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Friday, April 16, 2004


That haven of civilization to our north

This week, John Leo wrote this piece in U.S. News and World Report about the explicit assault on free speech and free exercise in our neighbor to the North.

Leo begins his piece:

"Canada is a pleasantly authoritarian country," Alan Borovoy, general counsel of the Canadian Civil Liberties Association, said a few years ago. An example of what he means is Bill C-250, a repressive, anti-free-speech measure that is on the brink of becoming law in Canada. It would add "sexual orientation" to the Canadian hate propaganda law, thus making public criticism of homosexuality a crime. It is sometimes called the "Bible as Hate Literature" bill, or simply "the chill bill." It could ban publicly expressed opposition to gay marriage or any other political goal of gay groups. The bill has a loophole for religious opposition to homosexuality, but few scholars think it will offer protection, given the strength of the gay lobby and the trend toward censorship in Canada. Law Prof. David Bernstein, in his new book You Can't Say That! wrote that "it has apparently become illegal in Canada to advocate traditional Christian opposition to homosexual sex." Or traditional Jewish or Muslim opposition, too.

And he concludes with this:

The churches seem to be the key target of C-250. One of Canada's gay senators denounced "ecclesiastical dictators" and wrote to a critic, "You people are sick. God should strike you dead." In 1998, lesbian lawyer Barbara Finlay of British Columbia said "the legal struggle for queer rights will one day be a struggle between freedom of religion versus sexual orientation."

It's starting to be defined just that way in other countries. In Sweden, sermons are explicitly covered by an anti-hate-speech law passed to protect homosexuals. The Swedish chancellor of justice said any reference to the Bible's stating that homosexuality is sinful might be a criminal offense, and a Pentecostal minister is already facing charges. In Britain, police investigated Anglican Bishop Peter Forster of Chester after he told a local paper: "Some people who are primarily homosexual can reorientate themselves. I would encourage them to consider that as an option." Police sent a copy of his remarks to prosecutors, but the case was dropped. In Ireland last August, the Irish Council for Civil Liberties warned that clergy who circulated a Vatican statement opposing gay marriages could face prosecution under incitement-to-hatred legislation.

In the United States, the dominance of anti-bias laws and rules limiting free speech and free exercise of religion is clear on campuses, not so clear in the real world. Still, First Amendment arguments are losing ground to antidiscrimination laws in many areas, and once stalwart free-speech groups, like the American Civil Liberties Union, have mostly gone over to the other side. An unlikely split has occurred. In the interest of fighting bias, liberal groups reliably promote laws that limit First Amendment principles. The best defenders of free speech and freedom of religion are no longer on the left. They are found on the right.

David Bernstein, who is cited by Leo in the first paragraph, noted the article approvingly over at the Volokh Conspiracy and it recieved an apparently positive link at Instapundit.

This situation, of course, created a need for someone to defend the Canadian policy. Never one to shrink from a chance to bash Christians, Brian Leiter answered the call.

He begins:

This (error-ridden) recent item from the right-wing U.S. News & World Report criticizes the latest defeat for human liberty to befall the poor Canadians: namely, the loss of their right to freely express hatred for homosexuals, even (get ready for this!) when they have religious grounds for their hatred and bigotry. How will Canada survive if it doesn't follow the U.S. lead and acknowledge a blanket license for religiously-inspired hatred? Already, from the increasingly ridiculous right-wing corners of the U.S. blogosphere, we hear the mocking clucking of the libertarian pundits, "Pity poor Canada, they have no free speech."

I will simply note two things about this paragraph. First, Leiter declines to actually point to any errors in this piece. Second, if he thinks U.S. News is "right-wing," I think that tells us pretty much everything we need to know about his politics.

It doesn't get any better:

It is true that if you despise homosexuality, and if you want to freely express that view, especially on religious grounds, you're better off in the U.S. It's also true that if you're skeptical about U.S. motives in Iraq (and elsewhere) and think the invasion was on a par, morally, with the Soviet invasion of Aghanistan; if you believe nationalized health care is preferable to a system which caters to the needs of the insurance industry; if you think redistributive taxation is a requirement of justice; if, in short, you dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States, you will have far more freedom of speech in Canada: for example, your views might be expressible outside your living room, perhaps, say, in major newspapers, or even on television.

But how could this compare to the right to declare homosexuality a moral disorder based on divine revelation? Any country that wouldn't allow that would clearly have left the bosom of human liberty.

Now don't misunderstand me. Canada is a civilized country, and so the fact that Canada takes seriously the post-WWII European consensus--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity--makes perfect sense. But the U.S. is different. In the U.S. I much prefer our more-or-less "libertarian" regime governing speech, and for reasons Fred Schauer pegged two decades ago in his book on the subject: not because the "marketplace" of ideas, such as it is, will yield the truth, or because speech doesn't "harm" people (it does, all the time), but rather because there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment.

So I admire Canada, not so much for their approach to free speech, per se, but rather for having achieved a level of civilization that permits them to regulate expression without sacrificing the central values of the post-Enlightenment world. Nothing of human value is lost--let's repeat that, just to be clear, "nothing"--when the right to express contempt (whether dressed up in the language of morality and religion, or not) for Jews or Gays or Blacks is sanctioned. The marketplace of ideas, the search for truth, is unhindered. By contrast, when the marketplace of ideas is subject to the "discipline" of the actual marketplace and its corporate masters, then free speech and the search for truth suffer on a daily basis, as they do right now in America.

But don't expect the finger-wagging libertarians in the USA to notice.

I am quite confused. Does he really "much prefer" the U.S. approach, or does he actually prefer criminalizing certain speech as long he's not the one being locked up? He expresses concern that "there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment." However, apparently agents of the state in Canada somehow deserve much more confidence. I can't discern any reason for this except that they tend to be closer on the political spectrum to Professor Leiter and his view of the Objective Truth of the Universe.

I am also baffled by what he thinks free speech is actually about. Leiter says that you have more "freedom of speech" in Canada to express "dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States" because apparently here you can not express those opinions outside of your living room. Since I have never been in Professor Leiter's living room and I am still not safe from his dissent from the neoliberal paradigm, I will assume that he does not actually take this statement seriously. But his broader point about free speech does not make any more sense. The decisions of private third parties not to either (a) pass on your opinion to others or (b) listen to your opinion is not much of an infringement on your right to express your opinion. It is certainly not comparable to locking you up for expressing your opinion, no matter how "hateful" Brian Leiter might find it to be.

It is also interesting that Professor Leiter feels no need to go beyond the assertion that Canada's criminalizing of certain religious beliefs (or at least the verbal expression of those beliefs) does not "sacrific[e] the central values of the post-Enlightenment world" and that "[t]he marketplace of ideas, the search for truth, is unhindered." Apparently, since Professor Leiter has already found the Objective Truth of the Universe, there is no cost to banning opinions that do not conform to the Leiter Truth.

In addition, Professor Leiter either fundamentally misunderstand most religious opposition to homosexual behavior or he is being deliberately dishonest. At least in Christianity, there is no religious support for "contempt ... for ... Gays." Saying that certain sexual behavior is sinful is not equivalent to hating, especially when another central teaching of Christianity is that we are all sinners. Perhaps Professor Leiter thinks there is no distinction, but I certainly hope that we don't start banning particular religious views because of a certain law professor's inability or unwillingness to understand those religious views. Okay, Leiter might say, maybe some Christians really aren't being hateful when they attempt to uphold their standard of sexual morality, but there are other people who dress up hatred in religious garb. However, the Canadian legislation does not seem to make this sort of distinction, and the type of rhetoric Leiter is using doesn't seem to allow for this distinction. He seems much more interested in vilifying all traditional Christians as haters. That chills speech too, but I guess that is okay if it is speech that is not consistent with Leiter's version of the Truth.

Finally, I don't understand how Professor Leiter has any basis, other than his own political tastes, for preferring the censorship occuring in Canada to that which is supposedly happening here. I could baldly assert that being "skeptical about U.S. motives in Iraq (and elsewhere) and think[ing] the invasion was on a par, morally, with the Soviet invasion of Aghanistan" is so clearly contrary to the Truth that even criminalizing expressions of that belief does not "sacrific[e] the central values of the post-Enlightenment world" and that "[t]he marketplace of ideas, the search for truth, is unhindered." The same could be said about the belief that "nationalized health care is preferable to a system which caters to the needs of the insurance industry" or that "redistributive taxation is a requirement of justice" or any "dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States."

But of course criminalizing the expression of those opinions is unacceptable. After all, those opinions are not contrary to the Leiter Truth.


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