Limits of freedom of expression

[dilettante]

Branching off from a different thread (http://www.discussionworldforum.com/forum/showthread.php?p=54665#post54665) in the News & Events section:

Here's the basic question: Under what circumstances should freedom of expression be curtailed?

Or put another way, what (or how) should people not be free to express?

Are there any guiding principles? Or is this one of those "I know it when I see it" things?


One response:
Telling lies about people should be illegal.

And of course slander, libel, threats of physical harm, advocating overthrowing the government, expressing certain political beliefs, disrespecting certain individuals, obscenity, indecency, pornography (esp. involving children), and blasphemy are all prohibited forms of expression in some contexts.

Whereas destruction of property, disturbances of the peace, physical violence, the depiction of certain images, and even being physically present in certain places are all prohibited means of expression in some contexts.

[Michael]

The USA curtails the right of Americans to speak of insurrection.

In Canada, we have laws that curtail the right to make hate speech.

[MeMyselfAndI]

In Russia, you can say what you want about the government, about the oligarchs, about the generals, about President Medvedev. You just cannot, ever, under any circumstances, criticize Putin himself. :D A couple newspapers broke that rule, and simply disappeared, as a result. Just exactly that: one day, you could find them on the street stands, and next morning, they were gone.

As far as suing for libel (or anything else), if you have enough money and powerful connections, you can win. This is why people here watch with much interest processes between different "Gods" of our Kremlin Olympus. Those battles of the giants shake the whole country :lol:

But as for when freedom of expression should be restricted, I think where the person starts calling for strife, for violence. Like, advocating racism, terrorism, war, genocide, should not be allowed.

[pramjockey]

In Russia, you can say what you want about the government, about the oligarchs, about the generals, about President Medvedev. You just cannot, ever, under any circumstances, criticize Putin himself. :D A couple newspapers broke that rule, and simply disappeared, as a result. Just exactly that: one day, you could find them on the street stands, and next morning, they were gone.

As far as suing for libel (or anything else), if you have enough money and powerful connections, you can win. This is why people here watch with much interest processes between different "Gods" of our Kremlin Olympus. Those battles of the giants shake the whole country :lol:

But as for when freedom of expression should be restricted, I think where the person starts calling for strife, for violence. Like, advocating racism, terrorism, war, genocide, should not be allowed.

Why? Why drive the uncomfortable speech underground? It's not like the speech goes away. It just adds mystique to it.

[MeMyselfAndI]

Why? Why drive the uncomfortable speech underground? It's not like the speech goes away. It just adds mystique to it.

Because it causes conflicts between people and between whole ethnic groups. Maybe in America, you sit comfortably around tables and discuss these issues. We Russians have not evolved to that level yet. We have extremist fanatics rioting, stabbing, shooting, burning cars on the streets over ethnic issues. In Russia, ethnic strife kills people. Back in 2004, neo nazis in Saint Petersburg killed Khursheda Sultanova, daughter of a Tajik migrant worker. Stabbed her in front of her father. She was 9 years old. Think about that.

Anybody who calls for racial strife deserves a bullet in the head.

[Donkey]

Branching off from a different thread (http://www.discussionworldforum.com/forum/showthread.php?p=54665#post54665) in the News & Events section:

Here's the basic question: Under what circumstances should freedom of expression be curtailed?

Or put another way, what (or how) should people not be free to express?

Are there any guiding principles? Or is this one of those "I know it when I see it" things?


One response:


And of course slander, libel, threats of physical harm, advocating overthrowing the government, expressing certain political beliefs, disrespecting certain individuals, obscenity, indecency, pornography (esp. involving children), and blasphemy are all prohibited forms of expression in some contexts.

Whereas destruction of property, disturbances of the peace, physical violence, the depiction of certain images, and even being physically present in certain places are all prohibited means of expression in some contexts.

A thought just occurred to me... is erotica with minors illegal? It seems to me that it would be protected speech, whereas depictions of actual minors is not. My understanding of the basis of the law is the exploitation of the real children.

[dilettante]

A thought just occurred to me... is erotica with minors illegal? It seems to me that it would be protected speech, whereas depictions of actual minors is not. My understanding of the basis of the law is the exploitation of the real children.

I think you're right. The law exists to protect the children who would potentially be involved in such an industry, not to protect the prospective consumer of such material.

[dilettante]

In Canada, we have laws that curtail the right to make hate speech.

How do they define "hate speech" with regard to the law?

[pramjockey]

Because it causes conflicts between people and between whole ethnic groups. Maybe in America, you sit comfortably around tables and discuss these issues. We Russians have not evolved to that level yet. We have extremist fanatics rioting, stabbing, shooting, burning cars on the streets over ethnic issues. In Russia, ethnic strife kills people. Back in 2004, neo nazis in Saint Petersburg killed Khursheda Sultanova, daughter of a Tajik migrant worker. Stabbed her in front of her father. She was 9 years old. Think about that.

Anybody who calls for racial strife deserves a bullet in the head.

But the conflicts are there, despite the bans on such speech. Look at the UK - there are bans on all sorts of speech, but there are clearly racial/ethnic tensions regardless.

IMHO, the resolution to these problems isn't through suppression. Yes, there were several decades of relative peace under the boot of oppression in Yugoslavia, but as soon as the boot was removed, the fighting started. The resolution will have to be through education and communication. Eventually these groups are going to have to figure out how to live together, just as the Israelis and Palestinians/Arabs will (and many have).

One may also wonder if the suppression of speech actually adds to the violence, rather than reducing it.

[MeMyselfAndI]

But the conflicts are there, despite the bans on such speech. Look at the UK - there are bans on all sorts of speech, but there are clearly racial/ethnic tensions regardless.

IMHO, the resolution to these problems isn't through suppression. Yes, there were several decades of relative peace under the boot of oppression in Yugoslavia, but as soon as the boot was removed, the fighting started. The resolution will have to be through education and communication. Eventually these groups are going to have to figure out how to live together, just as the Israelis and Palestinians/Arabs will (and many have).

One may also wonder if the suppression of speech actually adds to the violence, rather than reducing it.

I suppose you are right. It is true that the far right groups here did become more violent in the 2000s, when Putin's government cracked down on them and forced them underground... In the 90s, the nationalists had representation in the Duma and had a legitimate voice in politics, and there was not so much street violence of that sort back then. Now, today, majority of the far right feel that the government is controlled by either rich Jews and/or Muslims, or by Americans, or a combination of those; and they position themselves as defendors of the Slavic/"White" race in Russia.

Actually, what is happening, is the whole country is being, slowly but surely, polarised and divided along ethnic and religious lines. In Moscow, the ultra nationalists do annual "Russian March".
http://pics.livejournal.com/mmet/pic/00271srw
http://img11.nnm.ru/c/1/d/e/9/2745d3b8d31ebed86a83f24ddde.jpg
In Ulan-Ude, Buryatia, big antifascist marches take place similarly
http://img851.imageshack.us/img851/6263/ddsc5406.jpg

This is especially evident among football hooligan groups, like the violent rivalry between [ideologically far right] Moscow Spartak and [far left] Anzhy Dagestan
http://savepic.ru/1804997.jpg

And it does get violent very often. All the attacks and murders by far right of antiFA activists, minorities, etc. And, the "fight back": killing of Spartak hooligan Egor Svoridov in a fight in Moscow by Anzhy hooligans; the young man in Kazan Tatarstan beat nearly to death by local antifascists for wearing a T-shirt they considered nationalist.

I don't even know what can be done...

[pramjockey]

It's an incredibly difficult position - and there are so many other tensions going on, with economics, governmental changes, pressures from pro-liberalization on one side and holders-on to the Soviet ways on the other. I can only barely scratch the surface of understanding.

I don't know that there is a singular solution, and certainly there is no short-term one.

[Michael]

How do they define "hate speech" with regard to the law?

It is defined very specifically according to topic (religion and race being the only two topics covered). The wording of the law addresses "incitement" being the primary issue. Basically "hate speech" itself, is a crime.

Merely speaking in private isn't sufficient - it is all about publication/public.

And the Bible is specifically exempted by name (it has to be, otherwise it would be libel under this law).

Btw, that law applies to this forum. If some white supremists or neo-nazis were to post their usual toxic propaganda here, I'd be legally libel for criminal charges if I didn't delete/ban them sufficiently quick enough or allowed them to post that crap.

[Non Sequitur]

And the Bible is specifically exempted by name (it has to be, otherwise it would be libel under this law).

I'd be interested to see who you would prosecute under that law...

[Michael]

I'd be interested to see who you would prosecute under that law...

The impetus for the creation and adoption of Canada's 'Hate Speech' law was almost entirely driven by the desire to create legal tools to deal with the white supremist movement. The law definitely has been used to shut down web-servers that these groups use as well as to prosecute such groups and/or to interfere with the financial support network of these groups.

Canada has quite a hotbed of such groups, mostly based out in Alberta.

As for the inclusion of religion, that would likely have come from the demands of the usual suspect - professional Jewish activist groups that are mainstays of lobby groups in virtually every western nation's capital. That of course led to problems for the Christians since the Bible definitely contains 'hate speech' according to Canada's law. That almost killed the law, but then they came up wiith the 'infamous' exception for the Bible - which some of us secular types found highly ironic and appropriate. Indeed, the Christian groups still tend to oppose this law on this ground specifically - since it calls a spade a spade and the spade definitely doesn't like that - even though they have a legal 'pass' for their beloved book and its teachings. ;)

[Non Sequitur]

The impetus for the creation and adoption of Canada's 'Hate Speech' law was almost entirely driven by the desire to create legal tools to deal with the white supremist movement. The law definitely has been used to shut down web-servers that these groups use as well as to prosecute such groups and/or to interfere with the financial support network of these groups.

Canada has quite a hotbed of such groups, mostly based out in Alberta.

ah... That makes more sense to me

[Michael]

ah... That makes more sense to me

That part of the law has never been controversial up here and has been widely supported by all political parties as well as strong majority opinion.

Applying the law more widely to other specified targets is highly controversial and leads to splits in political party support and much less public opinion support.

Btw, the 'hate speech' law does NOT apply to sexual orientation - that is not a specifically protected target enumerated in the wording of the law.

[Michael]

"Hate propaganda" means "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319." Section 318 prescribes imprisonment for a term not exceeding five years for anyone who advocates genocide. The Code defines genocide as the destruction of an "identifiable group." The Code defines an "identifiable group" as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." Section 319 prescribes penalties from a fine to imprisonment for a term not exceeding two years for anyone who incites hatred against any identifiable group. Section 320 allows a judge to confiscate publications which appear to be hate propaganda. Under section 319, an accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Source (http://en.wikipedia.org/wiki/Hate_speech_laws_in_Canada)

Hmmm... this specifically includes sexual orientation. That's news to me since it wasn't in the original law that I discussed with my lawyer when I set up this forum (regarding my legal responsibilities under this law).

Btw, 319(b) is the 'bible-exemption' rule.

Btw#2, the law specifically applies to 'internet discussion forums' as well as web-sites and other internet-related communications (originating in Canada).

[dilettante]

It is defined very specifically according to topic (religion and race being the only two topics covered). The wording of the law addresses "incitement" being the primary issue. Basically "hate speech" itself, is a crime.

Merely speaking in private isn't sufficient - it is all about publication/public.

And the Bible is specifically exempted by name (it has to be, otherwise it would be libel under this law).

Btw, that law applies to this forum. If some white supremists or neo-nazis were to post their usual toxic propaganda here, I'd be legally libel for criminal charges if I didn't delete/ban them sufficiently quick enough or allowed them to post that crap.

I found this: http://en.wikipedia.org/wiki/Bill_C-250_(37th_Canadian_Parliament,_2nd_Session)

Doesn't mention the Bible specifically, just "religious texts" and adds sexual orientation to the list, along with race and religion.

EDIT: just saw the post above. Looks like C-250 amended the existing code in 2004.

[Donkey]

I found this: http://en.wikipedia.org/wiki/Bill_C-250_(37th_Canadian_Parliament,_2nd_Session)

Doesn't mention the Bible specifically, just "religious texts" and adds sexual orientation to the list, along with race and religion.

That would make sense because I don't think the Bible is the only religious text to hate on people...

[Michael]

I found this: http://en.wikipedia.org/wiki/Bill_C-250_(37th_Canadian_Parliament,_2nd_Session)

Doesn't mention the Bible specifically, just "religious texts" and adds sexual orientation to the list, along with race and religion.

EDIT: just saw the post above. Looks like C-250 amended the existing code in 2004.

No, the actual law doesn't specify "the bible" but everyone knows that's exactly what the wording of the law means. Throughout the political debate, that was always called the "bible exception rule".

Btw, in case anyone is curious, we have a province here in Canada called Alberta that is VERY AMERICAN like - it is Canada's bible belt (we call them 'Prairie Preachers' up here), it is the home of the white supremist movement and it is the home of the anti-abortion movement (it also has one of the highest per capita CO2 emissions on the planet - mostly due to the oil industry located there).

[Donkey]

No, the actual law doesn't specify "the bible" but everyone knows that's exactly what the wording of the law means. Throughout the political debate, that was always called the "bible exception rule".

Btw, in case anyone is curious, we have a province here in Canada called Alberta that is VERY AMERICAN like - it is Canada's bible belt (we call them 'Prairie Preachers' up here), it is the home of the white supremist movement and it is the home of the anti-abortion movement (it also has one of the highest per capita CO2 emissions on the planet - mostly due to the oil industry located there).

My understanding of Alberta is it is more like the "other" Bible belt, than the traditional US Bible belt (the south).

A lot of the white supremacist movement and militia types are out in the hinterlands of Montana and Dakotas in their little bunkers. Remove the border between US and Canada there and I don't think much changes.

[Michael]

My understanding of Alberta is it is more like the "other" Bible belt, than the traditional US Bible belt (the south).

A lot of the white supremacist movement and militia types are out in the hinterlands of Montana and Dakotas in their little bunkers. Remove the border between US and Canada there and I don't think much changes.

Oh yes, very similar to Montana & the Dakotas rather than the Deep South. Throw in a bit of the Texas oil/rancher attitude and that's Alberta.

I'm sure andrewl could add some local color to that description! :lol:

Btw, I think from a 'political-cultural' perspective, Alberta is the most 'American' of Canadian provinces and Minnesota is the most 'Canadian' of American states.

[Donkey]

Oh yes, very similar to Montana & the Dakotas rather than the Deep South. Throw in a bit of the Texas oil/rancher attitude and that's Alberta.

I'm sure andrewl could add some local color to that description! :lol:

Maybe we should start referring to that area as the Bible... sleeve, or something. I don't know. :lol:

[Non Sequitur]

Branching off from a different thread (http://www.discussionworldforum.com/forum/showthread.php?p=54665#post54665) in the News & Events section:

Here's the basic question: Under what circumstances should freedom of expression be curtailed?

Or put another way, what (or how) should people not be free to express?

Are there any guiding principles? Or is this one of those "I know it when I see it" things?

I think it's one of those "i know it when I see it" things. This is because as soon as we lay down a hard and fast theoretical rule I can probably think of a real world situation where the theory doesn't work

The only exceptions are the ones that have been already listed: Child pornography and insurrection.

[Michael]

A thought just occurred to me... is erotica with minors illegal? It seems to me that it would be protected speech, whereas depictions of actual minors is not. My understanding of the basis of the law is the exploitation of the real children.

Sorry, I missed this earlier.

As far as I know, 'erotica with minors' (ie. written words) is a bit of a grey area, but no one will try to prosecute it because of the certainty that the courts would strike it down. Thus, 'erotica with minors' is defacto quasi-legal. Certainly illegal if you try to sell it, but not necessarily illegal if you just write it or possess it. I know there are US-based websites that host such material under the label of "amateur fiction".

[Non Sequitur]

In Canada, we have laws that curtail the right to make hate speech.

I am curious how you feel about this law?

[Michael]

I am curious how you feel about this law?

I'm okay with it.

In all matters of 'constitutional' rights, I like to use Canada's own "Oakes Test" to determine if any given violation of constitutional rights is reasonable and this one passes the test.

This constitutional test works in Canada because our constitution specifically states that rights can be violated, but only in a way that is reasonable and consistent with a free and democratic society.

Generally speaking, I accept that there are political groups that will seek to use 'hate speech' to intimidate minorities they don't like. This is obnoxious and is not consistent with the principles of a free and democratic society, thus, limiting this right is fair and reasonable.

Btw, I think I created a thread about the 'Oakes Test' a long time ago, may have been back at USPO - it is a very interesting legal rule that we use for deciding constitutional challenges.

R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause (Section 1) of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society.

Source (http://en.wikipedia.org/wiki/R._v._Oakes)

In case anyone is curious, that would be "Regina vs Oakes" in full form. Regina means the Queen. If she were a he, it would be Rex. In the courtroom, they would refer to "the Crown vs Oakes". The original case involved the state prosecuting a drug dealer named Oakes.

[Donkey]

I think it's one of those "i know it when I see it" things. This is because as soon as we lay down a hard and fast theoretical rule I can probably think of a real world situation where the theory doesn't work

I think that goes for just about any social/political/economic theory imaginable.

That's why I don't much care for theories when the rubber meets the road.

Sorry, I missed this earlier.

As far as I know, 'erotica with minors' (ie. written words) is a bit of a grey area, but no one will try to prosecute it because of the certainty that the courts would strike it down. Thus, 'erotica with minors' is defacto quasi-legal. Certainly illegal if you try to sell it, but not necessarily illegal if you just write it or possess it. I know there are US-based websites that host such material under the label of "amateur fiction".
A ye olde selling catch. The SCOTUS does seem to think that as soon as anything is buyable or sellable it is immediately regulatable by congress.

[drgoodtrips]

Branching off from a different thread (http://www.discussionworldforum.com/forum/showthread.php?p=54665#post54665) in the News & Events section:

Here's the basic question: Under what circumstances should freedom of expression be curtailed?

Or put another way, what (or how) should people not be free to express?


Wow, that's a great question. In my life, I've worked out a pretty logical framework for my opinions -- this is generally what drives the libertarian-leaning "you can do whatever you want as long as it doesn't violate someone else's rights" philosophy I abide.

But, freedom of expression in this context has a subtlety that defies easy logical categorization. I can't really think of good guiding heuristics off the top of my head that would be fair and equitable. What I can offer is why I think that is, rather than any actual heuristics, which I'll have to think on.

Taken on its own, the notion of freedom of expression is a simple one. If two people are standing in a room, nothing one says can inflict real damage on the other person as a violation of generally established rights. One can call the other many mean names and hurt the other's feelings, but the other will not suffer actual bodily harm. In this context, I think each person's right to express himself trumps the other's right not to have his feelings hurt. This could even include threats, in my book, since the threats in such a situation amount to a lot of sound and fury without action. (I'm not necessarily advocating this by any stretch, since there are elements of coercion and other problems that come along with allowing threats, but I'm going to go on to make a point).

But, when you add a third person to the mix, life gets instantly more complicated. Now, if person A has some kind of powerful emotional hold over person B, person A can express himself to person B that he would like to see person C dead, and person B may well do that. One could argue, given what I said above about threats, that the only culpable party is person B, and I'd see the logic in that. But the point that I'm trying to make is that multiple person situations, involving combinations of speaker, listener, and subject, a new dynamic is created -- a dynamic in which planned or ad hoc collaborations translate into actual power games with stakes.

Because of this, I'm not sure there is a much better heuristic than "case by case". Those associations and collaborations are never going to be the same -- they might be variants on the same theme, but that isn't "the same". Take the iconic "fire in a crowded theater" example. The dynamic is that the speaker has real power to create visceral fear that puts people lives in danger by virtue of their own stupidity in moments of crisis. Now, what about a policeman yelling "freeze, police!" in a crowded room at an underground casino? Same exact dynamic, but different outcomes, different legalities, and different players in the power game. It needn't even be a policeman apprehending alleged criminals - yelling "fire" is just fine if you think there's a fire (or at least you can persuade others that you did). Then, you're a hero. Same exact expression in the same exact situation, with the only difference being strictly unknowable intent.

And, I think intent is exactly what makes this so hard to define heuristics for. With other legal considerations, we tend to consider outcomes more strongly, though not absolutely. Sure, if you shoot someone in a restaurant, there is some consideration given to intent (perhaps it was self defense, or a "crime of passion", or maybe just a deranged psychopath), but regardless, the guy is probably going to jail. Same sort of things tend to happen with property crimes or rapes versus date rapes, etc. The question isn't as much "should the perpetrator be considered a criminal" as "how harshly should the perpetrator be punished."

But, when it comes to expression, all you have, by definition, is manipulative power game intent. Real crimes are about injuring people whereas "crimes of expression" are about getting others to do your dirty work, either knowingly or unwittingly. This creates plausible deniability scenarios that are difficult to disprove, and has a more natural tendency to create outraged backlash and screaming of "there oughta be a LAW!" Dumbass three strike losers stick up liquor stores and spend most of their lives in prison, whereas enterprising sociopaths get others to do it for them and split the profits. Society gets far more outraged because the latter tends to get away with it -- violating the spirit of laws without violating the letter, beind "freedom of expression" until another heuristic allowance is made and people can no longer "express" what led to the "getting away with it" scenario.

And, I think that's entirely what's driven laws about speech curtailment so far. Not any kind of well thought out master plan, but lots and lots of cases of closing the barn door after the horses have fled congealing into juris-prudence. So, I don't really have a good answer to the question, but I'm going to be pondering it because this intrigues me.

[drgoodtrips]

The only exceptions are the ones that have been already listed: Child pornography and insurrection.

This leads me to an interesting point that I didn't touch on in my previous post. Namely, that laws curtailing freedom of expression are more likely to serve the interests of those with the power to do the curtailing. The interesting question to me is to what degree that is rationally justifiable. That might provide a potential heuristic - figuring out the per capita overall value to society of a person's right to freely express and weighing that against estimated damage of the expression. Callous, but perhaps a jumping off point.

[drgoodtrips]

One last thing that I'll point out is that the idea of tort violations, such as defamation, are a category unto themselves. But, at the same time, that is more about power games than anything else. If you slander someone alone in the forest, do you commit a (civil) crime? Of course not -- you're playing the game without table stakes.

It only gets interesting when the slander has a negative affect on someone's life. And the only reason it has a negative effect is because of the impact on other power games in which the slandered party is involved (job searches, social circles, courtship, etc). Person A publicly slanders person B, and this hurts person B because his deal with person C winds up falling through.