National Post (National Edition)
Setting limits on your right to hear
Free expression means judging for yourself
THE RIGHT ... TO HEAR WHAT OTHERS HAVE TO SAY.
After a few hundred years of working on it you’d think by now we’d have a handle on this freedom of expression thing. But it’s 2017 and here we are, still arguing about who has the right to speak, on what platforms, to which audiences and in what contexts. We don’t agree on much, except that free speech is a good thing except when it isn’t. And increasingly, it isn’t more often than it is.
This failure to take free speech seriously is a thoroughly bipartisan affliction. The monkey-king leaders of the alt-right and their talking muppet servants like Ann Coulter and Milo Yiannopoulos have effectively turned hate speech into performance art, with no real interest in either the consequences of the hate or in the value sincere debate can contribute to democracy.
And the ctrl-left, from campus snowflakes to the just-in-it-for-the-riot forces of antifa, happily play into their hands, from whining about safe spaces to forcibly and violently preventing people from exercising their legitimate civil liberties.
But there’s a bigger problem at work, which is that this sort of behaviour from both sides is not actually at odds with the most common understandings of free expression and its rationale. In fact, just the opposite is the case: most of the current attempts to restrict free speech are natural extensions of the justifications for it.
If you ask most people why free speech is a good thing, they’ll point out that it’s in the constitution. But why is it in the constitution? Well, maybe because it’s good for democracy, for artistic ennoblement, or selfdiscovery, or because it is the foundation of scientific inquiry or for the search for truth more generally.
What all of these justifications for a right to free expression have in common is that they are consequentialist in nature. That is, they ground the defence of freedom of speech in the effects speech has. On the whole, we believe that allowing broad protections for freedom of expression results in good things for society.
This line of defence has a solid philosophical and legal pedigree. Probably the bestknown version is found in John Stuart Mill’s On Liberty, where he argued the right to speak was limited by the harms that result. But this focus on the consequences of speech is firmly embedded in the Supreme Court’s interpretations of the freedoms outlined in section 2 of the Charter of Rights and Freedoms. The court’s take, through rulings from Taylor to Keegstra to Whatcott, has been relentlessly consequentialist, always taking care to weigh the guaranteed right to free expression against the harms — both actual and hypothetical — that might come from hate speech.
Actually, the court goes even further. It has identified what it calls the “core principles” that are served by free expression, which include the search for truth, the quest for self-development and the fostering of democracy. As the court sees it, speech that doesn’t serve these goals is not necessarily entitled to the same constitutional protections.
Lots of people have pointed out that this amounts to a reverse-onus clause. In theory, it should be up to the state to explain why it should have the right to limit speech, but in Canada we are well down the road to a place where people have to justify to the courts why their speech should be permitted.
It’s not a long toss from there to the bizarro-land conclusion that entire groups can be silenced on the grounds that this silencing is an effective way of serving the goals that free speech serves more generally.
We got here because the problem is with the way we framed the question, as a debate over the benefits of free speech and the consequences we are willing to tolerate. Instead, what we should be focused on is the right of people to hear what others have to say, and how this fits into a broader account of individual freedom.
What’s the difference? If you turn the free speech debate on its head and treat it as a right to hear what someone has to say, the constitutional rationale for it becomes a lot clearer: The right to hear or read something and judge its worth or merit for yourself is the basis for being treated as an equal, rational and autonomous agent. We shield things from children precisely because we don’t think their rational faculties are sufficiently well developed. They don’t know how to evaluate something by their own lights. That’s why a big part of parenting is bringing kids along the path to autonomy, teaching them to judge and think for themselves.
Hearing what people have to say and judging its merits for yourself is the mark of being an adult. And part of being an adult is having the right to make mistakes, to make bad judgments or decisions, and take responsibility for what follows.
It just so happens that a society made up of autonomous individuals making independent rational judgments about what others have to say is the basic condition for the possibility of a liberal democracy. The fact that so many people, on the right and the left, are willing to have their right to hear limited by governments, universities or even social media mobs, is a further sign of the relentless infantilization of our culture — and goes a long way toward explaining the current crisis of liberalism.