Oh, my, where to start!
Something that seems so self evident to me appears to be beyond even consideration by the majority of people in today’s society….to the point that people who hold the same convictions as I are presumed not to exist any longer.
That is sad, very sad…
So, please, do let me present to you my reasoning for why ‘Freedom of Speech’ ought to be unfettered and absolute.
If you indulge me, I would like to present several completely different lines of reasoning – all from ‘first principles’, all logical, and all leading to the inevitable conclusion that speech MUST indeed be absolutely unfettered.
First line of reasoning: from the principle of self-ownership.
Each and every person owns his or her self.
Body, mind and soul.
This is the core principle on which our civilization is built – to reject this core principle is to reject our society, our form of civilization. And, since this argument is being made for conduct within this civilization, it is ‘core’ – a fundamental and irrevocable ‘starting point’ for our logical journey.
It is immoral and wrong for one person to own another, which is why we have abolished slavery.
With the principle of self ownership comes the responsibility for absolute accountability for one’s actions.
What this means is that an individual is 100% responsible for one’s own actions.
Regardless of what an individual is exposed to, he or she is absolutely responsible for their conduct as a response to it.
This means that no matter how much somebody else may incite you or lies to you, you and you alone are responsible for acting – or not – on that incitement or on those lies.
Yet, our current laws are written so as to put partial blame for ‘incitement’ or ‘lie’ on the speaker, rather than on the ‘actor’. This is extremely dangerous because it fails to build into our citizens an appropriate sense of self-responsibility, it infantilizes our citizenry – and we must fight against this most vigorously.
For an infantilized citizen is no longer capable of being self-responsible and rejects the self accountability and independence of self-ownership…
In other words, failing to be accountable for one’s actions without blaming others for ‘incitement’ or ‘lies’ (or, indeed, ‘hate speech’) surrenders one’s mind and soul to another: in violation of the principle of self-ownership.
Which will necessarily mean the end of our civilization, since our civilization, as stated at the beginning of this argument, is founded on self-ownership.
I have presented this argument first because it is the most ‘theoretical’ and principle based, in my never-humble-opinion. I would welcome you, my dear reader, to try to find flaws in the logic of this reasoning and present them to me for discussion because I really cannot see how this particular line of reasoning could be faulted.
Many of you might accept this particular argument ‘in theory’ – something that might be wonderful to implement in a utopian society, but impossible to implement in a real-life society of blood-sweat-and-tears humanity. That is indeed a fair objection, to which my only retort would be that this is what we ought to be aiming, that this ideal ought to be what we strive for – and not start out from the very beginning by lowering the standards to such an extreme low that the very existence of those of us who hold this principled point of view is doubted or denied.
This I lament as even many ‘free speechers’ start out the debate by saying ‘nobody thinks freedom of speech ought to be absolute, so let’s start talking about where to draw the lines’…
NO!!!!
Freedom of speech MUST be absolute and any and all ‘lines’ limiting it MUST BE ERASED!!! Anything less is an existential threat to our very civilization and the abdication of the principle of self-ownership!!!
* * *
There are less theoretical and more practical reasons – yet all principled – for why freedom of speech ought to be absolute. I shall attempt to present just a few of them (as an exhaustive listing would take a lifetime to compile!) over the next few weeks and hopefully we can engage in a vigorous discussion.
For now, I’d like to start here, from the core principle of self ownership.
Your thoughts?
Xanthippa's Chamberpot 
September 20, 2014 at 14:20
So let’s say I enter a political discussion online and I piss someone off. That someone-X-to get back at me or to silence me starts posting malicious and false statements about me, such as that I molest children or that I steal. In the internet age these lies are part of what is out there and they are hard to erase. If you say the speaker should be accountable for his or her speech, why shouldn’t there be recourse available to me? X still has free speech but I can be compensated if his speech causes me harm.
This is very different from political speech or hate speech, which may be what your post is most about.
September 20, 2014 at 14:27
If someone posts about you that you molest children, you are free to refute this claim and publish your views as well as point out how the malicious rumour got started in the first place.
Every responsible person in society ought to base their actions on any topic based on doing some homework: if libelous crap is floating about, so will be its repudiation and the malice of the author of the malicious crap will be damaged, not your own reputation.
No, I do not limit this to political speech – I mean this for ALL speech.
Because we are all responsible individuals – or ought to be – and not give in to frivolous and unsupportable rumours…which alone therefore are incapable of damaging anyone’s reputation, excepting that of the originator.
September 20, 2014 at 15:10
It is a good polar case Marky and it underscores the difficulty which civilized people run into when they have to deal with barbarians. The problem being that the internet decontextualizes speech in ways which are not obvious to the casual searcher.
So, to take your example, if someone writes:
“climate deniers like “x” are no better than child molesters” there is a real danger that a search for “x” will turn up “x” is a child molester”. And no amount of subsequent backing and filling will change that result. And this is even more true if you phrase the point a little differently “Is “x” a child molester…I think not” can turn up in the searches as “”x” is a child molester”. (I had this happen when James Bow asked the question “Is Jay Currie a bigot.” and went on to conclude I wasn’t. For years “Jay Currie a bigot” was on the front page of the Google results for my name.)
There are at least two approaches to take to such occurrences. The first is to sue the pants off any one who is rude enough to directly or by implication say anything which might harm my reputation. The second is to recognize that there are values more significant than personal reputation at stake when one uses the state to silence speech (no matter how personally offensive or damaging).
My own sense is that the value of “reputation” in the age of Google has changed in interesting ways. First off, reputation is far more fluid than it was when there was a huge gap between the individual and the means of communication. Back in the era of dead tree media a slur in a newspaper could not be easily refuted. You pretty much had to create your own newspaper from scratch to really fight back. Which was prohibitively expensive. So, instead, it made sense to level the playing field in the Courts.
That has now changed completely. The reality is that, for free, I can create a blog called “x is a big poopy head” and with a little effort can get it onto the Google front page for searches for “x”. Or I can post a comment refuting what the nasty thing a person says about me and have pretty much the same weight (very little) as the thing said.
Given the ease with which one can counter slurs to reputation on the net it seems to me that other values can be engaged in considering whether recourse should be available. First, will the threat of a defamation suit chill speech? Second, is there a value to casual conversation which trumps the right to an unsullied reputation? Third, if there are non-judicial avenues available at nearly no cost, should the Courts concern themselves with such casual conversations. Finally, is there a greater public interest in free speech than there is in preventing minimal damage to purely private reputation?
In the end I think we have to adapt out legal framework to the changing nature of speech itself as technology shifts. When you had to set type by hand the idea of a “throw away” line made very little sense. Now a lot of the conversation online consists largely of throw away lines and snark.
If there is to be recourse at all I think that some very high thresholds should be imposed on those seeking redress before they are even permitted to file a claim. First, they should have to prove that they have, in fact, been damaged by the speech complained of. Second, they should have to prove that the damaging words were intended to inflict that damage. And third they should have to prove that they took steps to minimize that damage. These are pretty high bars but stifling speech, especially political speech, is prima facie against the public interest in free speech. Before the Courts should even consider restricting speech they should have clear evidence of serious harm to the person seeking to use the Courts’ power for purely personal ends.
September 20, 2014 at 15:53
Jay, I agree that there is a lot of complexity to the issue. One way to tackle the complexity is to have the legislature study the issue and pass a law. That would take the common-law defamation aspects away from the courts and the courts instead would only have to deal with whether that new legislation had been breached or not.
I will be interested to read what the expert sad in the case before the courts now and, of course, in the ultimate decision in that case.
But the principles that are involved should not be assessed only in terms of the actual facts in that case and the court can only decide the case before it and not make a determination of how cases with other facts would be decided. That is why I think that model legislation adopted by the various provinces would be a good thing. That said, as we can see in this thread and discussion, it would be a challenge for the legislature to come up with a law that would be accepted by most people. > > >
September 20, 2014 at 16:23
Here, bot you and MarkyMark are making some very interesting points, but, Jay, you have not addressed the central tenet of my argument: that there ought to be NO laws restricting freedom of speech because to pass even the most awesome law restricting speech surrenders onto the government the power to regulate speech….and giving the government the power to regulate speech is a violation of the principle of self ownership, the basis on which our civilization is founded.
September 20, 2014 at 16:52
I don’t see why all speech should be protected as if expression or opinion. Say I’m hiking on a cliff side trail and get lost. A misanthrope comes along and I ask for help. Instead of pushing me over the cliff he points me in the wrong direction or uses words to lead me over the cliff and I don’t clue in until it is too late. Why should that behaviour be protected because speech is involved? > > > Respond to this comment by replying above this line > New comment on Xanthippa’s Chamberpot > > > xanthippa commented on In Defense of Absolute Freedom of Speech: The Principle of Self Ownership. > > in response to Jay Currie: > > It is a good polar case Marky and it underscores the difficulty which civilized peop
September 20, 2014 at 17:07
Let’go back to the principle of self ownership: if nobody else owns you, then they are not responsible for your behaviour.
Sure, you can choose to follow someone’s advice, but it is up to you to assess that person’s credibility. Your action – your responsibility.
September 20, 2014 at 17:06
Sorry or this: tobacco companies have clear evidence of link to cancer but produce ads saying there is no link at all. Should that speech be without responsibility and accountability? How can I as as s private citizen without access to a research lab discern that the speech is false?
I think I’m saying political speech is very different and deserving of protection. > > > Respond to this comment by replying above this line > New comment on Xanthippa’s Chamberpot > > > xanthippa commented on In Defense of Absolute Freedom of Speech: The Principle of Self Ownership. > > in response to Jay Currie: > > It is a good polar case Marky and it underscores the difficulty which civilized peop
September 20, 2014 at 17:16
Caveat emptor.
You are responsible for choosing whom you believe.
In the absence of government-owned labs, people who would wish consumers to trust their products will pay third parties with testing labs to provide credible information about them. Using the logo to lead you, the consumer, to the info. The third parties doing the product safety research will quickly develop a reputation for veracity – or lack thereof… An independent lab which would hush up info about safety concerns of, say, smoking a, b or c would soon find their certification is worthless and nobody will pay for it… On the other hand, credible lab’s certificate of safety logo would put most consumer’s mind at ease that said product is indeed safe – or, at least, they would be able to read the information and assess whether or not they wish to use the product despite some risks.
On the other hand, permitting the government to decide what may or may not be said about the safety or otherwise of a product is such an invitation to corruption and croneyism as to be risible!
September 20, 2014 at 17:40
Ok one more example to try to see if there are any limits in your view. Let’s say the law goes your way and freedom of speech is absolute. Must I be compelled to listen to speech I abhor? Example: say I’m organizing a Jewish community meeting on issues of interest and there is s panel. Representatives of Jews for Jesus and Jews for Jihad like [if I name an example that likely is defamatory under existing law absent an actual person who has joined something like ISIS)]. Must I include them? Does it matter if my group has government funding? If freedom of speech is absolute, why does my preference not to hear them trump their absolute right to have free speech?
September 20, 2014 at 18:02
Awesome point!
Let’s take it one step at a time…
First of all, it is deeply inappropriate for a government to subvert civic groups (political or not) with bribes of public money. So, let’s get that bit off the table: in my universe, there would be no government ‘funding’ (which is a cute little nickname for subvert) any ‘group’.
In the ‘public square’, everyone has equal right to speak.
At a private venue, the person who has vested property rights (owns the venue, has rented it, etc.) has the right to control what is said at their event. Thus, said person controls who speaks and who enters to listen (may charge a fee for admission, etc.).
This, however, is more a function of property rights rather than freedom of speech rights.
If I were to project this example to the blogosphere: I do not – and should not, nor should the government – control who gets a blog. Currently, one can start a blog for free…so there is no financial barrier to entry, as there would be in dead-tree media times.
However, I DO control what is posted on MY blog: I have staked out my own little turf and I control who sees it (private or public) and I retain control over what is posted here (I can turn the comments on or off). As such, within this little space of mine, I have no obligation to present points of view or give space to opinions I disagree with. But this is an issue of me owning my own blog, not an issue of denying somebody else the right to start one of their own and earn a reputation of their own.
I hope this clarifies that point.
September 20, 2014 at 14:34
OK I understand you but don’t agree. Let’s say I am applying for a job as a teacher. When a background check is performed on me and the prospective employer reads what has been said about me, do you think they’ll take a chance on me as opposed to the many other qualified candidates about whom there is no such allegation? The employer will get sued if they indeed hire a child molester and I in fact then modest children. I think, with respect, you’re assuming somewhat of a perfect marketplace of ideas where the reasonable person can wade through it all and easily tune out the false claims.
What about the classic example of yelling “fire” in a crowded theatre just for “sport” with the result being that there is a stampede in which people are injured or die? You seem to be requiring people to be able to accurately assess that the speech is inaccurate and let the wrongdoer off the hook without being accountable for the harm caused by that bad act. Why does the fact that the bad act is speech rather than a battery (another type of tort) make it different?
September 20, 2014 at 14:51
You raise a couple of issues and will answer them in turn.
First, let me address the ‘FIRE!’ in a crowded theater….or, rather, let me let the great orator Christopher Hitchins answer that one:
And let me add to this that I myself have, indeed, not only shouter ‘Fire!’ in a theater during a freedom of speech debate, I have also on that occasion attempted to incite Salim Mansur, Daniel Pipes and another panelist to violence against the moderator, Fred Litvin, precisely to demonstrate how fatuous and downright silly criminalizing speech, even incitement, is.
It is the responsibility of an employer to do due diligence on their employees and acting on unsubstantiated rumours is a failue of due diligence. Starting unfounded rumours will affect the reputation of the author of these, not of the subjects of these – as was indeed testified to on Thursday by the court-appointed expert, Dr. Elmer, during the Baglow/Free Dominion trial.
I am not a lawyer, but, it is my understanding that ‘battery’ involves physical contact – and thus it would violate the ‘your freedom to swing your arm stops where my nose begins’ thingie. ‘Speech’ may involve sound, but not of sufficient volume to cause physical harm…so there is really no comparison here.
September 20, 2014 at 15:05
Interesting. You’ve clearly spent time thinking about these issues. While I believe in freedom of expression, at times speech isn’t about expressing opinions but is about doing harm. If you don’t like the fire in the crowded theatre example, how about this: you’re escaping a repressive regime in a communist or fascist country with your family. You’re about to succeed when a collaborator neighbour turns you in with words. Are they accountable to you?
In terms of the teaching position example, you’re imposing a due diligence duty on employers that doesn’t exist. I don’t think they’re required to evaluate whether online claims of pedophilia are accurate.
I believe in protecting free speech but sometimes the speaker ought to be accountable for the speech.
September 20, 2014 at 15:16
Interesting that you would pick an example of escaping, with my family, from a communist regime…as, indeed, I have.
That is why I am very careful to define the parameters of my argument: OUR civilization. ‘Western’ civilization – one founded on the Lockian principle of self-ownership.
Not every civilization IS based on self-ownership – quite to the contrary. Some civilizations are based on very different principles. Islam, for example, is founded on the principle of slavery to Allah. Communist societies are based on community ownership of the citizens. Freedom of speech is foreign to these societies: indeed, it poses just as existential a threat to them as limiting it poses to ours.
As for employers – I disagree with you: that diligence indeed falls on the employer. Here, again, I speak from a position of experience: when I employed people to acts as agents for a company that I started and operated, I was ultimately responsible for their actions, which they took on my behalf, acting as my agents. Thus, it was indeed part of my responsible conduct to evaluate their background and separate fact from rumour…
Of course the speaker MUST be held accountable for their speech – but by their audience and not to any external authority!
September 20, 2014 at 22:05
Xanthippas, you’re right, I am avoiding your point. So let’s grapple.
Self-ownership is a powerful and useful abstract. But how does it cash out? As Aristotle pointed out, man is a political animal. We live in a polis, a society. We might want to claim Self-ownership but it is a hollow claim given the claims of all the other people we deal with. And so we have laws. Without going into the details we have laws to govern, and thereby restrict, conduct. And, in general, we accept those laws. However, at the margin, some of those laws are contested. One of those margins is speech.
The problem of speech is that, one the one hand, speech has consequences and, on the other, it is just words. Where is the line? It is pretty well agreed that if I punch you in the face or steal your car my self ownership does not allow me to claim immunity. Nor should it.
The argument about speech rests on the presumption that no speech is the equivalent of a punch in the nose and none can take anything of value from me.
My position is that unless the speech complained of can demonstrably be shown to physically assault me or be the proximate cause of such assault it should not be restricted. My related position on defamation is that there must be proof of actual loss before a person should be able to access the Courts to “protect their reputation”.
A long departed and brilliant lawyer acquaintance of mine, who was the Vancouver Sun’s very successful libel lawyer, famously said, “There is nothing cheaper than a Writ.” At the time a Writ was $25 and his clock started at $250.
When it comes to defamation the underlying allegation is that the “defamer” has taken something of value. They have stolen the car. My view is that before anyone should be allowed to make that claim they need to prove that a) there has been a theft, b) that what has been lost has actual value, c) that they have made a good faith attempt to regain that which was allegedly taken. And I think that they should be required to make that case before they are allowed to use the Court for their personal ends.
So I am not a free speech absolutist. I think there are such things as incitement and defamation. But I want the bar set very, very high in both cases.
In the Baglow v Free. Speech case I think the summary judgement of the Court in the first instance was about right. No serious lines were crossed. In the rough and tumble of a bar conversation I can easily imagine John calling me Canada’s biggest Israel supporter with precisely the same intent as Peter had. And it would not have been inconceivable that this would have been picked up by Google and when next I visited Saudi I might be turned away. So what? You walk into the bar you take your chances. Grown ups know that. So should the law.
September 21, 2014 at 08:33
Jay, all the court can do is apply the law. it cannot just change the law in the way either you or Xanthippa are requesting. I know that Connie Fournier has been very interested in working for legislative change or reform, and that is a different matter. I think all the Court of Appeal did here was suggest that a trial would be useful because the court would hear from the witnesses with the opportunity for there to be an assessment of credibility, an opportunity for cross examination, etc. The Court of Appeal also said that a trial would allow for an expert to take the court through how long established legal principles might apply in the internet age and in the context of blogs, discussion forums, Facebook and Twitter including an examination of how participants understand the terms of engagement–is it a bar, for instance, to use your example? The C of A reasons were pretty clear.
I will be interested to learn whether the defense position in the trial has been along the lines of this very post or whether it is based on the law as it is and applying that law to the facts.
September 21, 2014 at 09:46
Me here – just quickly.
The defense is based on the law – I do not believe that the parties in this are free speech absolutist. That is my position and only my position…
As a matter of fact, it was Peter O’Donnel, on the stand, doubting the very existence of us free speech absolutists that prompted me to go on this little rant.
September 21, 2014 at 09:59
Thank you – and sorry it took me so long to respond – I am a slow thinker.
Where we agree: we have laws to restrict actions. True – and I am not an anarchist (except perhaps the ‘first world version’: http://www.reddit.com/r/firstworldanarchists ) and recognize the need for some of the laws we have to govern our actions.
‘Self-ownership’ does not permit you to punch anyone, nor steal their property: to do so would violate their principle of self-ownership. In the ‘punch’ instance, by violating the right to bodily integrity which stems from self-ownership, in the ‘car theft’ in depriving one of property…and as ‘property’ is the ‘fruit of labour’ of one’s body, which one self-owns, then property rights are an extension of ‘bodily integrity’ which, as I said earlier, is an extension of self-ownership.
The only way ‘speech’ can ‘physically damage’ you is if it is at such very high volume that the vibrations of the molecules of air would damage your body’s or your property’s molecules – and, obviously, that is not what we are discussing here. As such, it is only actions that actors do or do not take as a result of speech that may or may not injure you.
In which case I say that the actors are responsible, not the speech.
September 21, 2014 at 11:53
I look forward to greater clarity as a result of the decision. As of now if we are debating the Middle East I assume that there is a risk that if I call someone a supporter of Hamas that I may be liable even though I can be called a supporter of apartheid and oppression without that being similarly actionable. Saying that someone is on the same side as Hamas may not attract that same risk. It is complicated and I’d like to know what the rules are.
September 21, 2014 at 18:02
Xanthippa:
Much of this discussion avoids your main point, and takes for granted that any law may legitimately be enacted, based solely on its intended outcome.
But some laws are inherently unjust, no matter how benevolent the intended outcome.
For instance, Jay writes “without going into the details we have laws to govern, and thereby restrict, conduct.”
But we cannot afford to gloss over the details, because it obscures the quintessential question:
Under what circumstances is it legitimate for laws to govern conduct?
The answer, of course, is that conduct which betrays the trust or infringes the rights of another person and thereby causes harm is morally wrong. But nothing else is. And the law may not justly be proscribe anything that is not morally wrong.
No harm, no crime.
No betrayal, no crime.
No infringement, no crime.
And where there is no crime, the law must remain silent.
Therefore an act of speech, in and of itself, can never be a crime.
Only when speech is instrumental to the commission of a crime is it legitimate for the law to concern itself with speech. But only insofar as an act of speech may be the means by which a crime is committed. The crime itself always consists of causing harm through betraying the trust or infringing the rights of someone specific.
Losing sight of these principles leads to the passage of oppressive, tyrannical laws. For example, laws prohibiting speech which might motivate someone, somewhere, sometime, to feel certain emotions, maybe.
Of course, that’s a ludicrous example; no one would ever enact such a vile, stupid law.
Oh, wait…
September 22, 2014 at 05:04
markymarkincanada re:
Let’s say the law goes your way and freedom of speech is absolute. Must I be compelled to listen to speech I abhor?
That question is at the crux of Baglow v. Smith, which is actually intended to explore means of squelching freedom of expression absent the heavy hand of CHRAct Sec 13.1 – and equivalent Provincial legislation hobbled by association.
Where you posit the example of an ethnic association being forced to hear contrary views by dictate of government, no better example could be found than Sec 13.1 Hearings, and/or their Provincial equivalents.
The foray into attempting to punish ‘hate-speech’ devolved within 2 decades into use of methods formerly associated with bureaucracies found in oppressive regimes.
Successive turns of government encouraged, or turned a blind eye to the growing menace of censorship through ‘Human Rights’ hate-speech litigation, used as a means of causing financial ruin to any Defendent from costs associated with litigation which might well last a decade.
FreeDominion faced a CHRC investigation in 2007, the notice of which triggered thousands of comments. Those comments were cherry-picked for use in a ‘cyber-defamation’ suit, also launched in 2007 by a former CHRC employee, which referenced opinions by 35 different members.
Baglow v. Smith is closely related to that suit, in that both Claimants have taken an extraordinary interest in the FreeDominion discussion forum due to the publication therein of commentaries they are not compelled to read, but do in pursuit of legal litigation rather than public debate.
The former suit doubless influenced the triggering and continuation of Baglow v. Smith, with the main difference being that the Complainant in the latter was openly insulting online to those whose views he deemed as unfit for public viewing.
It’s quite extraordinary that FreeDominion hosts and members have been subjected to so much animosity, legal and otherwise, for views expressed in a forum no person is compelled to read.
To posit that what was said in that forum might have a deleterious impact on any individual is no more realistic than expecting posts by forum members to decide public policy.
Yet that is exactly what the Complainant is attempting to do with this frivolous suit – decide public policy, through the Courts, based upon the ludicrous claim that comments from one of his many stupid online flame wars has compromised his future.
September 25, 2014 at 15:28
Not quite true, I compelled my butler to read it.