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Friday, September 26, 2008
Paul McKeever: Freedom and the proper regulation of speech
In his contribution to the Western Standard's freedom of speech & expression week, Freedom Party of Canada leader Paul McKeever lays out the limits of protection of free speech to those laws which " prevent governments from outlawing speech that does not deprive an individual of control over his own life, liberty or property." McKeever uses a definition of freedom which will be familiar to those who have read the works of the novelist and philosopher Ayn Rand:
"Freedom is control. Specifically, it is control over one's own liberty and property; over the pursuit of one's own survival and happiness. The role of government is to ensure that no other person causes you to lose that control; that no other person deprives you of your freedom.
A person can use physical force to cause you to lose control over your own life, liberty or property: he can use a gun to murder you, enslave you, or rob you of your cash. However, physical coercion is not the only method for denying you control over your life, liberty or property. It can be done with “speech”; with words."
Among these types of 'speech' which can deny freedom McKeever includes fraud, which eliminates control by undermining consent. He then takes aim at free speech 'absolutists' and goes further than many libertarians in defending prohibitions on defamation, likening it to fraud, as another case of:
"misrepresent[ing] the facts of reality so that others will draw an erroneous conclusion about his intended victim. He thereby may deprive the victim of those values -- whether material (e.g., lucrative contracts from clients) or spiritual (e.g., the admiration of another person) -- that the victim has or would otherwise have obtained."
Posted by Kalim Kassam on September 26, 2008 | Permalink
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Comments
Paul McKeever's article is very good. I agree with just about everything. My main disagreement is that he makes it sound like a clear, bright line can be drawn between speech that ought to be protected and speech that can rightly be restricted. I think the distinction can be made (and right where McKeever makes it, too), but I also think it is not as clear-cut a line. To see how the line gets blurred, take this paragraph from McKeever's article:
"For the same reason, government rightly imposes and enforces laws against defamation. The defamer falsely claims another person to lack a value (e.g., skill in his trade), or to have a disvalue (e.g., an history of criminal conduct); he misrepresents the facts of reality so that others will draw an erroneous conclusion about his intended victim. He thereby may deprive the victim of those values -- whether material (e.g., lucrative contracts from clients) or spiritual (e.g., the admiration of another person) -- that the victim has or would otherwise have obtained. When such losses occur as a result of a defamation, the law rightly punishes the making of such false claims by forcing the defamer to compensate his victim or otherwise pay for the loss his words allowed him to cause."
This all sounds right to me, but to someone (not me) who thinks hate speech laws are ok, the next move is this: If a defamer is someone who falsely claims another person lacks a value, has a disvalue, or misrepresents the facts so others draw erroneous conclusions, thereby depriving the victim of those values, what about the same thing when said about groups? "Jones is dishonest" is defamatory when the speaker can't prove its truth. So why shouldn't "Jews are dishonest" be regarded the same way? "Jones is stupid" can be defamatory, so why not "Black people are stupid"? "Jones is lazy" can be defamitory, so why not "Native people are lazy"? The effect that saying the same thing about groups of people that one might say about an individual can be just as bad, if not worse given the sheer number of people who are defamed.
Then the next move is to say that more general expressions of hatred and contempt that do not specify particular qualities lacking in certain people, but recommends a general disregard for them, can also have the exact same effect as defamation. So if defamation can be prohibited, then defamation of groups can be prohibited and even general hate speech can be prohibited.
Now, as I said before, I agree with McKeever on where to draw the line, so I do think a response can be made to someone who might make this argument. But I don't think it is as simple as showing them a bright line or seeing their argument as fundamentally lacking logic. There is a logic there and the difference is one of degree, not kind. This is part of why it is a hard thing to convince a hate speech law advocate to change their mind.
Now I expect some libertarians who oppose defamation law will read this and think, "Ah, but what you show is that the logical extension of defamation is group defamation protections, if not hate speech laws. So much the worse for *any* defamation law." That's not an unreasonable conclusion to draw (even though I disagree with it). But it would still be no more of a clear, bright line between what should and should not be protected, since it becomes harder to say why defamation is different in kind from perjury, for example. Both are lying about people that can result in losses of liberty or property. But surely even a crazy libertarian would not oppose perjury laws, would he?
Its an interesting and thoughtful article. So how'd it end up here? ;-)
Posted by: Fact Check | 2008-09-26 5:28:36 PM
Thank-you for your kind and thoughtful assessment Fact Check. No doubt you are right that some people would try to make the arguments you mention in favour of broadening the prohibition. Here are just a few thoughts:
1. Unlike in human rights cases, truth is a defence in defamation cases. It does not matter how much a person's feelings are hurt, or how much loss they've suffered, if the statement made about them is true. Thus, were Stalin still alive, he would not be successful in suing me for saying "Stalin caused the murder of millions of people".
2. We can use an easier example than calling all of group X stupid or dishonest. For example: "Every Canadian atheist over the age of 30 has robbed a bank in the past". Such a claim is not believable on its face, to a rational person (though the law usually uses the ambiguous term "reasonable person", not the much less ambiguous term "rational person", as the person recognized in setting the law's standard). Such being so, the claim arguably could cause no actionable harm. Similarly to say that "all Xs are stupid" would not withstand such facts as "Some Xs are Nobel Prize winners" or "Surprise! The judge is an X".
Now, to be sure, whether something is believable/not believable, harmful/not harmful, is a question of fact to be decided by a human being (or a group of them sitting as a jury). So, you are correct, the line is not bright and sharp, but it is probably no less bright and sharp than many questions of fact in criminal, contract, or other cases. What the law requires is not infallibility, but a rational evaluation of the facts and evidence, and a rational application of the law. I think defamation law allows rational efforts to get it right most of the time.
3. That said, I do not think we can rule-out "group" defamation altogether. For example, if there are 6 Xish people living in a town of 100,000, and Bloggs says "Every X in this town will defraud you if given the chance", I say: every X in town should sue Bloggs for compensation for all of the loss he has caused them to suffer. Imagine, for example, that all 6 Xs were owners and employees of a bank?!
4. Are there libertarians who would oppose perjury laws? I have no doubt there are some. If a person essentially is arguing that lying about others is not actionable even when it causes them loss, I cannot see how they can maintain that position and not oppose perjury laws...unless they're being irrational (hmmm...maybe that implies there is NO libertarian who opposes perjury laws...kidding).
Posted by: Paul McKeever | 2008-09-26 7:08:26 PM
FC
"This all sounds right to me, but to someone (not me) who thinks hate speech laws are ok, the next move is this: If a defamer is someone who falsely claims another person lacks a value, has a disvalue, or misrepresents the facts so others draw erroneous conclusions, thereby depriving the victim of those values, what about the same thing when said about groups? "Jones is dishonest" is defamatory when the speaker can't prove its truth. So why shouldn't "Jews are dishonest" be regarded the same way? "Jones is stupid" can be defamatory, so why not "Black people are stupid"? "Jones is lazy" can be defamitory, so why not "Native people are lazy"? The effect that saying the same thing about groups of people that one might say about an individual can be just as bad, if not worse given the sheer number of people who are defamed."
Interesting point. However, as you know, saying something about a group is considered a GENERALITY.
Do you consider it DEFAMATION when someone says
"Women mature faster than men."
"Native Americans have more respect for their environment."
"Europeans are more sophisticated than Americans."
"Asians are more hardworking and smarter than whites."
"Muslims belong to a religion of peace."
"Canadians are more tolerant than Americans."
Shall I continue? Are you just as concerned about this kind of "back-door" defamation?
Should it be prosecuted?
Posted by: h2o273kk9 | 2008-09-26 7:37:56 PM
Paul,
Nice reply. I can't disagree with any of that.
Posted by: Fact Check | 2008-09-26 7:46:07 PM
FC,
Nice non-reply. That tells me a lot.
Defamation is in the eye of the group beholder.
Posted by: h2o273kk9 | 2008-09-26 7:57:26 PM
Yawn!
Pro-group stereotypes are just anti-other-group defamations in disguise.
Bigotry is bigotry whether you support one group or oppose another.
Fact check said quite clearly
"So if defamation can be prohibited, then defamation of groups can be prohibited and even general hate speech can be prohibited."
So promoting one group as superior to another in ANY category is, by defintion, defaming another (or all other) group by definition, Fact Check is advocating that this be prohibited.
The logical next step is to start prosecuting all those special interest groups that support, well, special interest groups.
Logically it follows that failure to prosecute ANY single special interest group is tantamount to supporting a special interest group as superior, thus, you support their unique and special stereotypes as valid, thereby, making the arbitrator a bigot and therefore, subject to the same penalties.
Either all are guilty or all are free.
Fact Check
Are you guilty or should you go free?
Posted by: h2o273kk9 | 2008-09-26 9:44:45 PM
Nice article, Paul. I have a couple questions on this topic of freedom of speech:
1) You said "...government rightly imposes and enforces laws against defamation."
I just finished a case in BC Supreme Court where the judge concluded that the government defamed me. How does the government impose and enforce laws when it violates them? Is it reasonable for the court to let the government off the hook with a "fair comment" defence?
2) Some have characterized my description of certain Libertarian Party officials as "failed embezzlers", due to their foiled attempt to embezzle a riding association bank account. The official party response to my providing this information (which the embezzlers reluctantly admit is accurate) is to censor me on all public party communications. Isn't that censorship a violation of party principles?
Posted by: Ken Wiebe | 2008-10-12 1:22:50 PM
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