Terry Glavin and Kaveh Shahrooz
Prime Minister Justin Trudeau may be the leader of the Liberals, but on Friday, while purportedly condemning the most recent Islamist terror attack in France, he demonstrated that he does not understand liberalism.
Asked about the gruesome decapitations in Nice and Paris committed by Islamists who were angry about the republication of the Charlie Hebdo cartoons of the Prophet Muhammad, Trudeau stated that, “Freedom of expression is not without limits. We owe it to ourselves to act with respect for others and to seek not to arbitrarily or unnecessarily injure those with whom we are sharing a society and a planet.”
Trudeau’s view appears innocuous at first glance. After all, who but the most unreasonable absolutist could disagree that all rights, including the right to free speech, are subject to limits?
But dig a little deeper and you will find Trudeau’s statement troubling for two reasons: first, because it essentially blames the victims for fundamentalist violence; and second, because it profoundly misunderstands the principle underlying free speech.
Reading between the lines, Trudeau seems to suggest that he disapproves of the terrorists’ violent methods, but not of their demand that others refrain from criticizing or ridiculing their religion. This is effectively a call for enacting blasphemy laws.
That is bad enough. Worse still is the natural corollary, which would place the onus for avoiding hurt and injury not with the terrorists brandishing guns and knives, but with the Charlie Hebdo cartoonists who mocked Islamic pieties and those who amplified the cartoons. It is hard to think of a more vivid example of victim-blaming.
Trudeau should be reminded that his view on the issue puts him in unsavoury company. In the early 2000s, for example, some of the most repressive states in the world pushed the United Nations to adopt the concept of “defamation of religions.” The core demand of the governments from the Organization of the Islamic Conference was not materially different than what Trudeau argued: that negative portrayals of religion should be considered outside the limits of acceptable speech.
The second problem with Trudeau’s ill- considered comment was that he seems to have entirely misunderstood the liberal democratic tradition of free speech. He revealed this when he resorted to a cliché favoured by censors everywhere: to punctuate his point about the limits to speech, Trudeau stated that, “We do not have the right, for example, to shout fire in a movie theatre crowded with people.”
That line about shouting fire in a theatre, which the late Christopher Hitchens once called “the fatuous verdict of the greatly overpraised (U. S. Supreme Court) Justice Oliver Wendell Holmes,” is much cited, but often grossly misunderstood (as it was by the prime minister).
Justice Holmes wrote those words in his 1919 Schenck decision to justify the imprisonment of peaceful American activists who were distributing flyers arguing against America’s participation in the First World War. Holmes’s assertion, which would shock any free- thinking person today, was that peaceful activism was akin to irresponsible actions designed to result in pandemonium and injury.
The U. S. Supreme Court, and even Justice Holmes himself, came to understand the error of that decision soon after. And the legal standard arising from that case was overturned in a later case called Brandenburg, in which the Supreme Court provided much more broad protection to political speech, permitting it in all cases except when it is intended to produce “imminent lawless action.”
While Canadian jurisprudence on speech is more restrictive than American First Amendment doctrines, both countries set the bar quite high for limiting free speech. Unless the speech incites violence, or wilfully promotes racial or religious hatred, it is protected.
In citing bad legal doctrine from a century ago that was used to imprison peaceful dissidents, Trudeau revealed that he does not quite grasp the purpose that free speech serves in a liberal democratic society. He seems not to understand that speech rights are the
HIS VIEW ON THE ISSUE PUTS HIM IN UNSAVOURY COMPANY.
cornerstone of a free society because they serve as the primary corrective to all other breaches of rights. And he fails to grasp that the “fire in a crowded theatre” analysis was abandoned precisely because it was far too deferential to censors.
Contrary to what Trudeau seems to believe, our free speech laws are drafted not to prevent hurt feelings, or impose respect. They exist to protect thought, dissent and unpopular views. And yes, that includes blasphemy.
If Trudeau’s comments are interpreted generously, he likely meant that decent people should not use their free speech to needlessly hurt the feelings of others. That may be a good moral rule, but it should not be conflated with a legal principle, just as mocking a religion should not be confused with attacking the people who adhere to it.
For his ill- advised remarks, Trudeau has come under blistering attacks online. He deserves it. Although some of the comments directed at him are disrespectful and may hurt his feelings, a world in which citizens are free to make such comments about leaders is better than the one Trudeau envisages, in which hurt feelings are used as a justification for limiting speech.