The debate over free speech that has been precipitated by Ezra Levant’s appearance before the Alberta Human Rights Commission has inflamed the passions of Canadians about our inalienable rights to free speech, one of the fundamental cornerstones of our democracy. While there have been a few people defending the HRCs and their jackboot star chambers, the overwhelming reaction has ranged from utter contempt and rage to mild disapproval. Generally speaking, the further right on the political scale, the more likely one is to share the former sentiments.

Stepping back from the hornet’s nest, for a moment, however, I would like to offer some comments on the tension between freedom of speech and legitimate restrictions thereon. Let me first say that most of us really do not believe in pure free speech. There are indeed necessary and reasonable limits to free speech that many of us in a civil and free society implicitly accept. And why do we accept them? For what purpose? Well, one reason is to uphold basic justice. Another reason is for something called the common good; that is, something that is necessary for the equitable functioning of society which benefits all its members.

The common good is a notion that originated over two thousand years ago in the writings of Plato, Aristotle, and Cicero. More recently, the contemporary ethicist, John Rawls, defined the common good as “certain general conditions that are…equally to everyone’s advantage“. The Catholic religious tradition, which has a long history of struggling to define and promote the common good, defines it as “the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” The common good, then, consists primarily of having the social systems, institutions, and environments on which we all depend work in a manner that benefits all people. (Source)

In concrete terms, we will find a near unanimous belief with protecting some aspects of the common good at the expense of pure free speech. So, in a sense, it is inaccurate to say that we are “for free speech”. Precisely speaking, we are for free speech provided that it does not encroach on X, Y, or Z. What are some examples of X, Y, and Z? Let’s take a look at it on various levels.

“Civic” Level: This is the level where most free speech proponents find themselves. For this group, if speech does not encroach on the bare minimum for the civil ordering of society, then it should be permitted. Examples on this level include:

1) copyright infringement 2) impersonation 3) fraud 4) tort defamation 5) confidentiality provisions 6) conspiracy to commit a crime 7) incitement to riot 8] breaching the official secrets act

Suffice it to say, most people do not consider these conditions to restrict free speech per se, although technically they are restrictions on free speech. It is important for us to realize that we accept these restrictions implicitly without sometimes thinking about why they are required in a general sense. As I mentioned earlier, we believe these restrictions are necessary because they serve the common good. You cannot have someone, for instance, going around ripping off literary work or conspiring to commit murder or exchanging secrets with our country’s enemies. All of these things have a direct impact on the health of our society whether it be to our economy, to the security of the person, or to our national security. Almost everyone in our society, therefore, (except perhaps looney anarchists) accepts that there are some very basic restrictions that need to be placed on the citizens of a functioning democracy. Without these restrictions and boundaries, our society would quickly unravel into chaos. Yet, as a society we generally do not consider these items to be restrictions on free speech because the importance of the common good on this level is so necessary for our society that any alternative opinion is simply not tolerated. The important thing to realize, however, is that strictly speaking, the common good does indeed have a part to play in this debate. The question then becomes just how far will citizens of a democracy allow the common good to encroach on so-called “free speech” rights.

“Moral” Level: The next level up from the civic level is the moral realm. This is the place where some people on opposite sides of the political spectrum oddly find common cause. For instance, the most prominent and contentious example on this level – at least from a socially conservative point of view – is the use of pornographic “art” under the guise of “free speech”. Porn apologists claim that since they have the right to free speech, pornography should be permitted. And yet, the studies have suggested, if not conclusively shown, the incredibly destructive power that pornography has had on our western culture: addiction, divorce, the objectivization of women and children, increase in sexual violence, destroyer of family, marriages, and children, among many other adverse and tragic social consequences. Pornography therefore is a perfect example where the confrontation between free speech and the common good comes into sharp focus. Unlike a purely political issue where there is room for disagreement on what constitutes “justice” or “truth”, it is much more difficult to frame the question of pornography as being anything other than a right to be sexually stimulated at the expense of women and children. And while this is an issue usually championed by the right side of the political spectrum, the Canadian Supreme Court, a leftist judicial body if there ever was one, agrees:

Take pornography, for instance. Much of it is made in the United States. Some of it crosses the border and is sold in Canada. But there are limits to what Canadians will tolerate as protected speech in this area. In 1992, the Supreme Court of Canada in the Butler case upheld a section of the Canadian Criminal Code which banned the publication and distribution of obscene material. The law had been challenged on the ground that it infringed freedom of expression in a way that was not justifiable under s. 1 of the Canadian Charter. The Supreme Court disagreed. It unanimously held that freedom of expression was infringed by this section of the Criminal Code, but added that the state had a right to outlaw pornography which qualifies as an undue exploitation of sex, such as where the portrayal of sex is coupled with violence, involves children, or is degrading or dehumanizing. One of the key concerns was the risk that such pornography may be harmful to women and children and to society generally. In accepting generalized risk as a reasonable basis for limiting free expression, Justice Sopinka of my Court quoted approvingly this conclusion from a House of Commons Committee:

The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles (R. v. Butler, 1992] 1 S.C.R. 452, at p. 494, citing the MacGuigan Report of 1978). (Remarks of the Right Honourable Beverley McLachlin, P.C. Protecting Constitutional Rights: A Comparative View of the United States and Canada April 5, 2004 | Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada 2nd Canadian Distinguished Annual Address Center for the Study of Canada Plattsburg State University Plattsburg, New York April 5, 2004)

And even if an objector would dispute whether pornography really is harmful to our western culture, the general principle of an objective harm is still a valid one; namely, where there is a clear link between a particular kind of expression and an assault on the common good of a culture, what role does the State have to play in this situation? Are we to say that the role of the State is to stand idly by and watch its institutions and the culture, which it is supposed to protect, fall into ruin because the State, like some kind of political eunuch, is unable to act when it should? Would we not expect the State to act against an internal cancer and root it out just like it does on the “civic” level? And if violent pornography has been so sanitized and accepted by our culture that it passes as legitimate free speech regardless of its adverse consequences, there are other examples which could be substituted to make the same point. Consider another example like a popular suicide cult spreading its poisonous messages to teenagers. Would the State not have a role in suppressing such speech even though it would be a consensual act on the part of the participant much like pornography is? Another example would be the issue of euthanasia. Many people would consider this a form of freedom of expression, no less than porn is. Both acts claim the automonous right to do with their bodies as they see fit, yet both expressions are objective attacks on human dignity and our disabled community. On the Left side of the spectrum, proponents point to so-called “hate speech” laws in order to protect certain minorities from harm that could result from such speech as occurred in Germany before Hitler took power.

“Political” Level: The final category is what I call the “political” level where opinion is directed at a particular ideology or historical or contemporary figure. It can take the form of speech or visual art. Take, for instance, Benedict’s speech at Regensburg, Germany last year which caused an uproar in the Muslim world (egged on by our liberal secularists in the MSM). Incidentally, the speech was mostly a slam against liberal theology and not Islam per se. Still, in the speech, the Pope made the following comment about Islam and Muhammed:

In the seventh conversation (διάλεξις – controversy) edited by Professor Khoury, the emperor touches on the theme of the holy war. The emperor must have known that surah 2, 256 reads: “There is no compulsion in religion”. According to some of the experts, this is probably one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur’an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the “Book” and the “infidels”, he addresses his interlocutor with a startling brusqueness, a brusqueness that we find unacceptable, on the central question about the relationship between religion and violence in general, saying: “Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached.”[3] The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. “God”, he says, “is not pleased by blood – and not acting reasonably (σὺν λόγω) is contrary to God’s nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats… To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death…”.

The historical fact about Islam is that it was spread through and by the sword and if you were to encapsulate what the fourteen century Byzantine Emperor Manuel II Paleologus said above, just how would you do it in a visual form? No doubt whatever was chosen would be offensive to Islamicists since it would be representing Mohammed in a very unflattering light. Fast forward to the twenty-first century and the violence of Islam against the West. How could an editorial cartoon express such violence, if not by the Danish cartoons which caused the outrage? Is that not a legitimate visual representation of the violence that Islam has propagated? The point is that the cartoon — far from simply being printed to cause offense for offensiveness sake — points to a truth about the history of Islam and its more aggressive elements today. (One only has to survey Christians living in Muslims lands to understand what political Islam is all about, and it’s not a pretty picture.) Whether it was offensive or not does not detract from the question of whether someone should have the right to portray the violence of Islam in a cartoon.

The Truth Will Set You Free

The underlying strength of freedom of speech is that we believe that the TRUTH will eventually win out in determining what the reality points to. There is an implicit assumption in the western ethos that, although there will be conflict and division over many issues, in the end, when it’s all said and done, the truth will prevail. Yet the prevalence of that truth relies on the ability to speak freely and without encumbrance — otherwise our society will begin to erode and disintegrate, relying on a protected propositions which may be objectively false and erroneous. This great gift of free speech, however costly it might be to personal sensitivities, is too important for the future of a democracy and a civilization to be gutted because of hurt feelings or marginalization. Moreover, when is truth subject to an “offensiveness” test? If a political or social portrayal oversteps the boundary of offensiveness set by government functionaries, does it stop being any less truthful? We live in an offensive world where the truth really did hurt and continues to hurt. No foolish law on “offensiveness” or a farcical kangaroo kourt which administers it is going to change that. If anything, such star chamber tribunals only exacerbate and inflame the conflict by attempting to subject the truth to an “offensiveness barometer”.

Christians have long understood this principle and realized that a free society has certain costs attached to it. The cost is offense, slander, marginalization, vilification, etc. etc. These are not pleasant things. In fact, they could very well lead to more unpleasant things. But the alternative in this zero-sum game is far worse since it would seek to muzzle something that could be necessary for the very survival of a nation.

This cartoon is one of Thomas Nast’s most famous. It depicts Roman Catholic clergy as crocodiles invading America’s shore to devour the nation’s schoolchildren–white, black, American Indian, and Chinese. (The white children are prominent in front, the rest are in the background.) The public school building stands as a fortress against the threat of theocracy, but it has been bombarded and flies Old Glory upside down to signal distress.Education in nineteenth-century America was provided by a variety of private, charitable, public, and combined public-private institutions, with the public school movement gaining strength over the decades. A major political issue during the 1870s was whether state and municipal governments should allocate funds for religiously affiliated schools, many of which were Roman Catholic. In most public schools, the Protestant version of the Bible was read, Protestant prayers were uttered, and Protestant teachers taught Protestant moral lessons. (Notice the boy in the cartoon who protects the younger students from the Catholic onslaught carries a Bible in his coat.) Catholic (and some Protestant) leaders asked that parochial schools receive their fair share of public funds. Protestant defenders of public schools erroneously considered that request to be an attempt by Catholics to destroy the spreading public school system. (Source)

We encounter problems in civilization when there is a separation of the objective moral order. Our modern society is replete with examples of two goods which need to act in concert with one another actually being placed in opposition to one another. The citizens of a democratic nation must have full and complete freedom to search and discuss issues that are confronting society, but with that freedom comes the moral obligation to seek and speak about the truth. The more freedom of expression departs from seeking the truth to engage in something which attacks the truth, the more it opens itself up to State “correction” by the imposition of an opposite error, and eventually, possible tyranny. Freedom itself cannot be independent of its ultimate objective which is the truth.

In his remarks to the Alberta Human Rights Commission, Ezra Levant made the very prescient observation that only through free speech has western civilization been able to advance. This is true. Free speech provided the means for the advancement but it was not the cause or source of it. The truth was the source of the advancement. Although modern society is loathe to admit it, there is indeed such a thing as an abuse of freedom, and an abuse of freedom can have and does have ominous consequences for our society, as our deteriorating social conditions in the West clearly demonstrate. Therefore, it is not free speech per se that leads to a free, peaceful, and prosperous culture but rather the Judeo Christian traditions under-girding it. It is no coincidence that the West has been able to prosper because it found the proper balance between the truth and the responsible exercise of free inquiry and criticism. And it is equally not surprising that as we remove the Judeo-Christian foundation, leaving free speech without a sure foundation, free speech itself, instead of injecting blood in to the body, will start to inject poison and then eventually destroy our society. Just because we have been given the keys to the car doesn’t mean we can’t crash and burn. Free speech is no guarantee of advancement or prosperity. It must be the servant of the truth in order for it to really benefit and serve the individual and society. If it seeks to distance itself from the truth simply to be maximally offensive, then it really is advocating a pseudo anarchy.

If we begin to treat freedom of speech as an end in itself, without reference to a genuine search for the truth, we will suffer the consequences. While living under the yoke tyranny is the worst possible scenario, anarchy and societal collapse brought about by licentious speech and expression is a close second, and it will eventually lead, by necessity, to an imposition of a dictatorship to restore order. We cannot blindly believe that “maximally offensive speech” by two competing groups in our society will not have lethal consequences down the road. To believe this is to engage in wishful and foolish thinking. The reality is that the more unreasonable, offensive and damaging our speech, the more the common good is eroded when it does not have truth as its object. The more offensive and false something is, the more it attacks civilization and bring us that much closer to anarchy which, in turn, brings us that much closer to the tyranny we are seeking to avoid. At the end of the day, as we realize that “free speech” has both salvatory and ominous consequences, that it can lead to the betterment of society or its demolition, it is all the more urgent that all citizens take an active role in seeking to identify and then defend the common good to ensure those who misuse their freedom do not win the day. That is the only way to ensure that both the common good and freedom are preserved. We cannot have one without the other. The real security for a civilization cannot rely on either license or star chamber thuggery. This is a legal fiction because we cannot merely rely on a system or a legal way of saving an internally corrupt culture. Legalism, in the service or in the constraint of free speech, will not save us.

Why, for instance, does society see the issue of defamation as a matter of justice rather than as a matter of free speech? Because we still have a sense (even today) of the sin of falsely ruining someone’s reputation. Strictly speaking, it is indeed a matter of free speech, but we have removed it from the “free speech” debate because we all recognize the common good inherent in protecting the good reputation of all citizens. But imagine if our culture were to regain the sense of an objective truth and start to include other issues in this same “protected civic class”? Consider pornography. What if, as a society, we were to recognize the objective attack of pornography on the dignity of women – where we would consider porn no less an attack on human dignity as we do defamation? Would we still be having the debate over whether porn was a matter of free speech? Of course not. An earnest examination and search for the truth allows our society to not only uphold the common good, but also preserve free speech for those issues which are legitimately open to disagreement.

The Current State

The great problem in our culture today is that we have lost the consensus of what the common good is. Our society is so fractured among various special interest groups and world views that any attempt to protect the “common good” as conceived by a small number of political power brokers is invariably seen by the other side as an encroachment on their freedoms. The further we move away from an objective moral and social standard, the more arbitrary the manufactured standard becomes, the imposition of which is perceived as a totalitarian effort. The truth binds a society together in such a way to protect both the common good and authentic freedom. Conversely, the further we move away from this truth, the further away we move from the common good and freedom. This is very dangerous to our society since it means people are pushed to the boundaries of this debate. Those who are currently marginalized and have politically incorrect opinion want to recapture their rightful freedoms that have been immorally stripped from them. To do this, they are more prone to have only the very minimum restriction on freedom of expression, even if it led to an immediate and present danger against the common good. Conversely, those who want to protect their idea of the common good (however false it is) would prefer to impose it on the public and restrict freedom of expression.

Ultimately, however, when the common good and free speech are placed in opposition to one another, as is the case today, and where there is no agreement on what the common good is, it is paramount that freedom of speech be preserved despite the risks involved. The reason for this, of course, is because only through freedom of speech can our civilization be exposed to what the common good is or is not. The common good is reached through dialogue and debate, through the free exchange of ideas, and the refinement thereof. It does not come from the Star Chambers or any of its members.

FD discussion thread on the above essay

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