Free speech

"IN the end, the system worked." That is the re­frain still echoing across the corridors of pro­gressive academia after hate complaints against Ezra Le­vant’s now-defunct Western Standard and Maclean’s, Canada’s flagship magazine, were finally tossed out.

Levant's speech transgression was to republish some of the infamous Muhammad cartoons that had ignited Muslim rioting world wide. Maclean's close encounter with Canada's hate speech sentinels followed its excerpted publication of New York Times bestselling author Mark Steyn's thoughts on the dangers of radical Islam.

So, did the system work? That depends on how you measure success, or failure. Should we rejoice that two wrongs were finally righted? Or bemoan that they were pursued, in the first place, instead?

Long ago, in Dombrowski vs. Pfister, U.S. Supreme Court Justice William Brennan popularized the phrase "chilling effects" to describe the situation where people with controversial but legitimate things to say, self-censor themselves rather than risk running afoul of laws prohibiting certain speech. Brennan's insight, it turns out, holds the key to our answer.

Levant's and Steyn's ordeals have, for now, ended. But Canadian democracy's are only beginning. Theirs was a pyrrhic victory for public discourse.

Levant's legal vindication found him potentially answering to several human rights bodies for his alleged transgression, his good name officially sullied as a purveyor of hate, his mind legally threatened with official re-education for insensitivity and his publication finally bankrupted for crushing defence costs.

As Justice Brennan would say, the club of silencing had done its "chilling" job, without the need for a finding of guilt.

Maclean's, more mainstream and better-resourced than the niche Western Standard, survived its accusers. But to see any of this as a victory misses the point. If such wrongful accusations can be legally levelled to harass, hound and hurt even established media and renowned authors, can anyone really feel safe from rapacious censors, who may think to challenge popular wisdom or powerful censorship interests defending it?

What message is sent to malicious, or simply misguided, thought-accusers who think to silence them?

Thought persecution, not legal vindication, is the point. Legal vindication is evidence not of the absence of public harm from wrongful hate-speech complaints, but proof of its existence.

Steyn and Levant signify only the visible tip of a much larger chilling iceberg of public self-censorship lurking unspoken and unheard beneath, for ordinary Canadians' fear of reliving what happened to them. The harm of hate speech is visible, audible and measurable. The harm of public self-censorship is not. But it is no less injurious to a working democracy, for it. On the contrary, it is more insidious precisely because it is invisible, inaudible, and immeasurable. The injuries to democracy a self-governing people know, it can act to correct. The injuries it knows not, it cannot even prepare for.

If to be wrongfully accused is bad, then to be rightly vindicated is better. But it is still bad. Less worse cannot be democracy's standard for freedom to speak. Vindicating public thoughts wrongfully accused is not the same for democracy as is vindicating public acts wrongfully prosecuted.

If even a prominent person can be wrongly accused of manslaughter you may be wary of careless, not just reckless, misuse of that butcher knife. If a successful business is erroneously charged with embezzlement of funds you may pay more attention to how you manage those monies entrusted to your care. If a renowned figure is mistakenly alleged to have committed assault, you may think twice about making those casual threats.

But even undue care in the use of knives, diligence in regard for other people's property and respect for the force of ideas rather than the idea of force, hardly does democratic self-government any harm.

In contrast, wrongful legal accusations of hate speech will make you think twice, or thrice, before saying anything controversial. And that does do democratic self-government harm. Self-government, ultimately, depends on an informed not un-offended citizenry, unafraid to freely and fully speak as they think and to think as they speak on all the great and controversial issues of the day.

Dictatorships live, and often die, at the hands of publics who speak not enough for they fear too much. Democracy cannot, and must not.

It is said all great historical tragedies began with words. So, too, did great historical progress -- none greater than the idea of freedom to speak itself. It is said words can wound, visibly. So, too, can enforced silence, invisibly. It is said that the Holocaust began with words. It also began with book-burning. Words can be answered, with words. Book-burning can only be answered with more book-burning.

Where the idea is of force, there is no place for the force of ideas. The defining test of an effective dictatorship is how many rightful speakers it has wrongfully fined, jailed, or forcibly "re-educated," enforcing the politically correct line. The defining measure of a faltering democracy is how many rightful speakers it has wrongfully chilled and unknowingly self-censored, for mistaking that there is a politically correct line. Struggling democracies vindicate public speakers wrongfully accused. Strong ones don't legally accuse them in the first place.

So, did the system work, by vindicating Levant and Steyn? Only if our measure of success is the absence of dictatorship, not the pre-eminence of democracy.

Stefan Braun LLM, PhD is the author of numerous scholarly articles on hate censorship and a nationally acclaimed book on the subject: Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada, Toronto, (University of Toronto Press) 2004. The 2006 Harold Adams Innis Prize Finalist for the best peer-reviewed English language book in the Social Sciences in Canada.

Republished from the Winnipeg Free Press print edition May 8, 2010 H11