Free Speech Vs. 'Hate Speech'

I recently attended a symposium, held at the University of Toronto and sponsored by a group of politically savvy libertarian and conservative students, on the topic of free speech and expression in the current repressive cultural and political milieu. The audience of almost every other conservative symposium I have attended has been composed chiefly of elderly white men, with a modest sprinkling of women and a sparse handful of younger people. On this occasion I was gladdened to note that the age gap had been bridged, dividing equally between older and younger, while the distaff representation was comparatively prominent.

The fact that the symposium was organized by two student groups worried about their political and economic future, Students for Liberty and Generation Screwed, explained the mixed composition of the conference attendees and signaled a more hopeful future for the nascent conservative movement growing on campus as well as in the non-academic world. This young, right-leaning cohort -- politically active, intellectually engaged, well-educated and civil -- are in marked contrast to their leftist counterparts consisting of a mélange of snowflakes and hooligans, who were soon to make their presence known at the event.

The issues discussed at the symposium largely involved the nature and definition of speech violence, or what is called “hate speech,” criminalized in several countries and jurisdictions. Both sides of the dispute, left and right, agree that limits to freedom of speech are necessary, but disagree as to where these limits should be placed. The left, whether radical or moderate, regards as felonies forms of speech that offend a privileged identity group, whether racial, ethnic, religious (i.e., Muslims), or gender-based (i.e., women, gays, trans-people), or criticizes the ideological positions such favored groups adopt. Additionally, a prime tactic of the left is what we may call pre-emptive suppression. Speaking engagements are often shut down before or during an address, making debate and discussion impossible. Censorship and repression thus become acceptable methods of dealing with such perceived “transgressions” as open colloquies, lectures and conferences.

The conservative right believes that speech should be mainly unfettered, except when it damages reputations through lies or urges acts of physical violence. Of course, speech itself can be an act, as philosopher J.L. Austin has shown in How to Do Things with Words: in his most famous example, when the minister states “I now pronounce you husband and wife,” an act has been performed since it changes the status of the participants.

We should note, however, that words critical of an individual or a group are not performative (or “illocutionary,” in Austin’s phrase). If I criticize Islam as a violent faith, I do not thereby make it violent or directly instigate violence against it. My words do not change the reality of Islam, whatever it may be. In the U.S., even words advocating violence (except in official or legally constituted circumstances, or in situations where there is a clear and present danger) are not considered performative. The 1969 Brandenburg vs. Ohio Supreme Court case ruled that “speech can be prohibited if it is "directed at inciting or producing imminent lawless action." (Italics mine). In the words of the Legal Encyclopedia discussing the case, “the First Amendment protects speech unless it encourages immediate violence or other unlawful action.” (Italics mine). In this instance, both the temporal element and unequivocal incitement are crucial. Mere advocacy is another question entirely and is not prohibited, although here the conservative argument tends to draw the line, even if the U.S. Supreme Court did not.

In Canada, we are not so fortunate. We have no First Amendment. The Canadian Charter of Rights and Freedoms establishes free speech as a principle of civic life, but with so many exceptions that the term “free speech” has become an empty watchword, an instance of virtue-signalling. The logic on which its application is based is ludicrously circular. For example, the Supreme Court decision in the Whatcott case, in which Bill Whatcott was convicted of hate speech for protesting what he saw as a homosexual agenda in primary school, reads: “The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression.” As my wife Janice Fiamengo puts it in Episode 52 of her video series The Fiamengo File, “free speech matters only when it is speech that promotes ‘the values underlying it.’” In other words, free speech is only free speech when it is free speech. Consequently, “if expression is made conditional on its promoting a particular set of values, then it is clearly not in any sense free or valued in itself.” Tightening the already-restrictive noose on free speech even further, the Canadian Parliament is now preparing to debate Motion 103, which authorizes the government to take steps to eliminate “Islamophobia,” and will surely tackle the element of critical speech as well.

Ironically, the notion of “hate speech” as interpreted by the left and progressivist leaning institutions (such as the Canadian Parliament and Supreme Court), apart from the fact that it is defined so broadly as to render most utterance suspect no matter how implausible or absurd, becomes itself an agent promoting hatred -- or, to adapt Austin’s resonant term, a “speech act” generating criminal behavior, such as pulling fire alarms, blocking public exits and entrances and creating public mayhem. It has also incited censorship, fines and the threat of imprisonment, thus materially changing the status of its targets. It is a totalitarian strategy to silence and suppress those with whom it differs and to replace reasoned, evidence-based debate with slogans, threats and punitive action.

The conservative position, on the contrary, insists on the principle of freedom of expression and assembly as the essential underpinning of a free society, while at the same time eschewing mere license and refusing to condone speech that actively promotes literal defamation, physical violence or palpable injury. In other words, speech that offends or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits should not fall under the cowcatcher rubric of actionable “hate speech.” For the impulse to legislate does not stop there. The dogmatic tendency to proscribe speech leads by insensible degrees to Orwell’s 1984 and Hayek’s serfdom.

What is called “hate speech” should be countered by speech that defends what is being attacked or speech that returns the insult, so long as the explicit incitement to violence or destruction is not countenanced. A society is no longer free when natural speech inclinations, no matter how controversial or untoward, are legally annulled. The real hate-mongers tend to be the same people who so liberally cast “hate speech” aspersions and accusations at those whom they oppose, that is, they hate a free and open society.

There is obviously a grey area between free speech and hate speech -- human life cannot be reduced to a scientific formula enabling precise distinctions -- but there should be no doubt that critical speech, analytical speech, satirical speech, spontaneous speech and offensive speech should not be legislated. Free speech is not a speech act. The term “hate speech” in its current acceptation, however, is merely a pretext for the eventual passage of blasphemy laws, envisaging the death of a free and democratic society.

To return to the U of T symposium. The event was scheduled to conclude with a talk by controversial author and founder of The Rebel Media Ezra Levant, the highlight of the convention. Books like Ethical Oil, Shakedown and Trumping Trudeau, and the fact that Levant is frequently embroiled in legal battles with aggrieved Muslims (and ethically compromised judges), have made him a major draw on the conference circuit. Right on cue, as Levant stepped to the podium, a throng of protestors, plainly neither conferees nor students, swarmed past a detail of useless security guards and proceeded to wreak havoc. The fire alarm was pulled and the entire building (the Sandford Fleming Engineering Building) had to be evacuated. Classes were disrupted as well as the lectures in the auditorium seating hundreds of paying attendees -- and that was the end of the affair. This, as noted, is a standard tactic of the dysfunctional and anarchy-loving student left. The harlequin gasconade must go on.

One recalls James Baldwin’s searing chronicle, The Fire Next Time, a blistering indictment of racism. Baldwin famously asked: “Do I really want to be integrated into a burning house?” The house that is now burning is not strictly the racial house; it is the very house of the American republic and the Canadian confederation. It is the fire this time. The typical rant of the left, the throwing around of incendiary epithets -- racist, fascist, Islamophobe, transphobe, misogynist, homophobe, white supremacist—and calls to rape, kill, and assassinate function more like speech acts that physically alter the nature of civic and political reality. I am not saying that such inflammatory speech should be outlawed; rather, that it evinces the left’s blind spot since, according to leftist doctrine, this characteristic vernacular is patently a form of hate speech and has led directly to acts of public disorder and outright violence aimed at suppressing legitimate political events and expunging conservative advocacy.

This is what happened when the fire alarm was pulled at the University of Toronto (and in many other locales). This is emphatically what happened at U.C. Berkeley when brigades of alt-left Antifa thugs shut down a speaking engagement by Milo Yiannopoulos, leaving smashed windows, injured bystanders and burning fires in their wake. As the virulent rhetoric of middle school teacher, so-called anti-racist activist, Berkeley rioter and member of the group By Any Means Necessary Yvette Felarca amply demonstrates, such is only the next level up on the spectrum of political vandalism embraced by the left -- acts of hatred as the tangible embodiment of hate speech itself.

Indeed, it’s an ironic reversal of events: first the fire alarm, then the fire.