Unfettered speech is not dangerous, unfettered power is

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Joseph C. Ben-AmiOne would think that if anyone could mount a strong defence of Canada’s much maligned human rights commissions and their role in regulating free speech in this country, it would be Maxwell Yalden. A former ambassador to Belgium and Luxembourg, Yalden was Chief Commissioner of the federal Human Rights Commission from 1987 to 1996 and Commissioner for Official Languages from 1977 to 1984. He also served on the UN Commission on Human Rights.

Yalden finally waded into the debate by drawing a connection between historical events and what he calls “unfettered” free speech in a column published by the National Post. “After two disastrous world wars and the horrors of the holocaust,” he writes, “we are surely obliged to judge rather differently the anything-goes theory of free speech”.  In other words, if only there had been laws limiting free speech, creatures like the Nazis might never have come to power and there might never have been a Holocaust.

This is a popular and seductive theme that proponents of hate speech laws return to again and again to justify their positions.

It’s also wrong.

Yalden wants readers to believe the Nazis were able to come to power and perpetrate the Holocaust in part because of “unfettered” free speech when in fact, the opposite is true. Suppression of civil liberties in Germany, especially free speech, was essential to the Nazi’s successful acquisition and consolidation of power.

It’s a myth that Weimar Germany was a bastion of freedom and civil rights before being taken over by the Nazis. The Weimar Republic was no respecter of civil liberties and the rule of law – at least not consistently. Weimar “liberals” shut down newspapers when it suited them, they spied on political parties, they used plainclothes police or other surrogates to break up political meetings, they outlawed political parties – including the Nazis for a time, they not only tolerated armed militias but in many instances encouraged their existence and activity while the judiciary turned a blind eye.

There is a lesson to be learned here, but it’s not the lesson that Yalden and his ideological compatriots are teaching. National Socialist Germany is not an example of what happens when hate is tolerated – it’s an example of what happens when hate is empowered. The uncomfortable fact, moreover, is that the Nazis didn’t invent the apparatus of power or culture of repression in Germany, they merely took control of, and perfected, an apparatus and culture that had already been created and used by “liberals” to combat extremism.

In contrast to this, those countries that formed the nucleus of the alliance that fought and eventually vanquished the Nazis were distinguished by their respect for civil liberties such as freedom of speech. (The sole exception was the Soviet Union – tellingly, an ally of Nazi Germany up until the moment it was attacked and forced to fight for its life.) It may be true that some civil liberties were constrained by the democracies during the war years, but there is no comparison between the modest limits imposed by democratically elected governments and the brutal suppression practiced by the dictatorships. There is also no evidence that such measures contributed to victory. On the contrary, they were much more effective in silencing opposition to some of the sorrier acts of our governments, like the internment of Canadians and Americans of Japanese descent.

Yalden continues his defence by recycling the tired example of the individual who shouts fire in a crowded theatre to demonstrate the folly of “anything goes” free speech.

Here he is guilty of employing a rhetorical slight-of-hand to make his case. He bases his argument on the premise that defenders of free speech oppose any limitation. This is simply untrue. No credible defender of free speech would take the position that the right should be “unfettered”. As with all rights, freedom of speech can be abused, and when it is, the abusers should be held accountable. The dispute is not about whether there should be limits – it’s about what those limits are and how they should be enforced. Yalden contends that we need special human rights commissions to perform this function while his opponents, of which I am one, point out that the law already established what those limits are, and what penalties should be imposed on an individual for exceeding those limits, long before the creation of special commissions.

Let’s return to the example of shouting fire in a crowded theatre. Yalden appears to be arguing that human rights legislation and commissions are an essential deterrent to the act. But setting off a false fire alarm is already a crime punishable by fine and/or imprisonment. What more can a human rights commission do to discourage such egregious behaviour? The answer is nothing.

And where criminal courts end, civil courts take over. Anyone who suffers a loss as a result of someone’s negligent or irresponsible behaviour has the right to sue to recover their losses, and in many cases civil courts do not just award compensatory damages, they award punitive damages too. The same thing goes for slander or defamation – the civil courts are empowered adjudicate such cases based on laws that are, in many cases, centuries old.

The problem with all of these laws – if you call it a problem – is that to be enforced, a formal complaint must be lodged, a full investigation must be conducted to ascertain all of the facts, charges must be laid if the facts support the complaint, and then a trial must be held in an impartial setting, with an impartial judge, where the accused must be entitled to confront both his accuser and/or the evidence against him.

In other words, the wheels of justice grind slowly, they grind cautiously, and they grind very publicly. Is this inconvenient? You bet, but it’s what due process and the rule of law is all about.

Which is precisely what Canada’s progressive human rights champions and ‘practitioners’ can’t stand. For them, our existing laws and practices – laws and practices that I might add were sufficient to protect us from turning fascist when fascism was popular among progressives – are inadequate to their plans. Like all true believers, for them, only the cause matters, and if existing legal institutions and traditions impede the speedy success of that cause, those institutions and traditions have to be replaced by new ones, better suited to the efficient imposition of the ideology of the day.

This is the true innovation of human rights commissions and legislation in Canada. They do not enhance the rule of law – they circumvent it. Their supporters can adorn them with noble platitudes about tolerance and respect for diversity, but that doesn’t change the fundamental nature of their purpose, nor does it mitigate their inherent danger.

The only sure defence against tyranny is the maintenance of a free market in ideas, because it in such a free market that bad ideas can be weighed against good and exposed for what they are. Vile ideologies such as those espoused by the Nazis can never succeed in acquiring political power in a society that values above all the free exchange of ideas and opinions. They can only prevail in a society where the range of ideas and opinions that can be expressed in the public square is limited only to those approved by the state.

Unfettered speech is not dangerous, unfettered power is. Where there is unfettered speech, there can be no unfettered power.

In this context, Canada’s human rights commissions and their apologists are the best friends hate-mongers have in this country.

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