When someone says “it’s not about freedom of speech,” it’s definitely about freedom of speech

The Trudeau government may extend the fight against COVID-19 to limiting what you and I can say about it:

The federal government is considering introducing legislation to make it an offence to knowingly spread misinformation that could harm people, says Privy Council President Dominic LeBlanc.

LeBlanc told CBC News he is interested in British MP Damian Collins’s call for laws to punish those responsible for spreading dangerous misinformation online about the COVID-19 pandemic.

LeBlanc said he has discussed the matter already with other cabinet ministers, including Justice Minister David Lametti. If the government decides to follow through, he said, it could take a while to draft legislation.

“Legislatures and Parliaments are meeting scarcely because of the current context of the pandemic, so it’s not a quick solution, but it’s certainly something that we would be open [to] as a government,” said LeBlanc.

NDP MP Charlie Angus said he would support legislation to fight online misinformation.

“Extraordinary times require extraordinary measures and it is about protecting the public,” he said.

“This is not a question of freedom of speech. This is a question of people who are actually actively working to spread disinformation, whether it’s through troll bot farms, whether [it’s] state operators or whether it’s really conspiracy theorist cranks who seem to get their kicks out of creating havoc.”

Leonard Sirota, a Canadian now teaching constitutional law in New Zealand, describes the damage this would do long after the coronavirus pandemic has passed:

It is far from clear just what these restrictions are meant to accomplish. The CBC report quotes a spokesperson from the Communications Security Establishment, an intelligence agency, as warning about “cybercriminals and fraudsters” who “encourage victims to visit fake web sites, open email attachments and click on text message links” that purport to provide health information. But fraud, for example, is already a crime; there is no need for “extraordinary measures” to prohibit it, or for broadly defined bans on “misinformation”. The report also says that “Health Canada … is sending compliance letters to companies it finds making false or questionable claims about COVID-19”. It is not quite clear what sort of compliance is in question here, but presumably ― or at least hopefully ― it’s compliance with existing laws, perhaps ones having to do with advertising, or specifically advertising of health products. If so, then why is more legislation necessary?

For his part, the NDP MP tells, darkly, of “troll bot farms, state operators or … conspiracy theorist cranks who seem to get their kicks out of creating havoc”. State actors with troll bot farms at their disposal are unlikely to be deterred by Canadian legislation. At most, then, it will be targeting conspiracy theorists… and giving them more ammunition for believing the government is hiding things. Is there any evidence at all, actually, that “conspiracy theorist cranks” ― especially ones within the reach of Canadian laws, and not the one domiciled at 1600 Pennsylvania Ave., Washington, DC ― are having a real effect on Canada’s response to the plague?

And on the other side of the scales, there will be real costs to this proposed legislation. Even if it includes the mens rea requirements of knowledge, wilfulness, and malice ― which, if applied, would result in good faith conspiracist cranks being off the hook ― the law is likely to produce chilling effects. Worse, attempts to enforce it, even if they do not ultimately lead to convictions, will target the politically unpopular, or simply those who happen for one reason or another, to incur the displeasure of police services and prosecutors. …

[…]

Once the plague is over, it will be all too tempting to declare something else the next great public emergency, and to repurpose, instead of abolishing, the censorship mechanisms that allow government to silence those who question or undermine its response ― even if stupidly.

If there is there one thing we’ve learned from events of barely a year ago, it’s that clerks of the Privy Council are not always imbued with a great respect for constitutional propriety, or immune to the temptation to shill for their political masters. I would not trust one of them with the job of a Minister of Truth. Nor would I trust the public health authorities, which themselves at times seem quite confused about what the truth is. Indeed, this confusion only serves to underlie the fact that a government that is entitled to impose the truth on its subjects ― who can no longer be counted as citizens ― is also a government that is empowered to lie to them. No one, after, is allowed, and at length able, to tell the difference. The Canadian government needs to reverse course before it becomes a government of this sort.

Whenever I come across a political partisan promoting such restrictions on freedom of expression, I ask them if they’re prepared to trust these tools in the hands of the other team. You guys won’t be in power forever. When it’s your side being told what they can and can’t say, don’t whine about how you weren’t warned.

UBC caves to the mob

Berkeley 1964 vs. Berkeley 2017.

I hadn’t even had time to break all of my New Year’s resolutions before the first big university free-speech controversy of 2020 popped up:

The Post Millennial editor-at-large Andy Ngo had his speaking event cancelled at UBC after safety concerns due to potential violent protests from antifa groups. Ngo’s scheduled presentation, ironically titled “Understanding Antifa Violence,” was scheduled to take place on January 29 at UBC’s Robson Square in downtown Vancouver.

Conservative legal advocacy group, the Justice Centre for Constitutional Freedoms (JCCF) has issued a press release and legal demand letter on behalf of student group The Free Speech Club demanding that UBC reinstate the event.

According to the letter, The Free Speech Club, received a phone call on December 20 from Ron Holton, Chief Risk Officer at UBC, stating “[t]he reason for the cancellation is the concern about the safety and security of our campus community.” The JCCF points out that no specific concern was mentioned.

The defining conflict of our time isn’t between left and right. It’s between those who believe speech is speech and violence is violence, and those who believe speech is violence and violence is speech.

Looks like the University of British Columbia has chosen its side.

British Police Priorities

Britain may not be able to stop massive child-sex rings, but By God, they’re going to throw the book at people doing stupid things on YouTube.

A man who filmed a pet dog giving Nazi salutes before putting the footage on YouTube has been convicted of committing a hate crime.

Mark Meechan, 30, recorded his girlfriend’s pug, Buddha, responding to statements such as “gas the Jews” and “Sieg Heil” by raising its paw.

But police were alerted and he was arrested for allegedly committing a hate crime.

The original clip had been viewed more than three million times on YouTube.

[…]

Mr Brown told the court it was wrong to focus on the phrase “gas the Jews” when it had been taken out of context of the whole video.

He claimed Jewish comedian David Baddiel had voiced his support for Meechan and had asked for him to walk free.

He added: “I can see that the video may not be to everyone’s taste.

“Others may be able to see the comedic or satirical element to it.

“The court should seek to acquit Mr Meechan for no other reason but to show it is 2018 and not 1984.”

Prosecutors had earlier asked for Meechan to be convicted and branded the video “an odious criminal act that was dressed up to look like a joke.”

Comedian Ricky Gervais took to Twitter to comment on the case after the verdict.

He tweeted: “A man has been convicted in a UK court of making a joke that was deemed ‘grossly offensive’.

“If you don’t believe in a person’s right to say things that you might find ‘grossly offensive’, then you don’t believe in Freedom of Speech.”

Serious question: would this have been viewed three million times if Meechan wasn’t prosecuted?  He’ll probably end up with a Jordan Petersonesque book deal out of this.

Meanwhile, London’s Metropolitan Police appears to have removed this from their page about Hate Crimes, at least for now:

Screenshot from 2018-03-20 22-26-41

Just because you can doesn’t mean you should

Lindsay Shepherd’s treatment by her university was absolutely appalling, and it is disgusting to see unhinged Mao-lings forcibly shutting down speakers who may challenge some of the deeply held beliefs they discovered this week.

Having said that…wow, this is a horrible, credibility-shattering idea:

Goldy was fired from Rebel Media for espousing her extremist views on an actual neo-Nazi podcast:

It is hard to resolve, for example, Levant’s rejection of racism with Goldy’s appearance on the Krypto Report, a podcast produced by the Daily Stormer, a neo-Nazi outlet that advocates genocide.

In it, she said she “salutes” the white supremacists for showing up to Charlottesville “in hordes,” then she clarified with a laugh: “Not a Roman salute, guys,” a reference to the stiff armed Nazi salute.

Just because lefties call everyone who disagrees with them a fascist doesn’t mean some people aren’t actually fascists. I would oppose official or angry-mob attempts to shut down the speech, but that certainly doesn’t make it a responsible idea. Supporting someone’s freedom of expression doesn’t mean you’re obligated to give that person a platform.

I’m reminded of the time PJ O’Rourke visited his alma mater and the student paper was debating whether to run an ad by a Holocaust denier. Some said publishing it would be an endorsement of racism, while others felt that not doing so would be censorship. O’Rourke wrote, “it never occurred to anyone to just throw it out because it’s a piece of shit.”

Professor Wrongthink

Acadia professor Rick Mehta is being investigated for publicly expressing doubleplusungood opinions about feminism and relations with First Nations:

Acadia University has launched a formal investigation into complaints against a professor over controversial comments he made on social media and in the classroom.

Heather Hemming, vice-president academic at the Wolfville, N.S., school, said in a letter to professor Rick Mehta that the university has received complaints from students, faculty and others with concerns about his views.

“These concerns relate to the manner in which you are expressing views that you are alleged to be advancing or supporting and, in some instances, time that you are spending on these issues in the classroom,” she said in a letter on Feb. 13. “The university has a legal responsibility to provide an environment free from discrimination, sexual harassment and personal harassment.”

[…]

But [UNB Professor Matthew] Sears called Mehta’s “free-speech absolutism” extreme, noting that free speech does not mean consequence-free speech. The university must weigh a professor’s right to free speech with a student’s right to be safe and supported in class, he noted.

You can have a “right to be safe and supported in class” or you can have a university.  Pick one.

You’d think the Masuma Khan fiasco would teach those on the left that the safe-space dragon will eventually eat them, too.  But I guess they’ll just have to learn the hard way.

Book review: “Freedom From Speech” by Greg Lukianoff

[originally posted at Canadian Lawyer]

It used to be that people waited until they were actually offended to take action against something that offended them, but Carleton University student Arun Smith has no time for such details. When a “free-speech wall” upon which anyone could write any opinion was erected at his school last year, Smith promptly tore it down. When the wall went back up, he did it again.
Smith was unapologetic about his actions, declaring on his Twitter feed that, “Not every opinion is valid, nor deserving of expression.” When CBC journalist Kady O’Malley argued that this isn’t his call to make, Smith responded, “just watch me.”

Greg Lukianoff’s Freedom From Speech, an entry in the “Broadside” series issued by the conservative publisher Encounter Books, shows how this attitude is depressingly common on American college campuses, with implications for the world outside of the university — including the legal system.  As the Smith case illustrates, this attitude is depressingly common in Canadian schools as well.

Lukianoff is a representative of the Foundation for Individual Rights in Education, which monitors and takes legal action against censorship and suppression of speech in American post-secondary institutions.

Unfortunately, his organization has been particularly busy in recent years, as restrictive “speech codes” proliferate and students mobilize against speakers whose views are apparently so repugnant that no one should be allowed to hear them.

Conservative personalities initially made up most “disinvitation season” targets, but as these things are wont to do, before long more liberal (but insufficiently liberal) speakers were hounded off campus, assuming they weren’t disinvited beforehand. Off campus, meanwhile, the likes of celebrity chef Paula Deen, MSNBC host Martin Bashir, and Mozilla Firefox designer Brendan Eich saw their careers torpedoed by the outrage patrol, sometimes for incidents or comments made years beforehand.

As Lukianoff acknowledges, where governmental agencies or institutions aren’t involved, these aren’t constitutional violations as defined by the First Amendment. People do, of course, have every right to express their distaste with someone’s remarks or actions, and refuse to patronize businesses which employ that person.

But the attitude implicit in these campaigns — that people have a “right” to be protected from material that may offend them — seems to be spreading and it has serious implications for the legal system and our system of government.

In some European jurisdictions, for example, a “right to be forgotten”  — mandating the removal of information about certain people from the Internet — is being awkwardly implemented. And much of the world is seeing a revival of laws against anti-religious “blasphemy,” with potentially disastrous consequences.

Lukianoff convincingly argues that the “right” to be free from offence is a pernicious concept that universities — institutions supposedly dedicated to the pursuit of truth, freewheeling debate, and challenging of old assumptions —- should be fighting against. Instead, they’re the incubators.

Interestingly, Lukianoff also points to a “problem of comfort” largely brought about, paradoxically, by the abundance of media outlets available on the Internet and cable television. If you’re a political conservative, you can get all your news from right-leaning outlets like Fox or the Daily Caller, rarely having their fundamental beliefs challenged. (For left-wingers, replace Fox or the Daily Caller with MSNBC and Salon.com.) And when you get most of your news from one perspective, you’ll have that much harder a time handling news from another, opposed point of view.

How much of this is applicable to Canada? Well, with a handful of exceptions like the little-watched Sun News channel, our homegrown media outlets aren’t as politically polarized as those in the U.S.; on the other hand, in Canada, freedom of expression is culturally and constitutionally less sacrosanct. Either way, Arun Smith isn’t alone.

Dieudonné and hate-speech laws

From a Guardian report about a French court decision upholding a ban on performances by anti-Semitic “comedian” Dieudonné M’Bala M’Bala:

Outside the Zénith hall, near the town of Nantes, where Dieudonné was to kick off his tour on Thursday, fans turned up – on the advice of the comedian – to sing La Marseillaise in support of “freedom of expression”. They also chanted “Valls resign” and “Dieudonné, Dieudonné”.

The show was reportedly a sell-out of all 6,000 tickets, costing up to €43 (£35).

[…]

Dieudonné has several convictions for inciting racial hatred through antisemitic jokes and comments, and claims to have invented the “quenelle”, a gesture that has been described as an inverted Nazi salute.

Might I suggest that this creep is selling out his shows in no small part because he has been repeatedly convicted of “inciting racial hatred”? And that this says a lot about how such laws not only fail to combat hatred, but actually make things worse?

It’s dirty work (and lawyers get to do it)

Canadian Lawyer‘s Gail Cohen praises the late Doug Christie for representing people many lawyers wouldn’t touch:

Christie, often called The Battling Barrister or Counsel for the Damned, became notorious for his defence of some of the most reviled hatemongers in the country. His clients included holocaust denier Ernst Zundel, former Nazi guard Michael Seifert, fascist John Ross Taylor, and white supremacist Paul Fromm. Christie studied law at the University of British Columbia and rose to prominence in the mid-1980s defending James Keegstra, a schoolteacher fined $5,000 for willfully promoting hatred against Jews by teaching his students the Holocaust never happened and that a Jewish conspiracy controlled world affairs.

Christie was strongly criticized by anti-racists, had rocks thrown at him, and his office windows were smashed so many times he had to board them up. Once, someone drove a truck through his office. He was a polarizing figure, there’s no doubt. Christie, along with Ottawa lawyer Richard Warman, were the subjects of Canadian Lawyer’s March 2009 cover story “War of the Words,” which looked at the battle between the free speech advocate and the push for laws outlawing hate. Warman would not consent to have his photograph taken with Christie, going as far as insisting we note in the article that the two men had been photographed separately.

Many of his critics insisted Christie held the same repugnant beliefs of those he defended in the courts but other than his desire to separate the Western provinces from the rest of Canada, his personal beliefs were never really out there on display. Until the end, Christie insisted he was defending those who others wouldn’t. In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”

[…]

Even the professional regulator saw that Christie was willing to do what most other lawyers weren’t. When the B.C. lawyer got into trouble with the Law Society of British Columbia over some questionable subpoenas, his contribution to society was recognized. Christie was found guilty of professional misconduct but in assessing costs, the hearing panel tried to keep them as low as possible so it didn’t affect Christie’s ability to practise. “The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees.”

Whether you agreed with Christie or not, he played a pivotal role in the free speech debate in Canada. There have to be lawyers who are willing and able to fight for those no one wants to fight for. It’s the essence of a free and tolerant society. Who, now, will rise up to take his place and defend those people, even if it means possibly being on the wrong end of a thrown rock?

Actually, there’s not much doubt that Christie did indeed support the causes promoted by his extreme-right client base.  But he did what a lawyer is supposed to do: stand up against the power of the state when that state threatens to infringe upon someone’s liberty.

In most cases, this is precisely what lawyers are doing when they take on clients who have engaged in particularly repugnant behavior.  Another example: the Ohio attorneys trying to keep convicted killer Steven Smith from being executed for an undeniably appalling crime.

Condemned killer Steven Smith’s argument for mercy isn’t an easy one. Smith acknowledges he intended to rape his girlfriend’s 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.”

Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith’s actions “the purposeful murder of a helpless baby girl.”

I’m opposed to the death penalty because of the possibility – make that certainty – that innocent people will be executed.  That doesn’t mean some people don’t deserve to be put to death, however, and it’s hard to imagine what other punishment would suffice for a scumbag like Steven Smith.

That said, his lawyers have a point.  Murder is a crime requiring specific intent – the killer must intend to kill, not just harm, his victim.  Impairment by alcohol is not a defence to most criminal charges, but if Smith was so intoxicated that he couldn’t have formed the intent to kill, then under Ohio law he shouldn’t be on death row.

The state shouldn’t have the power to kill.  But if it does, at the very least it’s the lawyer’s job to ensure that this power is only carried out in the limited circumstances allowed.  Steven Smith might be the most loathsome defendant imaginable, but next time it could be someone someone more sympathetic – or innocent.