Freedom of expression

The importance of this timely debate can be realised when we look at the media attention given to the issue of freedom of expression. In the past week, for example, shooting in Garland, Texas increases the necessity of this debate and, CNN’s Amanpour becoming Goodwill Ambassador for Freedom of Expression & Journalist Safety, emphasizes the necessity of this right. However, whether this right authorises to insult or not, the audience seems to think otherwise, so far. Since the commencement of this debate, the voting statistics have indicated that the majority sides with the opposition. Nevertheless, we shall witness if there is a change of opinion over the next week as our debaters submit their rebuttal statements.

With their opening statements, both debaters have put forward their arguments well-articulated backed with reasoning and examples. To summarise for our audience who have just joined in; Ms. Hilary Stauffer, while defending the motion highlighted some important points in her opening remarks. She explained the American position on free speech and then highlighted the major human rights instruments which talk about the notion of the freedom of expression. The proposer also stated that nowhere around the globe is freedom of expression a completely unrestricted right. Ms Stauffer believes that the process to change of our mind and to evolve our thinking rarely happens unless our biases are tested and provoked. Ms. Stauffer argued that, though sometimes, people choose to be told by the government or religious leaders that how to think and feel but this also carries the possibility that those authorities may have their motives not in their interest. Sometimes, government may restrict free speech in favour of one particular group to discriminate against others. Lastly in her opening statement, Ms Stauffer talked about Charlie Hebdo's publication, that though she found them insulting on a personal, visceral level but being advocate of freedom of expression, she finds the solution of not buying its copies and not visiting its website.

Opposing the motion, Dr. Jameson W. Doig believes that censorships on freedom of expression should be codenamed and elaborated the US situations under which penalties can be imposed if free speech is abused. He states that ‘right to insult’ is protected from legal action as a consequence of interpretation of first amendment by the Supreme Court of America. Dr. Doig criticized the position taken in Bredenburg v Ohio (1969) in which the Supreme Court laid down that insult is legally acceptable unless it urges imminent action against targeted group or individual and such action is very likely to follow. It thus implies that acts like burning a cross in the yard of an African-American or paste a caricature of African-American or write ‘Niggers’ on the doors of college students and publication of graphically explicit material are all protected under the doctrine of freedom of expression. Dr Doig also referred to Canadian position on the issue, to which he favours, articulated in the case of Queen v Keegstra. In this case, Chief Justice Brian Dickson explained the “underlying values” of a democratic society, which include “respect for the inherent dignity of the human person” and “respect for cultural and group identity”. Permitting abusive speech thus, raises the possibility that some members of society would believe the messages conveyed, “leading to discrimination, and perhaps even violence, against minority groups”. Finally, Dr Doing argued that Brandenburg (American Standard) and Brian Dickson (Canadian) Standard could be used to declare Charlie Hebdo’s mockery hate speech and hence illegal.

We also had the honour of having interventions by our featured guests, Dr. Brian Klug and Prof. Geoffrey R. Stone. Dr. Brian Klug argued against the motion and emphasized on the importance of living standards in a society. He stated that the kind of society he wants to see is based on the principle that every member has inherent dignity and equal worth because he affirms this principle that he believes in the right to freedom of expression – and not in the right to insult. Dr Klug avowed that as we do not affirm the right to lie, the right to deceive, the right to betray a confidence or the right to be callous – exactly the same applies to right to insult.

Prof. Geoffrey R. Stone argued that hate speech hurts people, it hurts their feelings, it makes them less likely to speak out, and it causes discrimination. But all speech causes harm. He gave the example that when he calls on a student in class and demonstrate that he doesn't understand the material, it hurt his feelings, make him less likely to speak out, and cause other students to think less well of him. Prof. Stone believes that speech cannot be subject to restriction merely because it causes harm, as ‘one man’s free speech is another man’s hate speech’.

Our respected audience also contributed to the discussion with various comments, opinions and diverse point of views. As we enter into the rebuttal phase, we look forward to another phase of lively and insightful discussion. Let’s see what our debaters have to say further about their counterpart’s arguments and how the audience responds to their rebuttal remarks via votes and comments.

The breadth and depth of intelligent opinion from my fellow contributors highlights perfectly just how much of a hot-button issue this topic is: totally worthy of intense debate. The comments from readers are very much appreciated as well, although in some cases people just seem to be stating their own long-held personal opinions, rather than reactions to all the individual interventions from myself, Dr. Doig, Dr. Klug and Prof. Stone. I would welcome reactions, even if you disagree with me, so we can see if we are being at all persuasive in our arguments.

I will lead by example in this regard, and use this rebuttal to react to my fellow debate participants. I will start with Dr. Klug’s intervention, whose emphasis on the values embodied within the Universal Declaration of Human Rights (UDHR) perfectly embodies the eloquence missing in so much of modern discourse. I totally agree that the inherent dignity and equal worth of all persons should be respected, and think that Dr. Klug believes, as I do, that “universal” means “everybody”: people of different genders, races, religions, ethnicities, nationalities or sexual orientation. Too often, we are very willing to “defend” the rights of those who resemble us, while being equally willing to demonize those who do not.

However, where I respectfully disagree with Dr. Klug is on his reliance on the UDHR, which is at heart an inherently aspirational document. It is not binding law; rather, it reflects the BEST of what society hopes we can achieve. As a human rights lawyer, I fervently wish the articles of the UDHR were uniformly endorsed and followed. But they aren’t, and so we can’t look to them for anything more than moral persuasion. Moreover, I think his wish to live in a society where no one is subjected to the “tyranny of the insensitive” is rather overstated. The insensitive, insulting members of society are only ever outliers—which is why their actions are so shocking. The “freedom” to insult is NOT a “duty” to insult. The fact that we CAN do something doesn’t mean that we will. It’s very unlikely that society will ever devolve to a point where the initial interaction between most people is one of rudeness and abuse. However, I still maintain that rude and abusive people—as unpleasant as they are—may be truth-tellers that help society at large challenge superstitious or outdated thinking. Silencing them for fear of causing “offense” restricts honest, necessary discourse.

Turning to Dr. Doig, he makes a compelling case for the TYPE of inflammatory speech that could, conceivably, be restricted: what possible good can come from misogynistic rap lyrics which demean and objectify women? Or statements which reinforce long-held and inaccurate stereotypes about black people, Jews, or Muslims? Well, actually, a great deal of good can come from such offensive speech: being forced to confront distasteful beliefs helps us, as a society, determine what we are comfortable with, and what we aren’t. No one is arguing, as Dr. Doig suggests, for absolutism. Freedom of expression is not an unrestricted right. When we are confronted with opinions, thoughts or belief systems that do more harm than good, we can—COLLECTIVELY—decide that such speech should be regulated. But I would still very much prefer this to be the last resort, not the first line of defense. What is insulting to one person or a small minority cannot be the yardstick by which freedom of expression is measured.

In this regard, I would like to elaborate upon a concept which Prof. Stone introduced, which is the notion of “ideas” – for it is here that we have arrived at the crux of the matter. There is a difference between hate speech and insulting ideas. The former may actually harm PEOPLE—by inciting violence against them. The latter merely hurts your feelings, which is something you can usually survive without any imminent threat to your well-being. Ideas, after all, are completely mutable and capricious; things that we all “knew” to be true 400 years ago have since been completely disproven…remember when it was considered religious blasphemy to posit that the earth revolved around the sun?

Moreover, it is a false equivalence to allege that insulting ideas is the same thing as insulting people. For example, it is absolutely OK to question the policies of the Israeli government; it is never OK to imply that “all” Jewish people are thieves or baby-killers. It is absolutely OK to question certain extreme interpretations of the Islamic faith; it is never OK to imply that “all” Muslims are terrorists. It is absolutely OK to question the culture of extreme hierarchy and secrecy which exists in the Catholic Church; it is never OK to imply that “all” priests are child-molesters. These examples demonstrate an important dichotomy: the former statements all question IDEAS (which some people may nonetheless find insulting); the latter statements can be used to justify extreme actions against PEOPLE (which should be a frightening concept to all of us).

In conclusion, I would like to address some of the comments which seem to suggest I am trying to defend the position that “freedom of expression means the right to insult without any consequences.” I don’t believe this to be true. The fact that you choose to use your freedom of expression to insult someone else may very well have negative consequences: you could lose their friendship; you could lose your job; or in extreme situations, you could lose your life. Those are all possible outcomes to your intemperate actions. However, I return here to my original point: we cannot often predict the reactions of others, and therefore shouldn’t seek to be pre-emptively restrictive. You could use poor judgement to insult someone, and they could just decide to ignore you and walk away. Both of you should have the free will and agency to choose your course of action, even if the results are unpleasant. We should trust each other enough to test boundaries: we can handle it.

As Brian Klug points out, the UDHR affirms both the “right to freedom of opinion and expression” and the importance of respect for the “dignity and worth” of all persons. But “freedom of expression” can lead to behavior (such as burning crosses and caricaturing Mohammed) that some find insulting, and that are likely to lead some of those whose persons or religions are attacked to withdraw from social relationships with persons of other cultures and ethnicities, thus silencing them – undermining their ability to express their views publicly.

However, efforts to punish those who engage in insults or other “hate speech” will generate some cost. Laws to restrict such behavior might, as Hilary Stauffer indicates, block us from obtaining new information that would challenge our “outdated ideas and ingrained biases.” And, as Geoffrey Stone argues, such laws – if employed by government officials – may prevent us from having important discussions of contested issues, such as the right to marry someone of a different race, the conditions under which abortion may be legal, and the question of gay marriage.

These are reasonable concerns, but it is important to note that in the United States, and in other nations with a tradition of individual liberty, freedom of expression is already curtailed in various ways. In the US, the judiciary blocks expression that is labeled as “obscene”, while permitting “pornographic” expression; the criteria used by the courts to distinguish between the two are widely viewed as unclear and probably analytically indefensible. Also, when an individual is alleged to have been defamed, the courts justify censorship if defamation is proven.

Obscenity and defamation are usually labeled “low value”, in contrast to other expression, which is labeled “high value”. In his writings, Stone has indicated that “high value” expression is so labeled because it contributes “affirmatively to public debate” or “appeals to the cognitive processes of the audience”, and he argues that the Supreme Court has correctly concluded that hate speech does not fit the “low value” category – i.e., that hate speech is “high value” as defined above.

Why has the Supreme Court accepted that position? In Stone’s view, there are two reasons. The first is that there is “no history of regulating such speech in the United States”; that conclusion may be a bit overbroad. Second, Stone argues, “no category of low value speech” can be defined “by the IDEA that it expresses”; and hate speech, since it expresses an idea (even if it is a racist or Islamophobic idea) must therefore be protected. But defamation conveys an idea and yet can be censored; and obscene photos surely convey an idea and can also be prohibited by law. So it may be reasonable to consider hate speech as a strong candidate for legal restriction – as “low value” expression.

At this point, Stone appear to argue that since hate speech expresses “an idea”, to regulate hate speech is to open the door wide to government censorship of all ideas, which could then be treated as “low value” expression. As he says, “Once we permit the majority of our fellow citizens to decide which ideas are of only low value”, all kinds of mischief might follow. In Alabama and other states, for example, local sentiment might result in banning interracial marriage and block all abortions. However, in the United States, Canada and other nations with a Constitution and a court system that must consider “equal protection” and “privacy” considerations, the majority of citizens cannot override Constitutional rights such as those listed by Stone.

Hilary Stauffer suggests another kind of disadvantage, if legal restrictions on insults (hate speech) were permitted: Criminal misbehavior (for example, pedophilia among Catholic priests) would be more difficult to examine, if those with evidence remain silent because their accusations might violate hate-speech laws. But laws against defamation already allow an individual who alleges criminal behavior to respond by showing the truth of the allegation. This standard would continue to apply in the cases suggested by Stauffer.

In order to further clarify my position in favor of laws that restrict hateful expression, let me comment briefly on two kinds of hate speech currently in the news. First is hate speech directed against an individual. As I indicated in my opening statement, I believe that Virginia v. Black was wrongly decided: burning a cross near the home of an African-American family should be punishable without probing the intent of the cross-burner. A case currently before the Supreme Court, Elonis v. United States, offers another opportunity for the Court to protect individuals who are faced with threatening speech. In this case, A. D. Elonis sent a series of internet postings to his estranged wife, describing several specific murderous efforts he might undertake, directed at his wife and children – though he then noted parenthetically that, in view of the Court majority’s argument in Black, he would not “intend” to carry them out; his wife was fearful for her life, and Elonis was convicted of making true threats. The ACLU and the Cato Institute have supported his petition before the Court; they argue that as long as Elonis says he did not intend to carry out the threats, his behavior is protected under the First Amendment. That position provides far too much protection to threatening and hateful expression.

Finally, I should mention the efforts of Pamela Geller and her allies to engage in hateful expression directed against Muslim traditions. As the New York Times wrote editorially on May 7, those efforts are exercises in “bigotry and hatred” against Muslims that are likely to “exacerbate tensions and give extremists more fuel”. So the First Amendment appears to protect those who would inflict “deliberate anguish on millions of devout Muslims who have nothing to do with terrorism.”

As they do in Canada, courts in the United States and other nations should give greater weight to respect for “cultural and group identity” and for “individual dignity” in weighing efforts to curtail verbal and other expressions of abuse, which fly low under a banner called “Freedom of Speech.”

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