Monday, June 09, 2008

Remember Free Speech?

It may surprise you to know that in Canada news magazines are apparently not private property. Such is the only conclusion that can be drawn from watching the show trial of Mark Steyn at the hands of the British Columbia human rights tribunal, which is I suppose the farce to Stalin’s tragedy. For those of you not familiar with the case, Mr. Steyn wrote a best-selling (both in Canada and the U.S.) book called America Alone: The End of the World as We Know It. I reviewed it as part of my survey on the literature of Euro-doom, and its basic thesis is that because of demographic factors and insipid multiculturalism, Europe is likely to become an Islamist land. This in turn is a thing to be mourned because of the retrograde nature of the Islamist culture being imported into the old gray continent. The language is often rollicking, the sort of thing likely to draw scolding in faculty lounges. And now, apparently, it is actionable.

Excerpts of the book were printed in the Canadian newsweekly Maclean’s, which was subsequently pusued before several human rights tribunals (much as ambulance chasers down here look for the plaintiff-friendliest jurisdictions in which to file their claims) on charges of, as I understand it, making it likely that Canadian Muslims would be exposed to hate. Remarkably, the plaintiffs asked for the right of reply in Maclean’s – not as a letter, but as an article of equal length to Mr. Steyn’s book excerpt. Even more remarkably, as I understand it, the BC tribunal has the power to order this remedy.

The magazine’s lawyers have done the common law and its traditions proud (see its publisher scold a human-rights tribunal rep by having the audacity to mention, you know, centuries of Anglo-American legal heritage here) by mounting a vigorous defense. But the battle is already lost. In the last day of Maclean’s live-blogging of the event, lawyers for the magazine are already arguing on the turf of censorship:

Now going through the relevant provision of BC human rights code: anything that “is likely to” expose members of identifiable group to hatred or contempt. Based on Sect. 13.1 of federal human rights code. Invoking the Supreme Court’s Taylor ruling — both sides agree on this — with its definition of hatred: “extreme ill will and an emotion that allows for no redeeming qualities” in the person at whom it is directed. Also involves “unusually strong and deeply-felt emotions of detestation, calumny etc.” Intent was clear in definition — that definition was meant to be reserved for only the most extreme cases, and not to chill expressive activity.

Must be an objective test of whether hatred present — central question of law. Citing case law: It’s not how particular individuals understand a message that qualifies it as hate speech — must use an objective approach, ie the reasonable person standard.
Collins decision (actually decisions — there were two cases) are “of uncertain value.” Made clear in the text of these decisions that tribunal considers itself an administrative tribunal and and as such is not bound by previous decisions, ie precedent does not have the same weight as in regular courts. So Maclean’s suggests tribunal not emulate approach followed in those decisions, which applied “unnecessarily complicated” tests In balancing free speech against other concerns.

This reminds me of the jurisprudence that goes on over eminent domain, government regulation of the labor market and other longstanding infringements of the rights to property and contract down here. The fundamental principle – that these are second-tier freedoms, to be circumscribed as necessary in the name of the public interest – is now well-established in American law, and free speech appears irrevocably headed down that road in Canada. That it is not in the U.S. is said to be a function of the First Amendment, but absent eternal vigilance the First Amendment too is just paper.


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