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Tuesday, June 30, 2009

Milke follows Levant down a dangerous road in his review of Shakedown

Milke_Mark9_6 Mark Milke with the Frontier Centre for Public Policy opens his review of Ezra Levant’s powerful new book on Canada’s so-called human rights industry with this:

It has the makings of a joke: What do you get when Canada's premier gay rights organization gets into bed with a conservative pastor from a small city in Alberta? Here's the non-funny answer: The birth of an unnatural alliance, one born from an attack on free expression.

The recounting of how Equality for Gays and Lesbians Everywhere (Egale) came to the rhetorical defence of a socially conservative Red Deer pastor, Stephen Boissoin, in his fight with the Alberta Human Rights Commission, is chronicled in Ezra Levant's new book, Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights.

Milke goes on to write a largely excellent review of a largely excellent book, but while he starts with a roar, he finishes with a whisper.

Milke concludes his review of Levant’s devastating critique of the censorship powers of Canada’s human rights commissions with this recommendation:

Instead, let the real courts deal with claims of discrimination, and not the fake/pretend bodies with their wide-ranging and too-often abused and unchecked powers.

To be clear, what Milke is arguing is that while Canadians should not have the right to complain to human rights commissions when they are offended by hateful language or other forms of expression, they do have a right to complain to the police and the courts when they feel discriminated against by private sector employers or landlords.

He is also arguing that the courts are better suited to handle these cases than human rights commissions as these commissions do not respect the rules of evidence or other procedural safeguards of the justice system.

But the answer to Canada’s out-of-control human rights industry is not to find fresh victims for human rights bureaucrats, nor is the answer to saddle these fresh victims with the crippling cost of defending human rights complaints in the courts. I have expressed this criticism before here and below, as Levant makes the same arguments as Milke:

But are bigoted landlords any different than bigoted publishers, which is not to say Levant was ever a bigoted publisher? Which is more dangerous to the public order? Why should human rights laws apply to one and not the other?

I wonder, for instance, if a Jewish landlord shaken profoundly by the events of 9/11, who refuses to rent to radical Islamists, preferring to rent to fellow Jews, would be an appropriate target for human rights commissions by Levant’s standard of justice.

Would Levant defend this Jewish landlord’s right to exclude Muslim tenants with the same vigour as he defends the right of Maclean’s magazine to exclude certain Muslim columnists from its editorial pages? Western Standard readers may recall that the four students at Toronto's Osgoode Hall Law School who brought a human rights complaint against Maclean's over an article titled “The Future Belongs to Islam,” by the legendary Mark Steyn, demanded access to the editorial pages of this magazine in the interest of balance and diversity. The management team at Maclean’s said “no,” exercising their property right to exclude. Did Maclean’s restrict the free speech of these Muslim student activists? Of course not. As Ayn Rand wrote, free speech “does not mean that others must provide [you] with a lecture hall, a radio station or a printing press through which to express [your] ideas.”

If we can restrict the landlord’s right exclude, why not the publisher's?

It might be unfair to ask of Levant that he take on the entire human rights industry, but in ignoring the importance of property rights he is creating weaknesses in his own argument and is making future reforms of these laws more difficult.

It might also be unfair to ask Milke to take on the entire human rights industry, but suggesting that the police and the courts investigate and prosecute the thought crime of discrimination is a monumental injustice that sets back the fight for free speech and expression and strips this concept of any meaningful legal and philosophical foundation.

Milke and Levant need to be careful not to provide legitimacy to these unjust human rights laws.

(Picture: Mark Milke)

Posted by Matthew Johnston

Posted by westernstandard on June 30, 2009 | Permalink


Spot on, Matthew. I cannot repeat enough times that in a truly free society there is no place for hate laws, much less state agencies to enforce them. Hate laws are about thought crimes, or rather what another claims he knew the perpetrator was thinking before and during his actions. It gets even worse when you move into the area of "discrimination" since personal freedom, religious freedom, private property rights and the right of association are immediately thrown out the window.

Posted by: Alain | 2009-06-30 10:51:35 AM

"If we can restrict the landlord’s right exclude, why not the publisher's?"

Your question points out an interesting difference among those of us who oppose laws that restrict free speech. Some say that such laws are wrong for a government to impose because it is not possible for any government to have the legitimate authority to do so. Others say that such laws are wrong not because governments lack the legitimate authority to make and enforce them, but because such laws are a very bad idea.

People who think governments lack the legitimate authority to make and enforce speech restrictions also often think it is a very bad idea to do so, independent of the legitimacy issue. So those folks often use "very bad idea" type arguments when expressing opposition to speech restrictions. As a result, it is sometimes not clear if an opponent of speech restrictions thinks "very bad idea" areguments are the only ones or not.

So to answer your question ("If we can restrict the landlord’s right exclude, why not the publisher's?"), there are many people who would say that we can restrict the publisher's right to exclude, but doing so would be a very bad idea. By contrat they would also say that we can restrict the lanlord's right to exclude and doing that is not a very bad idea. They might suggest that shelter is a greater basic need than the need to have one's views published in a magazine. Similarly, the basic need to have a job to make money and to be able to go into a store to buy food to eat makes employment and consumer protections good ideas, while still maintaining that controlling publishers is a very bad idea.

So, in sum, those who think there is no principled reason to oppose control of landlords probably have to also think that there is no principled reason to oppose control of publishers. But that does not mean they have to think that either both are good ideas or neither is. There is more complexity to the arguments than that.

Posted by: Fact Check | 2009-06-30 11:17:04 AM

Matthew, well said. I wonder though if Levant would in fact defend the rights of bigoted landlords. I am guessing he would. And in my opinion, they should be defended.

Posted by: TM | 2009-06-30 11:26:29 AM


I am part of the former group. I firmly believe the government has no right to tell someone how to run their business (since they are not the ones risking anything).

That said, what makes you think that the laws actually help people with access to shelter? When entrepreneurs' property rights are violated, it discourages others to enter the market, driving up prices and making it more difficult for everyone to have access to affordable places to live. It's classic unintended consequences.

Posted by: Charles | 2009-06-30 12:03:42 PM


"That said, what makes you think that the laws actually help people with access to shelter?"

What makes you think that I think that? I argued no such thing. I merely pointed out two ways that people think about these issues, but endorsed neither.

"When entrepreneurs' property rights are violated, it discourages others to enter the market, driving up prices and making it more difficult for everyone to have access to affordable places to live. It's classic unintended consequences."

That sounds good in theory, but for it to apply to the case of HR laws you would have to think that people would be reluctant to run appartment buildings or to rent out flats because the HRA says they cannot exclude renters based on race, etc. That strikes me as wildly implausible. I also know of no evidence that there is or ever has been a housing shortage in Canada (or anywhwere else) because supply was limited due to such reasoning. Unless you can show such reasoning, then there is a strong empirical argument that you are wrong about the effect of HR restrictions on landlording.

Posted by: Fact Check | 2009-06-30 12:13:53 PM

Fact Check, it is not easy to prove there is housing shortage, but it is also not easy to prove there is not. About the only evidence to support the former is that it appears that most people live in some form of a house. What that does not show is how the availability and prices affect the choices people make. If government policies affect investment, and investment affects supply, then the choices people make are affected. To what degree is the question.

Posted by: TM | 2009-06-30 12:41:14 PM


So, to be clear, you think that if there were no HR law saying that landlords cannot refuse to rent to people based on race or religion that it would be less difficult for everyone to have access to affordable places to live? And you say that after acknowledging the absence of empirical evidence? Quite the powerful Kool-Aid you have there!

Posted by: Fact Check | 2009-06-30 1:04:47 PM

"Would Levant defend this Jewish landlord’s right to exclude Muslim tenants with the same vigour as he defends the right of Maclean’s magazine to exclude certain Muslim columnists from its editorial pages."

It's a bad argument. Macleans didn't deny the sockpuppets space in their magazine because they were Muslim. They denied them the space because their demands were unreasonable (there would be no chance to edit the piece, they wanted to choose the cover for that issue, etc.) Or, if you like, because they didn't feel like it.

If they had said: "you can't write for Macleans because you are Muslim, and we refuse to let Muslims write for us" then that MIGHT be equivilent to a landowner with a "no -insert group here- allowed" sign. As it stands, it's a false comparison.

Posted by: Ben Hicks | 2009-06-30 2:15:24 PM


My apologies. I didn't make my position very clear in my previous post.

To begin, you are right. I have never seen a study which directly looks at the issue in that specific industry for those specific laws. I base my opinion on empirical evidence that shows that laws which violate property rights in other industries have a detrimental affect on supply and pricing. I honestly don't see why it would be any different in this case.

1. When property rights are violated, regardless of the reason, it sends the message that you cannot do what you want with your property. The problem is someone took the risk to finance this endeavour and now is open to the unpredictable whims of the state. It has clearly been shown that countries which respect property rights have more economic growth, lower prices, and a better standard of living. I can tell you for a fact that entrepreneurs and investors take this into consideration when deciding whether to enter a country or industry. I, as a professional investor, certainly do.

2. You're being naive if you think there are no costs to anti-discrimination laws. The most obvious is risk of lawsuits and fraud. Existing businesses will price that risk into their margins. Renters will pay for the lawsuits and the fraud. But what also happens is that potential competitors will also take this into account and decide not to enter the market (in other words you have an artificial barrier to entry). This has been shown in many industries. So again, I see no reason why it would be any different in this case.

3. I also see no evidence that these laws actually have worked. It seems much more likely that the change is due to cultural changes.

Posted by: Charles | 2009-06-30 2:57:08 PM

Fact Check,

You make an interesting and useful distinction between the legitimate exercise of government power and an all-things-considered judgment about the value or moral worth of the states-of-affairs governments can bring about when they exercise their power.

That's how I'd put it, anyway. Your locution is a little more concise. :-)

Prohibiting racists from spouting their racist beliefs is an illegitimate exercise of political power. So is (perhaps) prohibiting racists from discriminating against blacks in their hiring practices. This doesn't mean that both prohibitions are equally bad ideas.

Indeed, the fact that a certain prohibition is an illegitimate exercise of political power doesn't tell us that the prohibition would be bad, on balance, at all. It merely tells us that it would be bad in one respect. There are other respects in which the prohibition might be a very good thing.


One thing: don't you think that there might be a connection, in some cases, between legal change and cultural change? For example, forced integration of schools and workplaces might show racist whites that black folks aren't so bad after all, which could in turn lead to greater cultural acceptance.

Posted by: Terrence Watson | 2009-06-30 4:54:19 PM

Mathew - I agree with you as a matter of principle, but I think that getting rid of anti-discrimination laws is a non-starter politically. I am also not convinced that a clearly defined limitation on freedom of association - say, if you are a business open to the public you can't discriminate on certain grounds (race, religion) - constitutes a serious violation of liberty.

Terence - in what other respect would an illegitimate use of state power be good?
Also, re the schools, you could make the argument in reverse - that without a decline in racism in the society at large you would never get these kinds of laws/programs passed in the first place. In other words, the kinds of societies that have anti-discrimination laws are the very ones that need them the least.

Posted by: Craig | 2009-06-30 6:29:01 PM

Given the nature of democracy, Craig, your "argumemt in reverse" is likely.

Posted by: Matthew Johnston | 2009-06-30 6:33:37 PM

Sorry Terrence and Craig the track record of "anti-discrimination" laws does not support your theory. I have noted too often how it has been abused, in particular with hiring. With such laws, an unqualified applicant or new employee found unsuitable, who belongs to any of the designated protected groups, only has to claim that his or her rejection was due to discrimination. Most employers prefer not to have to go to the trouble and expense to prove otherwise, especially since the existing system considers them guilty as charged. You would be hard pressed to find an employer who will reject the most qualified applicant due to his colour, sex or what ever. The same goes for landlords letting houses or flats. Finally we either support private property rights or we do not; there is no half-way measure, just like freedom of speech.

Last of all what many fail to understand is that these anti-discrimination laws produce that which they claim to eliminate. The majority of people are opposed to special protection for certain groups and end up resenting those groups due to their special treatment, whereas otherwise they were, if anything, indifferent to them. It is Human Nature 101.

Posted by: Alain | 2009-06-30 7:57:13 PM

Alain, agreed. I would also add that in the long run, discriminators are hurt by their actions compared to their non discriminating competitors.

Posted by: TM | 2009-07-01 9:29:30 AM


Sorry it's taken me a while to get back to you. But as to your question about how an illegitimate exercise of power can be good (or bring about good), here's what I had in mind:

There's a distinction some people like to draw between the right and the good. If I promise you I will tie my left shoe before my right shoe each day for the next week, it is right for me to keep that promise. But, more or less, the state of the world is unchanged no matter which order I tie my shoes in. Tying my shoes in one way is no better, objectively speaking, than tying them in the other way.

Now suppose we think that the limits of government power are set through some kind of hypothetical social contract (lots of problems with this view, but a lot of people hold it.) In effect, the government makes a promise not to behave in certain ways. It's wrong (in some sense) for the government to break its promise, just as it would be wrong for me to break my promise about tying my shoes in a certain order.

It also happens to be that when government breaks its promise, it often brings about disvaluable states of affairs (in this way, government is unlike the shoe tying example.) But not always. Or, at least, I'd need to see an argument that breaking the promise always coincides with the bringing about of bad states of affairs.

It's pretty clear to me that, outside of issues of politics, we can think of many cases in which breaking a promise (while wrong) can nevertheless lead to a better world. Forced integration of public schools may be a case like that, although much depends on the actual impact of such policies.

Posted by: Terrence Watson | 2009-07-01 12:35:35 PM

Terrance, I was thinking the other day that freedom is a bit messy. Statism can perhaps bring about more order. That could easily be a benefit to some degree, though it would not come without a cost. In the long run I believe the cost is too high.

The example of forced integration of public schools that you give may in fcat bring about some benefits. However, the classical Liberal types would argue that no public schools whatsoever would bring about more benefits in the long term. Even if it is a bit messy.

In the cases where there are real benefits short and long term, and to the greatest number of people, I would still oppose it on moral grounds.

Breaking promises is acceptable for sure in some cases. I once promised my son I would spank him for a minor infraction that was causing me considerable irritation. After he committed the offence again, I realized I really did not want to spank him and promptly broke my promise and convivcted him of a lesser offence.

Posted by: TM | 2009-07-01 12:57:34 PM

That the road to hell is paved with the best of intentions remains forever true, which is why I reject that the state has a role to play in social engineering. Mao, Stalin, Hitler and all the others were also convinced that they had the best of intentions.

Posted by: Alain | 2009-07-02 1:26:49 PM

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