land/etc, you needed to have a proper revolution.'

it's more that I'm irked by certain aspects of the Canadian bureaucracy, and object to giving them too much power if only because I find them so irksome.

Welcome to Reagan's Democratic army. It's amazing how much more important--at least to me--ease of compliance is than the substance of requiring compliance.

And given the prominence the ideal of free speech has in the U.S. currently, if we were to give that up, it would be a sign that we were in far worse shape with respect to liberty than a comparable restriction on free speech would in other countries.

No it would be a sign the tyranny, or necessary conditions for tyranny, were already here.

Look if the majority give up on free speech in an active position, the minority ain't gonna save it. The good guys couldn't stop torture.

McCarthyism just sorta faded away with time.

33.3 sounds right to me. I'm not outraged by, or even deeply worried about, the Canadian hate speech laws, though I basically don't support them. Those same laws in an American context would truly scare me.

Perhaps this is why America is so much more awesome than everywhere else?

Would that it were so.

More seriously, given the difference in theoretical free speech approaches in US & Canada, it would be interesting to see if in practice the US has actually been more free in this respect. I doubt it, based only on living in both places, but that's just anectdotal.

41: Alberta has its own brand of weird, too.

I guess the addendum to 45.middle is that, even if you could definitively answer this, it would be hard to say how much of it is due to law, how much to culture.

I just keep wanting to remove the 'y' every time anyone mentions 'tyrannies'

I want to change the 't' to a 'p'. Let's talk mountains!

Canadian hate=speech laws aren't a general threat to freedom for a lot of reasons having to do with who Canadians are.

The Patriot act is not a threat to freedom, either. It could be enforced or ignored, like sodomy laws. The threat to freedom is in the enforcement and jurisdiction, in the permission of Americans to allow yyrannical acts. If that permiossion exists, the Patriot Act isn't really needed. Lawrence did not free any Americans except in a very few marginal cases. It simply ratified the facts on the ground, expressed the already existing majority sentiment.

The Patriot Act was a sign that tyranny was close to acceptable, at least symbolically. Because of who Americans were after 9/11.

It's those three "illiberal" axes again. Hearts & minds create freedom, and the fairness & justice are just the expression.

bob mcmanus gets it exactly right.

We have the rule of law in this country, in that we have laws which state that nobody is above the law. However, if the president violates the law, he is not punished.

A paradox! Which do I believe, the reality or the theoretical reality?

Also, #7 makes a good point. In my experience, the difference between the US's right to free speech and other countries' consists of two elements:
A) People cannot be thrown in jail for being bigots
B) Every national politician is in an infinite amount of debt to the richest 0.1% of the population and the multinational corporations, because he relies on their "donations" to have enough money to run for office.

Bob's on to something here:

The threat to freedom is in the enforcement and jurisdiction

It seems to me that you can make a colorable argument that America needs stronger formal legal protections on free speech, because it has stronger moralistic tendencies than comparable rich-world democracies.

I never understand this security or insecurity people get from the LAW, because I remember Debs and the Hollywood Ten going to jail. And hell, Gitmo.

The detainees may get released from Gitmo, but it have more to do with Obama, Congress, the mood of the people and external events than statute, precedent, and the judiciary.

Another big terrorist attack and they will probably live out their years incarcerated, and all the work of Katherine & CC will be for naught.

It has been said that liberals don't like politics.

It has been said that liberals don't like politics.

I kind of think that's true, and I kind of think that the affect is a weird winner's curse.

OPENING THIS BLOG GIVES YOU A REALLY BAD COMPUTER VIRUS!!!

There's an awful lot of open space between "Outcomes in the legal process are completely independent of external political forces" and "The content of the laws doesn't matter." Everything makes a difference at the margin, and those margins really add up.

Restrictions on free speech degrade a nation's political culture (and its culture tout court) in ways that fall well short of "tyranny". It's not just the slippery slope we need to be worried about: it's the chilling effects, the unjustly suppressed cultural products, the abuse of the legal system for the strong to punish the weak.

Look at Turkey, where advocating Kurdish autonomy is prohibited (on grounds that seem eminently reasonable to a majority of Turks). Or look at Germany, where the restrictions on anti-Democratic parties (which many here seem to find justified under those circumstances) have been used to exclude left-leaning individuals from public employment (which includes most tertiary and almost all secondary teaching positions).

First amendment jurisprudence in the U.S. has evolved a lot over recent decades, so we can assess the results in historical comparison. Guess what? We're a better country now that libel suits by public figures are practically impossible. We are a better country now that labor organizers can no longer be sent to jail for encouraging war production workers to strike. We are a better country now that the publication of Lady Chatterly's Lover can no longer be banned as obscene. Hell, we're a better country because you can rent porn DVD's.

Everyone here understands that any power we entrust to government is in constant danger of being usurped by the wealthy and the powerful for their own ends. Why should the power to restrict speech be any different?

In other words, what Sifu said in 2.

Sorry for the misattribution, Walt.

What's amazing about this thread is that a bunch of smart, informed people have come up with basically one decent justification for strong free speech rights (Cala's contextual argument about what abrogating those rights would mean in the US) and even that is hardly a principled stand; just that here and now rolling back free speech would mean bad things. The rest either compare the US to countries that aren't western-style democracies, or just list good things about free speech, which isn't the same as weighing the bad things about free speech against the good.

As for tyranny, I think I put that badly and confused the issue. Nevermind tyranny.

Wasn't there a recent-ish Crooked Timber post about restraints on speech by one of the Europeans there that all the Americans thought they were misreading, because they couldn't believe the argument was in earnest? Anyone know the one I mean?

56:I am taking an extremist position that doesn't completely reflect my views. Laws can protect individuals when the majority is indifferent, and can make the acceptable more orderly.

But I can imagine a law book that traces the history from Ulysses thru Tropic of Cancer Fanny Hill thru Lady Chatterly (whatever the exact order) I am Curious etc as if what happened in the courtroom was the determining factor.

But it wasn't. I am really not sure why we started getting nudity in the late 60s and then all the Hayes code gone (and there is more history than this) and then porn, but the law followed not led.

And I strongly suspect there are still state laws on the books that could be enforced.

What's amazing about this thread is that a bunch of smart, informed people have come up with basically one decent justification for strong free speech rights

WTF? Did you even read 56? Countries that restrict free speech suffer for it, and the individuals thereby affected suffer even more.

I will put on my American exceptionalist tunic and argue that the UK would be a better country without the official secrets act and strict libel laws, that Germany would be a better country if it permitted anti-democratic speech, that France would be a better country if it permitted hate-speech. And obviously places like Egypt, Saudi Arabia, Russia, and Singapore would be better countries if they permitted criticism of the government.

I am taking an extremist position that doesn't completely reflect my views.

Lordy me. I never heard of such a thing.

59:

It's come up a couple of times. This is probably the most recent post on the subject.

WTF? Did you even read 56?

56 is what made me think, "man, is this the best we can do to defend free speech?" Yes, there are things that are better because of a commitment to free speech, but we haven't really considered the Canadian/European view that free speech can also get you a lot of racist and sectarian hatred, and generally poison the well of shared civic space, to put it clunkily.

Mimonia would be better if it allowed speech at all.

It's come up a couple of times. This is probably the most recent post on the subject.

That's the one. Thanks, bizzah.

58:I did make an argument for gov't interference in the speech arena (?) but I do have trouble justifying censorship, I am an American.

What if, what if, a fullblown out Nazi bought the Fox News Channel, and was spewing anti-semitic eliminationists rhetoric 24/7 to millions? Well, FNC audience isn't millions, an they would lose most of those, but I can imagine a return to the equal time regimen.

We are better. We remember McCarthy and Skokie, at least those old enough. We have almost forgoten Turner, Goldman, Debs. God bless Warren Beatty.

64:that free speech can also get you a lot of racist and sectarian hatred, and generally poison the well of shared civic space, to put it clunkily.

Are you still having dreams about Clinton?

Outa here.

64. But Ogged, are you so sensitive as to not be able to withstand the offense of listening to said racist/ sectarian speech. "He hurt my feelings" is no reason to put someone in jail. In the free exchange of ideas, the ones with merit stand out, and the crap falls by the wayside. I suspect that there is a reason why that particular Amendment is first.

but we haven't really considered the Canadian/European view that free speech can also get you a lot of racist and sectarian hatred, and generally poison the well of shared civic space, to put it clunkily

Where's the evidence that legal restrictions on free speech prevent or remedy the harms they are supposed to address? Where is the evidence that any benefit, if it exists, outweighs the backlash, the chilling effects, the abuses of justice, and the other well-documented harms of restricting free speech?

Tolerating free speech does not "get you racial hatred". It is a symptom, not a cause. And the marketplace of ideas in late 20th century western industrial democracies has a pretty track good record of marginalizing racist discourse, which is more than can be said for hate speech laws.

are you so sensitive as to not be able to withstand the offense of listening to said racist/ sectarian speech. "He hurt my feelings" is no reason to put someone in jail

That's not really the issue. One possible question is whether we'd be better off not portraying various groups in, say, movies, as prone to criminality or violence or terrorism. Even the European-style restrictions don't leave the issue of speech restrictions up to an executive; they're narrow and built into the law. So we don't get to compare America with Iran; we have to compare it to a roughly similar polity with a slightly softer commitment to free speech.

Where's the evidence that legal restrictions on free speech prevent or remedy the harms they are supposed to address? Where is the evidence that any benefit, if it exists, outweighs the backlash, the chilling effects, the abuses of justice, and the other well-documented harms of restricting free speech?

Yeah, good questions. I was hoping the Europeans could weigh in on this and tell us whether they think things are better or worse for banishing certain kinds of talk and writing from the public sphere.

One possible question is whether we'd be better off not portraying various groups in, say, movies, as prone to criminality or violence or terrorism

Having the censor tell the director to cut the scene because it is offensive does nothing but make the movie shorter, probably a net benefit. Having the critic write in the paper that the scene is offensive lets everyone know the director is an asshole. I believe the latter leads to a more open society.

I haven't read the linked article, so I'm speaking out of turn, of course. That said, my understanding of the rationale behind the banning of certain types of speech, particularly hate speech, is that they're actually speech acts, with consequences we can indicate: incitement to violence, etc. The underlying argument, as I understand it, is that we may declare only certain acts illegal.

Any theoretical case for a blanket and unrestricted freedom of speech would therefore have to take the position that no form of speech constitutes an act, so is out of the realm of possible things to be outlawed. Words can't hurt people.

That falls on its face pretty quickly. What we have now is ostensible free speech with an extraordinary amount of extra-legal control -- what Knecht calls the marketplace of ideas -- over what people are free to say. And we do fret over the justice or injustice of the judgments handed down by that marketplace.

Tolerating free speech does not "get you racial hatred". It is a symptom, not a cause.

I'm pretty sure this is either wrong or else only partly right. I mean, yes, there has to already be some racial hatred in order for racist speech to have any resonance. But I also believe that racist speech can actively create more racial hatred.

Maybe the "marketplace of ideas" can correct for the racist speech through the circulation of anti-racist speech...but I really think the issue is more complex than you're allowing, in part because you're not acknowledging that some groups have more power than others, and more access to the airwaves, and also that majorities can and often do abuse their power to oppress minorities. It's not always about the individual in relation to the government, after all. The speech laws (which I don't even support, but I can't agree with the absolute free speech position either) are mainly about protecting less powerful groups against the tyrannical impulses of more powerful groups.

Ogged, have you any answer at all for 34? Like anything else, speech restrictions put in place by someone who thinks just like you will seem relatively harmless in practical effect, sure, and will likely reduce some speech you find harmful (which seems to be your only claim). In some sense I'd love to see a ban on speech by persons named Michelle Malkin, for example. And that's your European model. But let's put Pat Robertson in charge of the Ministry of Censorship and see how much you like it. And since you never know who's going to be at the controls in the future (and especially since speech plays such a crucial role in determining exactly that), any sort of restriction on speech is bad news.

But Mary Catherine the "marketplace of ideas" is effective. Do you think that Gettysburg College was helped or hindered when it was ridiculed for its restrictive sexual harassment code? http://www.humanevents.com/article.php?id=15463

The quickest way to end an argument is to call one's opponent "racist" or "sexist, thus Godwin. (Or more accurately the first codicil http://en.wikipedia.org/wiki/Godwin's_law)

58: Well, 'because we're the fucking United States of America' has been deprecated, and 'why fuck with things that are basically working when we have an administration that thinks it can jail people until they die without trial' lacks a certain something, and all the rest of the arguments are philosophy 101.

One possible question is whether we'd be better off not portraying various groups in, say, movies, as prone to criminality or violence or terrorism. ... So we don't get to compare America with Iran

Isn't the sort of free-speech restriction you float here more characteristic of Iran than, say, Germany ?

70: KR, I'm not sure of the answer on this one. One thing that makes me wonder though, afiact over the last 40 years or so Canada has if anything a better de facto record on free speech, despite the existence of hate-speech legislation. How much of this is the legal stricutures, how much culture, I dunno.

And, more seriously, to 58, you didn't ask in the post for a justification of free speech, you asked for 'prudential or slippery slope arguments...' which is what you got.

Lack of free speech rights may be a factor influencing the risk of turning into a tyranny, but it is not the only one. I'd say that America's disproportionate military might and our non-infrequent use of that might to influence events on the world stage puts us at greater risk of turning into a tyranny than the average country, and we can thank our strong free speech rights for keeping us free. (Can you imagine if we had China-style rules in which you could be imprisoned for questioning the state's foreign policies or military actions?)

Other countries don't "need" strong free speech in this particular way, because they don't take a big enough role on the world stage to engender much criticism to begin with. Even so, you can look at plenty of other countries around the world and see what happens when free speech rights are not respected. It ain't pretty.

The CT link in 63 demonstrates one way that Brock's scenario plays out. The blogger, Chris Hedges, posits that guys whose speech is like James Watson's ought not be punished by hate speech laws, because he's a "scientist."

Mind you, Watson wasn't speaking as a scientist within his specialty, nor were his remarks scientifically valid. But he's a scientist.

The U.S. marketplace of ideas has had mixed results with Charles Murray, and god knows putting the worthless fuck in jail would be just deserts. But hate speech laws look to me like just another way of discriminating against out-groups and privileging folks like Murray and Watson.

21: ogged, as bad as things are, we're still very far from tyranny today.

No, you're not. Your government does disappear, arbitrarily deport and arbitrarily imprison people, for example. Also, "near-absolute commitment to free speech" has not prevented the proliferation of "National Security Letters" allowing unchecked search and seizure to be protected by gag orders, or massive surveillance programs designed in part to undermine public confidence in protected (or even private) speech. The current gang of criminals isn't confident enough in their new powers to act with the degree of impunity and brass you see in Russia, but that's not really saying much; if they do go gently into that good night (and I'm not convinced they will), it will be because this time around they lacked the nerve to go balls-to-the-wall with the tools they created.

A large part of the political power that buttressed this authoritarian turn came, of course, not only from the consolidation of the media in a very few ultra-rich hands, but also from the ability of the right to poison public discourse with largely unrestricted lies and hate speech. I for one am glad to see Canadian Islamophobes being called on their bullshit, for all they might yelp like scalded dogs; they deserve to be called on it, they're exactly why hate speech laws were invented.

82: I don't think anyone would argue with fact there are examples where this had gone badly. The question is more: is it strictly an all or nothing proposition, or not. To use the example again of Canada, that's a country with a narrow legislative constraint on `hate speech'. However, at least in my experience there is even slightly more cultural emphasis on actual freedom/tolerance of speech (in other words, I have experienced more cultural/social pressure to constrain speech while living in US than living in Canada, all anectdotal though, hence my hesitance to infer too much).

So the question: is there a very real slippery slope, and it's just luck so far that has kept Canada from sliding down it, or is is plausible that some particular constraints can be found that do not undermine other aspects of speech.

It's an interesting question anyway, and one that typically seems to be taken on faith more often than examined.
I think it's pretty clear that looking only at the law as written is pretty useless (e.g. McCarthy)

I can live with being mistaken for Sifu. He's a sexy motherfucker.

I know that you're looking for a utilitarian justification, Ogged, but I think the justification is deontological. Preventing neo-Nazis from publishing their pamphlets is in of itself not a legitimate task for government. I can imagine scenarios where I would think otherwise (Bob's "Nazis take over Fox News and call for mass murder" scenario, for example), but within the realm of normal speech, I'm happy with American absolutism.

85.2: I think the answer is pretty clearly that there is no slippery slope, and hate speech laws are perfectly compatible with a strong commitment to free speech. If the answer were otherwise, tyrannical government would correlate to some extent with hate speech laws.

Couldn't resist de-lurking here, as this is a topic I'm quite interested in. I'm a German lefty, and a bit of two minds about these things:

On the one hand, I am a big proponent of "fascism is not an opinion, it's a crime", and I do think it is a good thing in general that, e.g., Neo-Nazis are not allowed to carry around Nazi flags during public demonstrations in Germany. And at least in the case of Germany and maybe Austria, these restrictions have, I would argue, really "worked".
To give an example of where more restrictions might have been better: The German courts have since the early 1990s or so relaxed their jurisprudence on Neonazi marches, and Neonazis have reacted by launching a campaign of public marches almost every weekend, as a strategy to make their appearance in public - and by extension their politics - appear somewhat more "normal". And as far as one can tell, it has worked quite well for them - people have sort of become accustomed to Nazi marches etc., despite all kinds of pleas by liberal and conservative politicians that "these marches should just be ignored, than the problem will go away".

OTOH, KR, Brock and Bob get it totally right too: If the law says that "every opinion is entitled to equal respect" - and that is what it says in the German constitution -, then any attack on Nazi speech is sort of an attack against free speech generally. In other words, a government that professes to treat all speech equally, but that quite severely restricts Nazi speech, may also be more willing to restrict other speech it does not like - in fact, that's what a bunch of Christian Democrat politicians proposed the last time the legislation on holocaust denial et al was extended.

Pwned by DS on the corporate ownership of the media angle. The "marketplace of ideas" isn't going to tend toward a more free and open society if most of the market shares are owned by Rupert Murdoch.

Some of these absolutist arguments seem to imagine a Thomas Paine standing up for the rights of man against the tyranny of King George, and restrictions on speech are almost always conceived in terms of limitations on one's ability to criticize the government. But that's not what these Canadian hate speech laws are about. Again, these laws are not about restricting citizens' rights to criticize the government, they're about protecting minorities against majorities. I don't like bureaucrats (human rights commissioners, that is) deciding these questions, because I fear they will rule too broadly, and be too inclined to equate ugly, hateful speech with "incitement to hatred" speech. But having read some of the absolute free speech comments here, I realize that I'm more supportive of the Canadian model than I had suspected.

That said, I agree with Cala about the rightness of the American model for America. It's just that Americans are wrong to think that everyone else is wrong and they're the only ones who have got this right.

I had to memorize a Thomas Paine bit in school.

The rightness of the American model for America is what? That anything less than unrestricted free speech constitutes a dangerous slippery slope ... in America?

That may be true; could certainly be argued. How would that go? That as soon as someone's in charge of outlawing certain forms of speech, there's too much danger (here) of it being abused ... because (here, specifically) ... what? Because we're such a melting pot? Because we tend to have a majoritarian government? I'm not sure what the argument would be.

If the answer were otherwise, tyrannical government would correlate to some extent with hate speech laws.

Real Americans know that tyrrancial government correlates to gun guntrol.

Again, these laws are not about restricting citizens' rights to criticize the government, they're about protecting minorities against majorities.

Or "protecting minorities against insults."

That anything less than unrestricted free speech constitutes a dangerous slippery slope ... in America?

It has to do with the political culture, I guess, and also with the politics of resentment. White males are an "endangered species." Christians suffer discrimination at the hands of liberal secular humanists in the public sphere. The "war on Christmas" is an assault against an increasingly beleaguered minority. In the Canadian context, I am reasonably confident that laws designed to protect vulnerable minorities are not going to be subverted from their aim and used by majorities to trample upon minorities (though I don't like the bureaucrats, and I do worry about over-broad interpretations). In an American context, I worry about who gets to claim minority status (creationists, e.g.?), and on behalf of what. Are there people/groups in Canada who make outrageous victimization claims on behalf of those who actually yield more social/economic/institutional power? Of course! But they're outside the consensus, mostly, and they never seem to achieve critical mass.

On a more positive note, there's obviously a very important and specifically American tradition of free speech as foundational of political liberty. That tradition is all tied in with all kinds of things that I want to support. I don't always agree with the ACLU on this or that case/issue, but I have to be pro-ACLU for all kinds of historical and contemporary reasons.

DS misses the point entirely in 84. Banning people from ever uttering a critical word about Muslim extremists is not "calling them" on their alleged "bullshit"; it's using the force of the state to gag them against their will, which is not the same thing at all. If anything, this sort of heavy-handed and immoral state action will make martyrs out of those so silenced, while doing absolutely nothing to show that anything they have said is untrue.

Banning people from ever uttering a critical word about Muslim extremists

You've got a bit straw in your teeth, Gaijin.

I haven't had a reason to look at 'fighting words' in a long time -- can one of the younger lawyers fill us in on where this thing is these days? Is Chaplinsky (sp.) good law?

Real Americans know that tyrrancial government correlates to gun guntrol.

This is funny, except that, in the context of gswift's other comments, I'm not sure he's joking.

Maybe the "marketplace of ideas" can correct for the racist speech through the circulation of anti-racist speech...but I really think the issue is more complex than you're allowing, in part because you're not acknowledging that some groups have more power than others, and more access to the airwaves, and also that majorities can and often do abuse their power to oppress minorities.

I would just note that this sentence stands in unresolvable tension with what comes next:
The speech laws...are mainly about protecting less powerful groups against the tyrannical impulses of more powerful groups.

The problem with opening the door to political regulation of acceptable speech is that some groups *are* more powerful than others, and more often than not, it is they, and not the powerless minorities, who will control the levers of state.

If we opened the door to regulating "hate speech" in the U.S., we are as likely to see the law target malicious blasphemy or sacrilege than, say, fag-bashing.

Bob, about your #60 and the progression of formerly taboo stuff going public: I recall reading some years ago that a lot of that is a side effect of consolidation in distribution systems for various other kinds of commodities. Truckers, warehousers, and other involved folks started with it more or less just to fill space, and any money made on the side was just dessert. From there it boomed, and quickly became a part of the expected income for a lot of businesses that are very much part of the staunch Republican constituency.

But I thought I had citations for this, and I'm not finding them.

in the context of gswift's other comments, I'm not sure he's joking.

It's like you people don't take Red Dawn seriously.

94.1: Right, so the danger of such a thing in America is that ... our legislative bodies are too likely to be swayed by what might be called special interest groups. Whether those are corporate interests or the religious right; they have the power to impact the consensus.

You've got a bit straw in your teeth, Gaijin.

And you're splitting hairs, D. Canada's "hate speech" laws are broad enough to encompass perfectly reasonable criticism and journalism. And beyond that, Canada recently demanded a pastor stop all "disparaging remarks about gays and homosexuals". That's pretty much the same thing as "banning people from ever uttering a critical word" in my book.

If the punishment for Canada's so-called "Islamophobes" was much different from this, I stand corrected in this one case. But you can rest assured such blanket bans are on the table for next time.

Canada recently demanded a pastor stop all "disparaging remarks about gays and homosexuals". That's pretty much the same thing as "banning people from ever uttering a critical word" in my book.

Your book is silly.

Another problem with German/Austrian style regulation of political association (which is a close cousin of regulating speech) is the necessity of drawing binary distinctions between legal and illegal speech, which, implies a sort of official imprimatur for any organization that is not banned. The Republikaner and the Deutsche Volksunion won considerable legitimation when the Office for the Protection of the Constitution declined to ban them, after having devoted considerable bureaucratic resources to vetting their speeches and publications. "Verdict: Not Nazis!" doesn't sound like a resounding endorsement, but in that context, it was quite a victory.

If we opened the door to regulating "hate speech" in the U.S., we are as likely to see the law target malicious blasphemy or sacrilege than, say, fag-bashing.

As my 94 should make clear, on this point I'm pretty much in agreement. But I just can't go along with your "degrades the political culture" argument as some sort of bedrock first principle. The question of what degrades the political culture cannot (or should not) be abstracted from a consideration of the political culture that is supposed to be so degraded.

Your book is silly.

Well, I guess Canadians have to hope that when their turn comes to get hauled before a tribunal for uttering words that offended this or that group, they are lucky enough to get a judge who draws the line between "disparagement" and "criticism" in their favor.

Look, I am trying to goad people into saying that we need absolute protection of free speech in this country because our government is not under our control, and we don't trust it!

Sheesh. I'm doing a terrible job at this goading.

109: You've been trying to get my goat from the getgo with your goading.

Canada's "hate speech" laws are broad enough to encompass perfectly reasonable criticism and journalism.

Actually, they're explicitly designed for very restricted applicability. Of course it's perfectly commonplace for promulgators of hate speech to try to pass themselves off as being engaged in "reasonable criticism and journalism," a dodge frequently employed by Holocaust revisionists, Islamophobic hysteria-mongers and others besides.

Self-abuse leads to blindness, peter.

As it turns out, DS, the British Columbia human rights commission has not yet found the "Islamophobes" in question (Mark Steyn and MacLean's) guilty. Their trial is still in progress. However:

"If found guilty by the British Columbia Human Rights Tribunal, Maclean's could be ordered to stop publishing Steyn's column, or other articles "likely" to expose Muslims to "hatred or contempt."

Such a punishment amounts to a de facto ban on "ever uttering a critical word" about Muslim extremists. If you think any media outlet would take a chance on running an article expressing any degree of such criticism after watching MacLean's and Steyn get punsihed for their efforts, you're dreaming.

This isn't about minorities or any one group. It's about the free speech rights that all of us should share. Canada is resting uneasily upon the slipperiest of slopes: Will it next vet the content of imams' sermons for any "disparaging" references to Jews, or to Israel? If not, why not? My teeth are straw-free, and you need to wake up.

94 Gives the optimistic take on Canada;

99 If we opened the door to regulating "hate speech" in the
U.S., we are as likely to see the law target malicious blasphemy
or sacrilege than, say, fag-bashing is the realist's take.

Canada launders hate claims claims through provincial boards
stacked with panels that wouldn't give much standing to a
complaint against environmentalists hating on SUV drivers.

I have actually had my speech restricted, on several occasions, when, as an adult in the public sphere, I uttered speech that the government and its agents felt necessary to ban. It's not a good feeling.

And yet, what do we mean when we say "freedom of speech"? Certainly, you can say a great many things in the US, some of the wise, some of them foolish. There are certain utterances however -- like for instance the phrase "little Eichmanns" -- that will have a decidedly detrimental effect on your quality of life, courtesy of state actions, as promoted by powerful non-state actors. "Freedom of speech" in the US is generally nothing more than "ownership of media". Thankfully, at this particular historical moment, the ownership of the media is still heterogeneous enough that people like us can lull ourselves to sleep by imagining an "absolute right to free speech." However, such a right, even if it existed, would still be controlled by the state (and, by extension, capital). So then we're right back where we started.

There is no absolute, there are no "rights", there is no freedom, there is, in some very real senses, no speech, so long as there is hierarchy and domination. We exist at the pleasure of an interlocking web of controlling forces, and until we destroy that web, we remain silenced and unfree.

Such a punishment amounts to a de facto ban on "ever uttering a critical word" about Muslim extremists.

No, it amounts to a ban on one guy being able to continue publishing hate speech in the form of a column. You may, of course, choose to pretend that it's impossible to tell the difference between hate speech and responsible criticism, but don't expect to impress; or you may choose to pretend that's simply impossible for Canadian jurisprudence to do so, which is a harder task than you might think and nigh impossible for someone who basically doesn't know what they're talking about.

105: That's probably true in that it makes them seem more "respectable" - the NPD (biggest Nazi party) too has certainly been strengthened by the failed attempt to have it banned by the Constitutional Court. That attempt failed, BTW, because with all the Verfassungsschutz* informers in high party ranks, one couldn't quite say which of the party's official statements were in fact "genuine" NPD statements.

Of course, the Office for the Protection of the Constitution is also a pretty good example for how whatever state powers are used against the far right will also be used against the left - some State branches of the OftPotC are even still "watching" and reporting on the Linkspartei, the so-called socialist party which is minor partner of the social democrats in one or two state governments. Same goes for "extremism by foreigners"...

* BTW, isn't "Office for the Protection of the Constitution" the coolest Orwellian-sounding name for an intelligence service ever? Take that, "Homeland Security"!

On preview, I agree with a lot of what minneapolitan says in 114.

And yet, what do we mean when we say "freedom of speech"? Certainly, you can say a great many things in the US, some of the wise, some of them foolish. There are certain utterances however -- like for instance the phrase "little Eichmanns" -- that will have a decidedly detrimental effect on your quality of life, courtesy of state actions, as promoted by powerful non-state actors.

That is as it should be. We're supposed to be judged by private non-state actors based on the content of our speech. These actors can then exercise their rights to shun or criticize us as they see fit. Free speech does not mean that everyone is forced to admire, or even tolerate, your ideas; only that the government cannot compel you to shut up.

The question of what degrades the political culture cannot (or should not) be abstracted from a consideration of the political culture that is supposed to be so degraded.

Precisely. A political culture in which majority opinion and the democratically elected government concern themselves with the protection of minorities is not one that needs hate speech laws to prevent it from turning into Rwanda. A political culture in which racist sentiment is powerful enough and tolerance weak enough to pose a real risk of racist violence is not going to be helped by a statutory ban on hate speech.

Moreover, there is little empirical support for the notion that suppressing the public declaration of odious beliefs makes them go away. There are many examples in which the beliefs went underground and became stronger (think ethnic hatred in the former Yugoslavia, racist sentiment in East Germany, and anti-Semitism among French Arabs).

Well, I guess Canadians have to hope that when their turn comes to get hauled before a tribunal for uttering words that offended this or that group, they are lucky enough to get a judge who draws the line between "disparagement" and "criticism" in their favor.

I appreciate your criticisms, and I even at least half-share your concerns. But I do have to wonder, Do you even know fuck all about Canada? Well, maybe you do, after all...

Probably your proto-typical "man on the street" in Canada is just as homophobic as his American neighbour. But, you know, gay marriage! and the courts in Canada aren't going to rule otherwise, and though people may and do grumble about what in the world the world is now coming to, they just don't feel the hate in quite the same way as those south of the 49th parallel, and that's what I mean by the differences in political culture. Canadians really aren't more liberal than Americans in all sorts of ways, and in many ways are actually more conservative. But the context is...just different, I guess.

I'm ready to mount the barricades, more or less, for absolute free speech, more or less, in an American context, and even to recite passages from Thomas Paine. The "we are the world" universalism just sort of irks me, though.

No, it amounts to a ban on one guy being able to continue publishing hate speech in the form of a column.

And if you don't think that ban on alleged "hate speech" will have a chilling effect on other guys, you're clueless.

"I haven't had a reason to look at 'fighting words' in a long time -- can one of the younger lawyers fill us in on where this thing is these days? Is Chaplinsky (sp.) good law?"

I don't think it's been overturned, but it's been narrowed to the point of nonexistence. That's a vague recollection from Con Law a few years ago though.

120: Hate speech laws are meant to have a "chilling effect" on further hate speech. That's the point of having laws against things. I don't believe it will have a "chilling effect" on those who are engaged in responsible, reasonable criticism and journalism, but then I believe it's possible to discern the difference between the two and tell when someone who is claiming to be engaged in one is actually engaged in the other.

We're supposed to be judged by private non-state actors based on the content of our speech. These actors can then exercise their rights to shun or criticize us as they see fit. Free speech does not mean that everyone is forced to admire, or even tolerate, your ideas; only that the government cannot compel you to shut up.

Exactly right. I would only add, so that Bob doesn't pigeonhole me as a pantywaist procedural liberal, that I'm not averse to a little extrajudicial violence, in extreme cases, to enforce the boundaries of acceptable speech. I don't want the police to be able to lock up skinheads for wearing a swastika, but I don't mind if the nazis have to be scared to walk outside alone for fear of getting the shit kicked out of them by some burly punks or immigrants with baseball bats.

The borderline case for me is keying cars with Bush bumperstickers on them. My unprincipled compromise position on this is that it should be permissible only if you're really drunk.

Hey, I just want to take this rare opportunity to totally be on the same side as GB! Free speech maximalists fucking unite!

My personal justification for my views has not, I think, been expressed yet, which is that I don't trust anybody to know what speech will end up contributing something valuable to the sum of human knowledge. Censorship privileges the momentary needs of the present against the sweep of human intellectual history.

Hey, I just want to take this rare opportunity to totally be on the same side as GB! Free speech maximalists fucking unite!

Word.

The Iron Hell of Canadian Dominion shall crush you all.

117: We're supposed to be judged by private non-state actors based on the content of our speech.

Now you're just contradicting yourself. If we should all be so concerned about the possibility of hate speech laws, because those laws will be used to oppress unpopular minority points of view, regardless of the source of those views, then the Churchill case should be your argument. Unless, just perhaps, certain views are indeed so anathema to yours that you would prefer that the corrupt majority used the power of the state to suppress them. Is that an AIPAC badge I see on your lapel?

Hell was going be "Heel," but whatevs.

BTW, isn't "Office for the Protection of the Constitution" the coolest Orwellian-sounding name for an intelligence service ever?

Yes.

Also, I'm having a very weird experience of leaning towards GB's position over DS's. Perhaps I should take a brisk walk around the block and the feeling will pass.

129.2: Not to worry. Our Political Reeducation Camps in Labrador were established to rectify just this sort of thing.

I agree with GB in that I'm sort of a free speech maximalist. I'm with DS in that I think it's possible to distinguish between hate speech and criticism.

Australia is broadly comparable to Canada in this matter - laws vary state-by-state, with the most controversial law being Victoria's Racial and Religious Tolerance Act. This is broadly supported by Islamic and Jewish groups. But really it's pretty dumb and the cases that have been brought using the act could charitably be described as vexatious.
That said, the slippery slope argument is a crock. This is an example of governments trying something out in the hope that it will cause some net benefit. If it turns out that it doesn't, they'll change or get rid of it at some point.

I'm with mrh in that I agree with what he says. I'm only with GB in a sort of fuzzy "fuck a speech law" way. The rest of his argument has some holes.

Also, I'm having a very weird experience of leaning towards GB's position over DS's. Perhaps I should take a brisk walk around the block and the feeling will pass.

Just console yourself with the knowledge that, if we must have censorship, you'd rather oppress GB than DS.

This is an example of governments trying something out in the hope that it will cause some net benefit. If it turns out that it doesn't, they'll change or get rid of it at some point.

Because faith in the wisdom good faith of legislators turned out so well in the past, like in the case of drug prohibitions. Fortunately, Congress has been quick to remedy its past misguided approaches, while judges have shown exemplary discretion in distinguishing between harmless behavior and dangerous drug crimes.

Fuck me, 135 sounded almost...libertarian! I hasten to reassure everyone that I support confiscatory taxation, socialized medicine, and card-check unionization.

In the Canadian context, I am reasonably confident that laws designed to protect vulnerable minorities are not going to be subverted from their aim and used by majorities to trample upon minorities (though I don't like the bureaucrats, and I do worry about over-broad interpretations).

How would you characterize what happened to the Glad Day bookshop?

Yes, Knecht. Therefore government should not have the ability to make laws, in case they turn out bad.

OK, guys, cancel the, um, "Advanced Constitutional Training" for KR. He's straightened himself out.

137: Obscenities statutes are the opposite of laws designed to protect minorities.

DS, have a doughnut! Courtesy of the Dominion of Canada, naturally. Belly up! all the drinks are on the Crown... We're just a hat trick (or maybe just a human rights tribunal ruling) away from gross tyranny, of course, but would anyone even notice if and when we sank that low? Maple-glazed or blueberry jam?

139. Sorry, mine was already despatched. Trying to comment while being vomited on by a baby.

Maple-glazed or blueberry jam?

I congratulate you on a most clever loyalty test, Comrade Mary Catherine. Maple, obviously.

Can I have a doughnut?

Trying to comment while being vomited on by a baby.

I am so there in one month (no sooner, we hope), my brother.

WHERE'S MY GODDAMN DOUGHNUT!!!!
Maybe I don't like Canadians after all.

Obscenities statutes are the opposite of laws designed to protect minorities.

*I* think that, and *you* think that, but at least in Butler it sounds like the Supreme Court disagreed with us. Then again, I have no idea what the current state of jurisprudence up north is on this subject, and my apologies if it sounds like I'm trying to play gotcha games. Mostly I'm still just jetlagged. (Four days after we got back, dammit!)

146: Unfortunately, our legendary doughnut fisheries are depleted. It's all the fault of illegal Spanish trawlers.

We're currently developing the beaver rind as an alternate national snack source.

148. well, can I have...
Never mind. I'll just gnaw on this kangaroo scrotum.

(Four days after we got back, dammit!)

150: WTF!? Was to say:

Hey wow, how was the car (am I remembering correctly?)?

It's all the fault of illegal Spanish trawlers.

Vraiment, oui, and don't even get me started on the illegal actions of the Spanish trawlers. Sods and rinds to cover yer flake/cake and tea for supper/Codfish in the spring o' the year/fried in maggoty butter.

Yeah, Nakku, you can have a doughnut. If you still want one, that is. Maple-glazed or blueberry jam?

I'm much more certain I prefer our Brandenburg v. Ohio test, regarding political speech, to European hate speech laws etc. than I am that the protection of commercial speech, campaign spending, etc. works. But, I don't think the slope with hate speech laws is necessarily all that slippery; I just don't want the government being able to jail people for that. Our other recent forays with tyranny just strengthen this: maybe in Europe a less robust free speech doctrine doesn't have awful consequences, but in this country it could easily take the direction of wiretapping mosques & jailing clerics, criminalizing antiwar speech (look at those awful WWI cases), etc. And I don't think hate speech laws do much good either.

[whispers] For Christ's sake, Nakku, go with the maple! These Canucks'll slit yr throat as soon as look at you.

[aloud] My goodness, that Tim Norton was a fine curler! May I have another plate of putin, please!?

152. Maple-glazed, but can I have Vegemite instead of the maple?

(quickly patents brilliant money-making scheme)

Hey wow, how was the car (am I remembering correctly?)?

You do in fact remember correctly. Two words suffice to describe the car and in fact the entire trip:

FUCKING.
AWESOME.

We went back to a bunch of places I'd been in the mid-'90s, and it was stunning how some of them had changed. Budapest and Strasbourg, in particular, were in many respects completely different from what they were the last time I was there. I'm still uploading pics from the trip, but if you click on the one I added most recently to the Flickr pool you'll see a bunch of them.

May I have another plate of putin, please!?

Poutine, mavourneen, but you're on the right track. More gravy with your cheese curd?

Did somebody say, "maple-glazed donut"? I'll have one, thanks.

157: Sigh. Exactly one year ago I was in Germany (right outside Koblenz). Such a good life....

If only they didn't call it cheese curd, I would be so onboard with poutine. I spent much of my HS life eating gravy-cheese fries at the Victoria Diner in NJ (along with pizza burgers).

Did somebody say, "maple-glazed donut"?

Budge McFarland's got your back, Ari. For real.

If only they didn't call it cheese curd, I would be so onboard with poutine.

De fromage en grains de cheddar frais sounds way classier, yeah. Climb aboard!

I'm with GB, too, mostly. I don't believe absolute free speech is either a necessary or sufficient condition for a free society, for the reasons KR outlined.

But I know which way I'd bet.

I don't see the benefit of free speech in the idea of the market place of ideas. The market place is only as good as the shopkeepers and sometimes we're not all that bright. ($0.05 an aphorism!) It's a little too intellectually triumphant to think that we all sit around sifting through the various ideas, no matter how crazy, and reason about their truth, and that our society gets better and better all the time.

I see it mostly as a better alternative than suppressing most nasty ideas. Better the enemy you know that the one you don't, and it's far easier to root out. Whiny people already whine that having to be PC means they can't say what they want any more. It wouldn't be better if they were actually being jailed, because then we'd have a million bedwetting martyrs.

Plus, I'm not sure the Civil Rights movement gets off the ground. Ballot or bullet? Eek!

#131: I'm with DS in that I think it's possible to distinguish between hate speech and criticism.

No doubt it is, for some people, some of the time. Other times, judges (or even worse, low-level bureaucrats), being human, will get it wrong. We don't need to take it upon ourselves to attempt to start drawing these lines.

However, if we do end up with censorship, I plan to sue everyone else on Unfogged for disparaging me over the years. You've been warned.

We don't need to take it upon ourselves to attempt to start drawing these lines.

What if we do though? After all, Germany had started two World Wars in the past half century in 1945, and many of the people responsible were still knocking around. I really don't see a problem with the Weimar Republic passing a law that states that hyper-revanchism is a crime, and nor do I see a problem with the rest of Europe imposing a law against fascism on Germany.

Ditto stuff like the enforced pacifism in Japan's constitution, etc. Theoretically not very nice, but given the alternatives, more attractive.

Oh, and also, And yes, we are closer to a tyranny than many European countries, but look at how apeshit the UK and Spanish governments went over attacks that paled in comparison to September 11 is a bit disingenuous, given that terrorist attacks don't work on a linear scale, and that both Britain and Spain have history with terrorism, and slightly fascist responses to such.

Preventing neo-Nazis from publishing their pamphlets is in of itself not a legitimate task for government.

Spoken like someone whose country hasn't directly experienced World War 2. There's a reason there are anti-nazi laws in Germany, laws that were enacted partially through US pressure and it's not because of some _abstract_ hatred of nazi ideology. We've seen what happens when Der Sturmer or Volkish Beoabacher get to spew their hatred and the end result is Kristallnacht and Auschwitz.

West Germany didn't start with a blank state, but with a legacy of hatred and millions of people who just a few years ago had been dedicated nazis. The anti-nazi laws and such were a signal that the West-German state was dedicated not to repeat the Weimar experience. Meanwhile East-Germany redefined itself as the home of the good Germans, didn't deal with its past half as well as West-Germany did and the results have been on display ever sicne the reunification.

We've seen what happens when Der Sturmer or Volkish Beoabacher get to spew their hatred and the end result is Kristallnacht and Auschwitz.

You left out the all-important Step 2, which is that the people spewing hatred have to seize power and enforce policies that result in Kristallnacht and Auschwitz.

Having viewpoint-specific speech laws like Germany does is a tacit admission that your government is too weak to handle dissent, even odious, hateful, dissent. One of the good things about America and its constitutional system of government is that it's strong enough to handle a David Duke or a Louis Farrakhan without passing laws to shut him up.

I'd bet Germany is up to the task too. Does anyone really think Germany would "go Nazi" today if the anti-Nazi, anti-swastika laws were stricken from the books? Those laws serve a symbolic purpose of saying "OK, we know we screwed up with the Hitler thing, but we won't let it happen again". But in practice they are worse than useless. They will not stop the next would-be Hitler, assuming he is clever enough to adopt a new name and new symbol for his new party. And they are harmful because they make martyrs out of skinheads while infantilizing all Germans, presuming them to be incapable of withstanding exposure to noxious ideas without getting all goose-steppy.

I've got to say I'm with GB--free speech 4evar!--though it does seem that specific historical circumstances might dictate certain restrictions, as with the post-WW2 anti-nazi laws. I can't imagine it would be a good idea to let rwandan radio hosts start going on about cockroaches again, either. but on the whole, the circumstances under which hateful speech would truly amount to an incitement to violence are rare, and trusting the government to make fine distinctions about whether things are hateful is unpromising. does anyone here wish the bush administration had had the power to suppress 'hateful' speech? the canadian government shouldn't be fucking with mark steyn either, odious little shit that he is. if they're that concerned about it they should hire sadly, no! to mock him on public tv.

Except that it wasn't strong enough to prevent David Duke's mates from running the South for however many years, and

In fact, the American mechanisms of government are remarkably prone to seizure by right-wing extremists who engage in state terror, extraordinary rendition, wars of aggression, etc.

Further, we know Germans aren't very good at the whole anti-fascist thing on their own, because we've tried it in the past. It's perfectly logical to refuse to bet the the peace of a continent on the ability of a bunch of not-particularly-ex-fascists to resist revanchism, especially given the German (Prussian) track record of invading other people's countries. Or at least, that's the argument in 1945, and 1955, and 1965. After that, it becomes the question, whose rights are we violating?

Well, the rights of fascists. Whose rights does fascist speech violate? Well, depending what sort of fascist speech,and what sort of rights are being discussed, but almost everybodies'. After all, on some level, fascism is nothing more than a criminal conspiracy against humanity, and if we're willing to criminalize particular forms of speech on the grounds of criminal conspiracy, then I do not see how the prohibition of fascism doesn't fall under that banner.

I also think it's so obviously a bad idea to have the government choosing what speech to restrict that I am to some degree unable to join in these debates in the proper spirit, believing as I do that the pro-censorship arguments are just slate-style, counter-intuitive trolling. I realize this is false, witness harry over at CT or our representatives of the fair north here, but somehow I can't get my head around it. really? you think that inimitable, musical comedy critic-turned-xenophobe mark steyn should actually be prevented from publishing things? he's a racist dumbass, sure, but now he's going to be a racist dumbass who prances around being a free-speech martyr, and I, anti-mcmanus procedural liberal that I am, am going to have to defend him. this could all be avoided by just letting him print nonsensical things about how lesbians turning muslim. muslims in canada have plenty of actual legal protections where t counts, and if their feelings are hurt by mark steyn they should butch up a little.

I don't have any problem with incitement to hatred legislation provided the bar is set high enough. However, I don't really think of that sort of legislation as a restriction of free speech.

Most of the instances of egregious speech mentioned above wouldn't fall foul of incitement legislation anyway.

Mark Steyn? I dunno, he's hardly the clear cut German-advocating-killing-Jews for me. On the one hand, free speech, yay! On the other, he's a racist scumbag who actively and maliciously degrades the quality of life of large numbers of people, with little or no redeeming factors.

Really, I think free speech is probably more important here, but I don't have much sympathy with ``muslims should butch up''.

On reflection, strike `probably' for `almost certainly', and remember I know next to nothing about Steyn, so.

I can't imagine it would be a good idea to let rwandan radio hosts start going on about cockroaches again, either.

IANAL, and I never took Con Law II--the course at my school which covered first amendment stuff--but I don't think that this would be legal under U.S. First Amendment theory either. Wouldn't it be the fighting words to which Napi referred? I'm pretty sure that a burning cross in the right location is not protected speech.

Further, we know Germans aren't very good at the whole anti-fascist thing on their own, because we've tried it in the past. It's perfectly logical to refuse to bet the the peace of a continent on the ability of a bunch of not-particularly-ex-fascists to resist revanchism, especially given the German (Prussian) track record of invading other people's countries.

I would argue that threatening imprisonment for uttering forbidden thoughts is neither a necessary nor a sufficient condition for preventing fascism. Is Austrian democracy in any sense more secure because David Irving spent time in an Austrian prison? Or is the cure worse than the disease?

After that, it becomes the question, whose rights are we violating? Well, the rights of fascists.

See Genosse, Esq.'s 116 for a close-up account of how wrong this statement is. Censorship is an unavoidably blunt instrument.

The "never again Weimar" rationale doesn't stand up to a moment's scrutiny. No reputable historian puts the Weimar guarantee of freedom of conscience anywhere near the top of the long list of contributing factors to the Nazi rise to power. The problem wasn't that the early Nazi party was de jure permitted to publish and communicate; it was that it was de facto permitted to brutalize opponents and create a climate of violent disorder, because a deeply reactionary judicial system refused to hold them to account. (And hate speech laws, FWIW, would have done nothing to stop them, because the undercurrent of anti-semitism in Nazi agitation of the 1920s and early 1930s was secondary to denunciations of bolsheviks, social democrats, and liberals--the purported traitors who had betrayed the Fatherland in 1919.)

153: it could easily take the direction of wiretapping mosques & jailing clerics, criminalizing antiwar speech

I'm confused. This already happens. In just the past couple of weeks here in the Twin Cities we've had one long-time leftwing campaigner hustled away from the Obama rally and ticketed for passing out anti-war leaflets (he's getting an apology from the cops ... this time), and the FBI and the local PD conspiring to recruit an agent provacateur to disrupt anti-RNC organizing. That's just the stuff they were stupid enough to do publicly.

There can be no "free speech" in a society in which everything is monitored and monetarized. It can't happen. If Tom Paine came around with his pamphlets today he'd be in Gitmo in a week. The only question I see is: Should we let the fascists and their fellow travelers organize without opposition, or should we do something about it? My choice is pretty clear from my FBI file, what's yours?

I think the problem is really how exactly the laws are applied, and that is (among others) a question of the interplay of forces in society.

The laws in Germany (including some left over from the Allies) _could_ be used to curb the open organization of neo-Nazi parties. And that sure would be a good thing - yes, they are not going to take over power in Germany, but there are some parts of e.g. Saxony where the NPD has received about 30% of the vote in local elections and is the second-largest party (in a six or so-party system, mind you), and where they accordingly wield some influence. And that would not be so if they were not a political party, but rather some underground "hate group".

Or the laws can be used as they are used now - as a way of ensuring that the foreign press does not print too many "ugly" pictures which could damage Germany's standing in the world, and as a potential argument for restricting critical speech under the guise of "anti-totalitarianism". (A court in Southern Germany recently convicted a guy for wearing a lapel pin with a crossed-out swastika, with the explanation that "Japanese tourists" might not realize that that was an anti- rather than a pro-Nazi symbol.)

But then of course, the same goes for "absolute free speech" - which, given the "right" makeup of societal forces, did allow McCarthyism and cointelpro, and which still allows/does not keep from happening the stuff minneapolitan is referring to.

171 gets it exactly right. I haven't decided whether Steyn is more crazy, stupid, or evil (I lean to the latter, but am open to arguments for the other two), but for christ's sake, don't turn him into a cause célèbre.

A court in Southern Germany recently convicted a guy for wearing a lapel pin with a crossed-out swastika, with the explanation that "Japanese tourists" might not realize that that was an anti- rather than a pro-Nazi symbol.

!!!! [/American]

179: indeed. Besides, there's a nice hobby to be found in mocking stupid, evil shitheads.

Cross burning.

"I can't imagine it would be a good idea to let rwandan radio hosts start going on about cockroaches again, either."

IANAL, and I never took Con Law II--the course at my school which covered first amendment stuff--but I don't think that this would be legal under U.S. First Amendment theory either. Wouldn't it be the fighting words to which Napi referred? I'm pretty sure that a burning cross in the right location is not protected speech. "

Burning a cross on a black person's lawn is not protected because it's a personal threat against a specific person that's intended do and does intimidate.

I don't think Rwandan radio calls for extermination are protected either. This doesn't get filed under "fighting words"; that involves speech that is likely to provoke someone to punch you. It gets filed under "incitement." Advocating violence is not protected if: (1) you are actually trying to incite imminent violence (2) your words are likely to incite imminent violence. The case is Brandenburg v. Ohio.

So under this test, you can certainly punish people making public calls to exterminate the cockroaches during & leading up to the genocide, but some hateful radio host calling minorities "subhuman cockroaches" in other contexts might or might not be covered depending on whether he was actually trying to get people hurt & likely to do so.

More cross burning. As you can see I was oversimplifying a bit.

No reputable historian puts the Weimar guarantee of freedom of conscience anywhere near the top of the long list of contributing factors to the Nazi rise to power.

As I said in another thread, liberalism is not only a totalitarianism, but a mode of perception that cannot even see illiberal problems & solutions. A problem, threat, or catastrophe will never be seen as caused or allowed by an excess of liberalism. Liberalism is closely associated with classical economics;it only works in an ideal general equilibrium which never actually exists;whereas what is actually happening is a dynamic of disequilibriums. I'll repeat:if you want to study the problems with liberalism, study the problems with and hegemony of Walrasian economics.

So torture and suspension of habeas were unthinkable and unmanageable; and only an abandonment of liberal principles, which may not have even solved the Bushian habeas problem, approached a solution.

Legal text and doctrine didn't determine the Justices' votes today-- outside considerations of policy and politics did...publius

By the time liberals consider invoking the State of Exception, it is usually too late.

Liberals really have no grounds for criticism of German speech restrictions, for as another wave of Nazi madness grew in that country, liberals, within their usual context, could only stand by and watch.

And in any case, our own recent history shows such a pathetic impotence we should just STFU.

180: I should probably have added that the decision was overturned on appeal, but still...
(And appeals courts do not have a problem with people being convicted for using Nazi symbols as a criticism of the exercise of public powers - e.g. giving the Nazi salute to police officers who they thought where behaving like Nazis)

Steyn has used a prominent pulpit at Maclean's to pump a steady stream of racist commentary into Canadian discourse since 2001. Frankly, I think Maclean's should have long ago had the sense to stop him from doing this themselves, but since they didn't, somebody else should. His right to free speech in this instance is outweighed by the right of the Canadian body politic to not have prominent pundits actively whipping up the most fashionable race hatred of the age in ways calculated to promote terrorists-under-the-bed thinking and, not coincidentally, to undermine democracy.

Does restricting his speech make a martyr of him? It's a tradeoff against allowing him to continue to actively promote poisonous views. The case has to be pretty severe to warrant such a tradeoff, but Steyn has worked hard to meet those standards and his efforts should be recognized.

I was very sloppy not to say incitement. Thanks Katherine. When my head stops hurting, I'll make sure to read both of those. Headaches suck.

I was very sloppy not to say incitement. Thanks Katherine. When my head stops hurting, I'll make sure to read both of those. Headaches suck.

A coment in that publius Obsidian Wings thread asks what happens if Bush just ignores yesterday's ruling, or plays some new level of gaming.

Answer:nothing.

If Obama gets elected, it's Obama's problem. Who knows?

If McCain is elected, the detainees will likely suffer for at least four more years. Can anyone promise otherwise?

There is an argument (made by Schmitt and Strauss) that the Weimar Republic collapsed because its excessive liberalism and legalism prevented it from cracking down effectively on violent insurrectionary groups on the left and the right.

I don't think that these arguments should be taken at face value. Liberal governments had already succeeded in England, France, and the US by the time liberalism failed in Germany. It makes more sense to say that liberalism failed in Germany because most Germans were illiberal. Both Schmitt and Strauss had fascist sympathies, and Schmitt ended up joining the Nazi party and cutting poor Strauss off when he went into exile, hoping to find or create a non-anti-Semitic fascist state where he could be happy.

It may be that the German liberals were so scrupulous that they failed to compromise and refused to resort to the authoritarian methods that liberals elsewhere occasionally used in order to maintain order. (How like the Germans to push something to its philosophical extreme.)

In short, though, excessive freedom of speech allowed to revolutionary anti-government agitators is mentioned as a contributing cause of the rise of fascism, though it is probably more to the point that the republic itself was established with the help of violent, lawless armed bands of rightwingers who never were brought under control.

you can certainly punish people making public calls to exterminate the cockroaches during & leading up to the genocide

Hitler's Final Solution was never public policy.

191 is tautological

Liberalism works when the conditions favoring liberalim exist; and fails when those conditions are absent.

Or as in the Palmer raids, loyalty oaths, and Gitmo, liberalism works except when it doesn't.

Fine, Bob, but I don't see that we should be expect wisdom about liberalism from the people (Germans) who fucked it up so totally. Half the surviving losers of the German-speaking world was in the US by 1950, explaining to us how horrible we were.

I don't understand the leftist Schmitt cult; I'm inclined to think of it as a desperate grab for relevance and shock effect after the collapse of 1975.

"Collapse of 1975": the US had a constitutional crisis, and the so-called left played scarcely any role in it.

I continue to 100% disagree on DS with this.

You have to be more accepting of the xenos, Sifu. The Canadians are people who fuck bears. Their ways are not our ways. The world's a bigger place than you can imagine.

196: keep those fascist censorbear claws off my body, maple leaf state!

194:John, as I said, examine some of your feelings and opinions about modern economics and try to apply that analysis to procedural liberalism. They are historically and conceptually related.

I am in no way dependent on Schmitt. There are Marxist analyses of liberalism that will do as well; or the classical elitists; or various kinds of reactionaries and conservatives.

The point is:enlightenment liberalism is just another irrationalism, a veneer on top of instinct. It is not a cause of good societies in the US, England, France, nor a method for creating good societies;it is a result, an artifact of a people generally predisposed to make it work.

I do not oppose generally free societies anymore than I oppose prosperity. But prosperity is not the result of the smart application of classical economics, but the result of a society committed to certain values & institutions.

An application of my ideas? Use illiberal methods to eliminate or constrain the principled illiberal and antisocial elements of a society. Like restricting Nazi speech.

there is no absolute freedom
if there are others, there should be and there is some limitation of freedom, of speech or one's conduct
one may have freedom of speech and also face the consequences of having it, good or bad
just there shouldn't be the state regulated limitations of it imo, coz it'll get regulated by itself
like the majority and minority conflicts, so it leads to that, the tyranny of the majority
so the state should just provide protection for the minority exercising the freedom of speech irregardless of the contents of the speech imo

Use illiberal methods to eliminate or constrain the principled illiberal and antisocial elements of a society

Yeah I can't see any potential problems with that, nosiree.

The player piano's stuck on the "Anti-Liberal Rag" again.

Use illiberal methods to eliminate or constrain the principled illiberal and antisocial elements of a society

Another example? Graduated income taxes for the purpose of redistribution. But that's another argument.

If you cannot convince a fascist, acquaint his head with the pavement.

The Canadians are people who fuck bears. Their ways are not our ways.

Above is ahistorical. The practice started in the US but has largely been given here up due to a combination of habitat encroachment and the lousy health care system.

200:I never promised you a rose garden.

See:American Civil War and it's partial failure.

SCMT & I would, I think, both like to see Dixie expelled from the Union.

People who defend the legality of rendition on narrow legalistic grounds should maybe fuck off a bit about lectues about what a failure Guantanamo shows procedural liberalism to be. There's nothing at all about liberal principles that prevents shutting it down, attaching habeas restoration & other remedies to detainee abuses to a budget bill, trying members of the Bush administration for criminal violations, etc. I am actively in favor of all those things. Liberal principles of free speech, due process, not liquidating the counterrevolutionaries, etc. & the political cowardice of Democratic politicians are not the same thing. It's dishonest & insulting to pretend otherwise.

206:Tautological, or maybe begging the question. "The Weimar Constitution would have stopped the Nazis if the Nazis had followed the constitution." Actually, I think they did, with a couple legislative acts early in the regime.

In any case, saying liberal principles and procedures would have stopped Bushism if they had been faithfully followed doesn't exactly address the core question. "Political cowardice of Democratic politicians" is not an answer, but a question.

If we were more truly liberal, we would act more liberally. I can do this all day, and so can you.

Katherine, Katherine.

People who defend the legality of rendition on narrow legalistic grounds

Oh, that was just a question based on some ignorance about the exact legal status of American held prisoners in Iraq. That question is certainly arguable, and is currently under dispute in the current negotiations between Iraq and the US.

I don't know if US soldiers in Iraq are in some sense acting as agents of a sovereign Iraqi government, or whatever. My feeling is that it is confused.

In the case of rendition from Italy or Macedonia, the question is less confused.

I wasn't defending anything. Well, in an abstract case of an American citizen violating French law on French soil, I would possibly defend American authorities, say the embassy, rendering or extraditing that citizen to the French.

Iraq is not as clear.

There's not guarantee that liberalism will work, any more than there is that any other system will work. It stacks up extremely well against fascism and communism. As far as I'm concerned democratic socialism / social democracy is a form of liberalism, and in fact it is my preferred form. Technocratic authoritarianism of the Singapore type seems to be the biggest threat to liberalism at the moment.

Much of what we're saying is moot, because while there are things going on globally, left movements within the US are feeble.

DS, come on, these tribunals are an embarrassment to Canada. Incitement to hatred laws, okay. But the cases should be decided in real courts, where there's a presumption of innocence, strict standards of evidence, real judges. Who are these BC human rights commissioners, anyway? What qualifies them to adjudicate the competing claims of the relevant parties?

"Fascist censorbear claws" is funny.

Somehow I don't think that you came here just for the huntin', Sifu.

As far as I'm concerned democratic socialism / social democracy is a form of liberalism, and in fact it is my preferred form.

Well me too, of course.

There's not guarantee that liberalism will work

As usually conceived, in the sense of inalienable right, it is guaranteed not to work.

Look at the original post, and compare it to our attitude toward laissez faire economics.

The libertarians have one attititude toward property rights (on both deontological & consequential grounds), which are foundational to liberalism, and the rest of us have different attititudes. We favor, according to our biases, some degree of mixed economy and restriction on property rights and the independence of markets.

But ogged's post was whether freedom of speech should be viewed under a deontological perspective or consequential analysis. The political foundations of classical liberalism are not analyzed in the same way as the economic. Not analyzed pragmatically.

I happen to believe that our absolutism in speech rights is directly connected to our weaker welfare state, and the lack of a vibrant left.

SCMT & I would, I think, both like to see Dixie expelled from the Union.

Mmm, not really. At a minimum, I want to keep VA, NC, TN, and AK. Generally, as long as I have my bulwark against the SoCons, I'm happy. (All opinions subject to change should Obama lose or be shot.) As to illiberal means: I think the decision to use them is something like the nuclear option: I'm sure there's a point at which I'm fine with it, but I couldn't begin to guess where that point is.

As to illiberal means: I think the decision to use them is something like the nuclear option

I think, in practice, we are already there, but I try to restrict my use of the word "liberalism" to "classical liberalism" and give great weight to various libertarian and orginalist arguments. The graduated income tax is illiberal, which is why it took ~150 years and a Consitutional Amendment and a strong socialist movement to enact.

I believe that Locke and the moderate Enlightenment promoted the ideas of innate ideas and inalienable rights in order to protect property and heirarchy/authority from Hobbes, Hume, & Spinoza. You really can't separate these "rights"

If you want to know one reason I am such a pain on this, you could look at the 30s, the New Deal, and FDR's problems with SCOTUS. Then look at the present SCOTUS. Repubs had a comprehensive plan for starving the beast.

There will be a Constitutional Amendment in our way.

If I were in a less-liberal more-socialist European country I probably wouldn't be militating for the introduction of American-style civil liberties. But I'm here, and there's no socialist movement present or even on the horizon.

Not even the cloud no bigger than a man's hand.

I am exceptionally late to this thread, but 5 is excellent.

One way we avoid succumbing to tyranny is to maintain pride in our commitment to free speech. This post isn't helpful in that regard, and should be censored.

211: come on, these tribunals are an embarrassment to Canada.

I don't particularly see why. The Human Rights Tribunals were created to be less formal than an ordinary court because they don't have the powers of an ordinary court; they're essentially a small-scale dispute-resolution mechanism, empowered to issue cease-and-desist orders or nominal fines (and set up specifically to try to encourage parties to use alternative dispute resolution before it gets to that point) and that's about it.

It's my understanding that these tribunals have worked fairly well for several decades as a "small-scale dispute-resolution mechanism" for cases involving discrimination in housing and employment. In which case, fair enough, and it's probably a good thing to have an alternative to the courts. But a high-profile case involving a national publication, and with a vigorously contested constitutional issue at stake, does not belong in this kind of tribunal. What I mean by "vigorously contested:" while plenty of people are probably willing, say, to discriminate on racial/ethnic/gender grounds in employment in practice, nobody but a kook says it's a positively good thing to discriminate as a matter of principle. Whereas the speech issue is complex, and there are good faith (and bad faith) arguments on both sides, and for that matter, there are probably more than two sides.

220: But a high-profile case involving a national publication, and with a vigorously contested constitutional issue at stake, does not belong in this kind of tribunal.

This kind of tribunal was specifically created to deal with the vigorously contested constitutional issue specifically as it pertains to human rights; the involvement of Maclean's ups the ante in terms of profile more than a little, but hardly to the point of taking it outside the Tribunal's jurisdiction.

If the complaint eventually does come to criminal charges, as happened with Keegstra and Zundel, then they'll go to a criminal court. And that's as it should be. As to the complexity of the speech issue: as with the complexity of the gun control issue, there are lots of good- and bad-faith opinions on both sides, but at the end of the day both sides just don't have equal empirical support for their broader positions. There are many sides to many issues, but they don't all get to be right.

And yours is wrong. The gun analogy actually kind of shocks me.

222: Gun control rights activists are fond of predicting the inevitability of tyranny if their position isn't adhered to. Adherents of American-style free speech jurispruidence tend toward similar kind of claims. In both cases, real-world evidence debunks these claims. (In that there are tyrannies that have gun control, but gun control doesn't lead to or predict tyranny; there could conceivably be tyrannies with hate speech laws, but in the real world such laws do not lead to or predict tyranny. The US is itself an increasingly prominent counter-example in both cases.)

Gun control rights activists

Gun-rights activists, that is.

223: guns are relatively advanced technology; speech is a fundamental signifier of human-ness. Restricting one is just vastly different than restricting the other.

Saddam encouraged gun ownership, for what it's worth.

225: Fortunately, hate speech, like shouting "fire!" in a crowded theatre, is a small subset of speech and one that we have plenty of evidence can be held accountable without unduly prejudicing broader speech rights. Indeed, since hate speech is usually intended to intimidate and drown out other forms of speech (and often succeeds without countermeasures), there's a perfectly arguable case to be made that well-enforced hate speech laws enhance free speech rather than detracting from it.

227: can't get there with you. Promote countering speech, shout louder, whatever: banning speech of any kind impoverishes thought.

228: banning speech of any kind impoverishes thought.

As I said earlier, "the US is itself an increasingly prominent counter-example." Any country in which Michelle Malkin and Rush Limbaugh were ever taken seriously as media figures can issue no lectures on enriching thought.

229: I don't trust you (or me, or them) to make that judgment. The more information that is available, the better. That they became so prominent is a problem to be solved positively, not restrictively.

230: I don't trust you (or me, or them) to make that judgment.

If you can trust a judicial system to figure out when shouting "fire!" in a crowded theatre is a bad idea, you can reasonably trust it to figure out when painting Jews or Muslims as a present threat to Western civilization is hate speech. It's really not that much of a stretch. Admittedly, I would trust the American judicial system less for either purpose than I trust the Canadian one.

231: I'm not particularly sure I trust them on that, either.

232: Not sure which sentence you're replying to, but if you're saying you don't trust anyone to know when it's a bad idea to shout fire in a crowded theatre, I just flat-out don't believe you.

233: not when it comes to prior restraint I don't. If you're talking about holding somebody responsible for
specific consequences after the fact that's maybe different.

Will you come off it, Walter? You're not even fucking Jewish, man.

Dunno what to tell you, here. I said "maximalist" upthread for a reason.

Be a maximalist all you want, brother. Like I said earlier, it just doesn't mean you get to be right.

I am, though.

Look, this isn't an argument, this is just contradiction.

True. Like alameida, I find this so strange I can't really even bring myself to make the case. I mean, so obviously the harm outweighs the benefit.

I mean, so obviously the harm outweighs the benefit.

You can't bring yourself to make the case because the empirical data contradicts your claim. Which makes you wrong.

241: nope. Not wrong. Empirical data of what? You're going to prove the absence of paucity of imaginative breadth... how?

It's not like the US has dramatically more racial or ethnic hatred than any other country, possibly excepting Canada. We just bitch and moan about it more because of the whole Civil War thing.

I don't think that the Swedes ever actually lynched any Finns, sorely though they may have been tempted.

242: Empirical data of what?

In the context of free speech, one weigh to figure out if the "harms outweigh the benefits" is to figure out the detriment to political freedoms. (This is what alameida was alluding to when she asked rhetorically if anyone would like the Bush Administration to have 'hate crimes' powers.) So, if hate speech laws were consistently prejudicial to overall levels of political freedom, there would be a case against them on these grounds. Such a case, much like the case that gun control = tyranny, most probably cannot be made.

It's much harder, it's true, to have any sort of empirical argument about something like "imaginative breadth." But this redounds against your case as much as for it; how exactly do you aim to prove to me that the "imaginative breadth" won from removing some hate speech as an intimidating factor from a political discourse is inferior to that won by refraining from such a challenge? If you can't prove such a thing, why would I take your word for it?

one weigh

"Weigh" for "way"? Yes. That just happened.

I also don't buy the harm argument, in general.

As in, you don't buy that hate speech is harmful in any general sense? Luckily for me, that's an argument that's much easier to have for my side of the aisle.

I don't buy that speech per se is harmful in the vast majority of circumstances. In fact, I don't think using the term "harm" when it comes to speech makes a huge amount of sense, usually. Not trying to convince you, though. You canadians get on with your crazy customs, build Mark fucking Steyn into a hero. Oh well, says I.

I don't buy that speech per se is harmful in the vast majority of circumstances.

And hate speech laws are not directed against the "vast majority of circumstances." Isn't that handy?

It's a little-known fact that Jim Keegstra and Ernst Zundel now have their faces carved across entire tracts of the Canadian Rockies. Nevertheless I think we can take our chances with Mark Steyn.

Good luck.

As I said earlier, "the US is itself an increasingly prominent counter-example." Any country in which Michelle Malkin and Rush Limbaugh were ever taken seriously as media figures can issue no lectures on enriching thought.

Meanwhile in your country, as we have established, Mark Steyn is taken seriously as a media figure, AND is a genuine martyr being actually persecuted by the actual government for doing so, unlike our blowhards whose attempts to claim they are victimized are risible.

Has anyone pointed out yet that the problem isn't free speech per se as much as it is that money counts as "speech"?

unlike our blowhards whose attempts to claim they are victimized are risible.

risible, but at least as effective. Probably more.

You could have at least read to comment 7, B.

I skimmed. But okay, mea culpa.

AND is a genuine martyr being actually persecuted by the actual government for doing so

Incidentally, the tribunals process is dispute-resolution between civil parties. No provincial or federal government has "gone after" Steyn. And the martyr talk is just plain stupid, people, sorry; the passing swipe about Zundel and Keegstra was actually giving an example of individuals who underwent criminal trials and convictions without attaining martyr status.

Oh, also: Meanwhile in your country, as we have established, Mark Steyn is taken seriously as a media figure,

Steyn, happily, unlike Malkin or Limbaugh, does not have a large cohort of prominent companions -- except perhaps at the local tabloid level -- and it should stay that way. Hopefiully his being held accountable for his hate speech should help with that.

Steyn, happily, unlike Malkin or Limbaugh, does not have a large cohort of prominent companions

(Excepting transplants to the American milieu like Frum and Marsden.)