The pitcher has got only a ball. I've got a bat. So the percentage of weapons is in my favor and I let the fellow with the ball do the fretting. - Hank Aaron
Canada has rejected key components of its great Anglo-Saxon common law heritage by embracing the eggshell psyche and likely harm. Worse, our northern neighbor has embraced eggshell sensibility and mere potential harm. They have created a right not to be offended and a duty not to create the potential for harm: a twinned duty and right that is indefinable and unbounded.
Although ignorance of the law may be no excuse, a must be knowable in order to be just. This is a law whose trespass cannot be defined and cannot be reasonably known before the fact. From time to time, a speaker may be certain that he is offensive, but never that he is inoffensive. This uncertainty arises from the fact that the offended party alone can determine whether or not his sensibilities have been offended. No doctor can testify as to injuries. No contractor can testify as to replacement costs. Only the victim/plaintiff’s own claim is evidence of injury. There is no objective standard, though Canadian courts will go through the motions of pretending that objectivity has been established. The mere existence of the law argues against the equality and predictability of the Canadian system of justice. In the United States a potential defendant can fairly readily determine if he is making threats, inciting imminent violence, of committing libel/slander, and he can be pretty damn certain if he has a defense in the truth or in the freedom of expression. In Canada, by contrast, a potential defendant can never be certain no one will take offense, nor that no one will be prompted by his words to regard another with less-than-loving eyes. He has no defense beyond the judicial equivalent of “nu-uhhh!” God—or Canada—forbid that someone criticize Aum Shinrikyo as a fanatical and murderous cult, or use similar terms about Jim Jones’ People’s Temple. Someone may be offended. Hatred may be incited. And not all those cultists, ah, religious adherents were involved in the murderous activities. Guilty! Guilty! Guilty!
The individual laws not only fail to cabin the harm individuals may claim, but fails to cabin which individuals and groups my claim the harm (or potential harm) as well. So, one person who has read the article may be offended, but an entire community that has only heard reports of it, and entire ethnic populations that merely suffer a potential change in attitude from their non-co-ethnic neighbors also become victim/plaintiffs.
The most dangerous aspect of the boundlessness of the subjective and preventative nature of the Canadian restrictions on speech is that the principle, once established, is all too readily applied to make the government the aggrieved victim to be protected. By definition, the government represents all the people, and serves all the people, and protects all the people. Therefore, speech that potentially interferes with the perceived legitimacy of the government and the attitude of the citizenry to it impedes the effectiveness of the government poses a potential harm to all the people. Instead of the old saw “Relax, we’re the government; we’re here to help you,” the new joke will be “We’re the government; Shush!”, though no one will dare to say it aloud.
Don’t think for a moment that our own government would not have done the same thing after the 9-11 terrorist attacks if it could have. After all, the Bush administration and its allies did not hesitate to attack critics of its policies as the allies-whether knowing or mere dupes—of terrorism. When there is no room for opinion in the marketplace of ideas, and when truth is no defense, no one is free but the government.
There is hope, though. Who would have thought that the reactionary 1st Amendment decisions of the World War I years would have planted the seeds of modern United States civil liberties jurisprudence? Exposing the fallacies and absurdities underpinning offensive speech is much more effective than attempting to judicially smother it, even if much more annoying and exasperating. In my lifetime, the United States has done much to make me wince with embarrassment, and much to make me beam with pride. The messy, inconsistent, imperfect, annoying First Amendment jurisprudence falls into the latter category (usually). If we can defend our tradition of free speech, the world will come to look to the United States not as the lone super power, not as the world’s cop, not as the global bully, but as the winnower of truths, the chaotic marketplace of concepts, and as the tantalizing proving ground ideas unavailable anywhere else.
It is difficult to improve upon an Ipsit-Dixit response.
I hadn't connected the 1st Amendment to the "eggshell psyche" from Tort, but the connection fits the article's description of free speech in Canada. Thinking back to our 1st Amendment coursework, I think this was another of the many threads Mikochik tied the course together with. Good catch.
Ultimately, freedom expression in America is most harmed by private action rather than state action. Stifled thoughts and speech exist as much in the bastions of Liberalism like our Universities as in the Bible-belt.
There is an exception that is worth mentioning: Employment Discrimination Law.
If my one course is a true indicator, fear that an employee can capitalize on the perception of sanctioned insensitivity, under the rubric of “hostile workplace,” has management of public and private enterprise running scared. For those of us in the public sector, this is no great revelation- it fits our experience.
I am heartened to think though that, as the diversity of the workplace increases, the validity of those fears will decrease. Our Employment Discrimination Prof suggested that fewer and fewer hostile workplace claims were making it to trial and that the settlements were for less and less money over time. It may be that management is cutting off the claims sooner but I like to think that this necessary foray into state-sanctioned censorship has run its course.
3 comments:
Canada has rejected key components of its great Anglo-Saxon common law heritage by embracing the eggshell psyche and likely harm. Worse, our northern neighbor has embraced eggshell sensibility and mere potential harm. They have created a right not to be offended and a duty not to create the potential for harm: a twinned duty and right that is indefinable and unbounded.
Although ignorance of the law may be no excuse, a must be knowable in order to be just. This is a law whose trespass cannot be defined and cannot be reasonably known before the fact. From time to time, a speaker may be certain that he is offensive, but never that he is inoffensive. This uncertainty arises from the fact that the offended party alone can determine whether or not his sensibilities have been offended. No doctor can testify as to injuries. No contractor can testify as to replacement costs. Only the victim/plaintiff’s own claim is evidence of injury. There is no objective standard, though Canadian courts will go through the motions of pretending that objectivity has been established. The mere existence of the law argues against the equality and predictability of the Canadian system of justice. In the United States a potential defendant can fairly readily determine if he is making threats, inciting imminent violence, of committing libel/slander, and he can be pretty damn certain if he has a defense in the truth or in the freedom of expression. In Canada, by contrast, a potential defendant can never be certain no one will take offense, nor that no one will be prompted by his words to regard another with less-than-loving eyes. He has no defense beyond the judicial equivalent of “nu-uhhh!” God—or Canada—forbid that someone criticize Aum Shinrikyo as a fanatical and murderous cult, or use similar terms about Jim Jones’ People’s Temple. Someone may be offended. Hatred may be incited. And not all those cultists, ah, religious adherents were involved in the murderous activities. Guilty! Guilty! Guilty!
The individual laws not only fail to cabin the harm individuals may claim, but fails to cabin which individuals and groups my claim the harm (or potential harm) as well. So, one person who has read the article may be offended, but an entire community that has only heard reports of it, and entire ethnic populations that merely suffer a potential change in attitude from their non-co-ethnic neighbors also become victim/plaintiffs.
The most dangerous aspect of the boundlessness of the subjective and preventative nature of the Canadian restrictions on speech is that the principle, once established, is all too readily applied to make the government the aggrieved victim to be protected. By definition, the government represents all the people, and serves all the people, and protects all the people. Therefore, speech that potentially interferes with the perceived legitimacy of the government and the attitude of the citizenry to it impedes the effectiveness of the government poses a potential harm to all the people. Instead of the old saw “Relax, we’re the government; we’re here to help you,” the new joke will be “We’re the government; Shush!”, though no one will dare to say it aloud.
Don’t think for a moment that our own government would not have done the same thing after the 9-11 terrorist attacks if it could have. After all, the Bush administration and its allies did not hesitate to attack critics of its policies as the allies-whether knowing or mere dupes—of terrorism. When there is no room for opinion in the marketplace of ideas, and when truth is no defense, no one is free but the government.
There is hope, though. Who would have thought that the reactionary 1st Amendment decisions of the World War I years would have planted the seeds of modern United States civil liberties jurisprudence? Exposing the fallacies and absurdities underpinning offensive speech is much more effective than attempting to judicially smother it, even if much more annoying and exasperating. In my lifetime, the United States has done much to make me wince with embarrassment, and much to make me beam with pride. The messy, inconsistent, imperfect, annoying First Amendment jurisprudence falls into the latter category (usually). If we can defend our tradition of free speech, the world will come to look to the United States not as the lone super power, not as the world’s cop, not as the global bully, but as the winnower of truths, the chaotic marketplace of concepts, and as the tantalizing proving ground ideas unavailable anywhere else.
It is difficult to improve upon an Ipsit-Dixit response.
I hadn't connected the 1st Amendment to the "eggshell psyche" from Tort, but the connection fits the article's description of free speech in Canada. Thinking back to our 1st Amendment coursework, I think this was another of the many threads Mikochik tied the course together with. Good catch.
Ultimately, freedom expression in America is most harmed by private action rather than state action. Stifled thoughts and speech exist as much in the bastions of Liberalism like our Universities as in the Bible-belt.
There is an exception that is worth mentioning: Employment Discrimination Law.
If my one course is a true indicator, fear that an employee can capitalize on the perception of sanctioned insensitivity, under the rubric of “hostile workplace,” has management of public and private enterprise running scared. For those of us in the public sector, this is no great revelation- it fits our experience.
I am heartened to think though that, as the diversity of the workplace increases, the validity of those fears will decrease. Our Employment Discrimination Prof suggested that fewer and fewer hostile workplace claims were making it to trial and that the settlements were for less and less money over time. It may be that management is cutting off the claims sooner but I like to think that this necessary foray into state-sanctioned censorship has run its course.
Post a Comment