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Posts Tagged ‘Law’

Avoiding the dogma of legislating morality

Posted by Don McLenaghen on February 19, 2012

I have gotten a lot of feedback on my blog post and our segment last week about gender selection; and more to the point whether we should legislate morality.

Some people have expressed a view that we should legislate morality…because the laws skeptics would enact could help make the world a better place.

My response to this is to reiterate my opinion last week that I think it is bad to legislate morality. First, there is a reverse implication, if we create moral laws; that implies all laws are moral…something history has shown time and again not to be true.

That said, I don’t know if we are talking about the same thing and that is often the problem with philosophy. When the religious, conservative, or traditionalist use the word morality they mean metaphysically right…the ‘ought’ vs. the ‘is’. What is moral is ALWAYS moral; it transcends time and space. Moral is the word of god and is immutable. Often in the skeptic community we hear this with regards to libertarian or, dare I say it, socialist thinking. They hold to some precepts as foundational or a prior. Regardless of where you are coming from when something is moral, it is so irrespective of reality or the way things are.

Although the original meaning of ‘moralis’ simply meant ‘proper custom’; centuries of Christian influence and indoctrination (irrevocably) alter it to ‘right, good and virtuous!’

In a skeptical article pointed out by our loyal readers, Ian (thanks for your input). The article argues that not only can we legislate morality but that we must do so. Although he makes token appeals to evidence one of his main premises, and where I have issue, is like this which states – “if your conscience tells you some action may be causing great harm to society, you have both the right and, I believe, the duty to try to help or correct the situation, through both social and political means”. I think it is the appeal to ‘conscience’ that can be problematic. It lays moral laws on a foundation of belief and opinion and not fact or reason.

In the article, written by what I would guess is a libertarian, it shows why we should not think in terms of morality because we are too culturally indoctrinated to think of this dogmatically. The article states “we don’t limit or take away the right to free speech just because a person’s exercise of that right led to deaths”. The author praises Obama’s book “The audacity of hope” for saying “I propose that most law, either in spirit or letter, is nothing but encoded morality”; one must ask whose morality?

That is the heart of my criticism. Morality is, at least in our modern context, dogmatic; dogmatism (be it theological, political or skeptical) is innately wrong…regardless of the good it may incidentally do. Using the term morality, this necessarily must appeal to “belief” and the metaphysical, creating a field of competing equals. A Christian belief in ‘right or wrong’ based on the bible is no less sound than one based on the philosophy of ‘inalienable rights’; yet both may be invalid because they are assertions of belief not discovered knowledge.

This is why I don’t think we should legislate morality. So do I think law can make society better – yes; do I think we should use law to modify people’s behaviour to make society better – yes, but cautiously; do I think I should impose my moral belief on others through law – no, no matter how right I might think they are or how much incidental good they may do. What I would do is approach law like I do everything else; use the tool kit of skepticism (evidence, logic, reason and the scientific method) to create law ethically.

Okay, what do I mean ethically, is that not just a different way of saying morality? Yes and no. There is a conflation between ethics and morality however they are not really the same. Morality is a judgment on something; ethics is more a process…a WAY to do thing.

I believe that we should make laws that are consistent with empirical evidence…rational thinking…what I could call ethical thinking. I think ethical thinking is a method like the scientific method; it is not an answer but a method to derive answers. Ethical thinking, at least as a ‘good’ skeptic would apply it, should not be dogmatic, can evolve over time and point to truth but never claim to be it.

So laws created with ethical thinking are not moral or immoral; they are the best attempt to make society better. We can say that laws are ethical or unethical. For example, the article said free speech should be maintained even if it resulted in deaths. To be fair he did make an exception for yelling fire in a crowded theater as unethical because it ignores hate speech (for example).

I can say unethical, because he is dogmatic in his views of rights thus not willing to change based on evidence. It’s double dogmatic because he makes an exception for one ‘harm’ but not another, yet of the two, genocide seems the greater…his exclusion is arbitrary based on his BELIEFS!

This view of rights are asserted as being true; as in the US Declaration of Independence, a noble document but one that asserts that “We hold these truths to be self-evident, that all men are created equal”. Although I am sympathetic to these words, anything asserted is dogmatic and innately unethical because the King of England could equally assert “all men are subjects of the king”.

Here’s an example. When law is based in morality, we are stuck saying “pot smoking is immoral” forever because something is either moral or immoral…there is no kinda moral. By using the “M” word, you create dogmatic law.

It sounds self-serving, but really if 'reason' is meant authentically then...rationality to rule them all

Ethical thinking gets around this dilemma because its outcomes are not moral but the best answers so far…like science. So we can say in 1980 “pot smoking causes major harm to individuals and society” and yet as more research provides evidence it (may) not be harmful you; we can alter our law/statement “pot smoking causes little harm to self or state” without being inconstant or contradictory.

So now we return to our original question…should we legislate morality? No, I think doing so lowers ourselves to the same level of the theocrats we often decry. I do however think law can be used to make society and its citizen better if those laws are created ethically.

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The Pope has been charged with Crimes Against Humanity

Posted by Ethan Clow on February 25, 2011

Will the Pope End up Behind Bars?

I was shocked when I saw this story. Two German lawyers have filed charges against Pope Benedict XVI for crimes against humanity.

“Christian Sailer and Gert-Joachim Hetzel, based at Marktheidenfeld in the Pope’s home state of Bavaria, last week submitted a 16,500-word document to the prosecutor of the International Criminal Court at the Hague, Dr Luis Moreno Ocampo.” – quote from The Irish Times.

Specifically mentioned in the lawsuit is that Pope Benedict leads and is “responsible for the preservation and leadership of a worldwide totalitarian regime of coercion which subjugates its members with terrifying and health-endangering threats”

What health endangering threats do they mean? The article mentions forbidding condom use, even for the purpose of preventing HIV-AIDS infection. The article also mentions the creation of a world-wide conspiracy to cover up the sexual abuse of minors.

Also listed, is that the Catholic Church inducts members through a “compulsory act”, meaning baptism while still an infant. They claim the act is irreversible and enforced by excommunication.

The entire 16,500 word document can be read here.

The case has been submitted to the International Criminal Court (ICC) at the Hague, however; this is no guarantee the court will accept the case or even pursue any of the charges.

I checked the official website of the Vatican and Holy See and so far, nothing has been posted about these charges.

I also checked the website of the ICC and found nothing. The latest report, for the week of February 21st, didn’t mention any charges being laid against Benedict XVI, but that may not matter. Perhaps they’ll mention in next week’s report or it might not be the place where new cases are reported.

The legal document is filed under Article 7 of the ICC Rome Statute, which refers to Crimes Against Humanity, under the official document that includes issues of:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of

fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political,

racial, national, ethnic, cultural, religious, gender as defined in paragraph

3, or other grounds that are universally recognized as impermissible under

international law, in connection with any act referred to in this paragraph

or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

It sounds like those would easily fit the allegations the lawyers are placing at Pope Benedict XVI. I’m not sure I can agree with notions of compulsory membership that’s backed up with the threat of excommunication. Well, I mean, yes that is true, as an infant, you can’t refuse baptism, and if you believe in the church’s doctrine, excommunication is a very bad thing. However, based on what we know about the universe and (I assume) the nature of a court, one would have a hard time proving the existence of such a reality. Meaning, is the threat of excommunication even credible enough to be considered in court?

If I threatened someone with a magic curse, would that be grounds for a lawsuit? If I told someone to “watch out, or my unicorn will get you…” is that something to build a criminal case around?

Of course, I’m not a lawyer and I have no legal experience in anything like this. Perhaps they can make the case on the grounds of psychological suffering caused by threats of damnation and eternal suffering.

Can the charges be laid on the Pope, who is the Head-of-State of the Vatican and Holy See? In section IV of the document charging the Pope, it states:

” 1. According to Art. 27 of the ICC Statute, all persons are subject to the jurisdiction of the International Criminal Court, regardless of their official capacity. In particular, official capacity as a Head of State or Government … shall in no case exempt a person from criminal responsibility under this Statute …” (para. 1) “Immunities …, which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” (para. 2)” – Criminal Charges against Dr. Joseph Ratzinger, Pope of the Roman Catholic Church, page 47

The authors seem confident that the Pope will not be immune to such charges. Whether or not the ICC will agree, is another matter.

Regardless of what happens to this effort to find justice, it is a starting point. The Pope should not be allowed to sidestep international law because he lives in a palace and thinks he’s God’s wing man on Earth. I will be watching this case very closely.

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Best little Whore House….pt 2

Posted by Don McLenaghen on October 20, 2010

In part 1, we discussed the legality around the court challenge and took a sceptical look at the court ruling. Now we will look at the issue itself – should brothels be legalized.

Now there are two questions to be asked. IF prostitution is innately wrong (be it for moral, gender equality or other reasons) then the law should outlaw prostitution (a position I oppose but will save that argument for another day). It seems to be the current ‘will of the people’ see prostitution as just another trade/occupation; that it is not innately wrong – as such it is currently legal in Canada. Those who disagree with this are welcome to change the minds of Canadians (with rational empirical evidence of course) but this is a straw man argument against brothels themselves.

As a society, we accept prostitution as a valid and legal profession; that said we can agree that prostitution as currently practiced can lead to situation where workers are subjugated to violence, theft and coercion. The second question then is: how can we make the sex-trade safer for ‘participants’ (workers and clients) and ‘law abiding’? The striking down of these laws was a step in that direction.

As long as prostitution is legal (and even if it were not) there will be brothels…they are convenient for the client and desired among the workers (re: testimony). So, under which condition – legal vs. illegal – are brothels more likely to be positive environments or negative environment?

If there are illegal, there is NO opportunity for civil officials – be it law enforcement, medical or social – to interact with the workers to ensure their safety or security.

If they are illegal there are, by definition, run by criminals. The criminal element is by its nature more likely to abuse it workers…it is also likely to be involved in other ‘subsidiary’ illegal activities such as drug dealing. This is dangerous not only to the workers who will be more likely forced into conditions of dependency but also the harm to the community.

If they are illegal, the workers are discouraged from working in ‘safe’ neighbourhoods and self-incriminate if they contact authorities to report abuses. The communication law, also forces workers to work in isolates unsafe environments.

IF they are legal (AND regulated), civic officials can ensure safe work environments, provide outreach for those suffering from addiction and ensure the business operates both within the law and also pays its share of taxes.

IF they are legal, those operating the businesses will be business men (although I personal see the capitalism as a criminal, current society does not). They will have, as all legal entrepreneurs, an interest to uphold to the law, ensure they deal with their employees in a legal and fair way and provide an amiable environment for their cliental. They will be active positive members of the community, paying taxes and protecting their investments.

IF they are legal, those working in the brothels can call upon the resources of the state for protection from abuse, to help ensure a safe and respectful work environment and not worry if they require assistance from the authorities they will themselves be criminalized.

Now, there other issues involved in the sex trade – notable child prostitution and human trafficking (sex slaves). These issues will not be exacerbated but the legalization of brothels; if anything they will be hampered. If a brothel employs ‘honest’ prostitutes, they will be more likely to ‘whistle blow’ on brothels where illegal activity (like child or slave labour) is occurring. Making brothels legal will not make child-sex legal nor will it encourage human trafficking. In fact it will decrease the available avenues these activities will be able to operate as most sex work becomes above-board.

Fair dinkum, I am not saying that legalizing brothels will end violence to prostitutes…magically illuminate the criminal pimp…stop human trafficking or bring to an end child prostitution. What I am saying is by making this, like prostitution, legitimate you will shed a light on the business and drives out most of the negative elements…make it more likely that workers will get counselling for addiction and medical attention. There will be a selective pressure promoting safe brothels because the vast majority of their clients also want an safe and clean environment.

Ultimately, those who claim they worry about the safety of sex works are against these laws being struck down seem contradictory. They believe even if we legalize brothels some will still remain ‘underground’ and some will remain in the hands of violent and/or criminal pimps. Even if that were true, all I can say is I don’t understand how limiting the number of legit venues for prostitutes will make them safer? How is keeping brothels, ALL brothels in the hands of criminal gangs helping to make them safer? No, these laws needed to be struck down and a reasonable set of regulations put in their place. 

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Best little Whorehouse….pt 1

Posted by Don McLenaghen on October 20, 2010

Recently the Ontario Supreme Court struck down a law that criminalized prostitution…well actual the operation of brothels.

The applicants (the people challenging the law) were arguing the several laws violated their charter rights. The respondent (the government wanting to uphold the law) argued that it could limit rights based on Section 1 of the charter which states:

“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The court, in testing to see if the limitation is valid used what is called the “Oakes test”[1] (named after the court case that first stated this test). The first test holds that there must be a “pressing and substantial objective”, for example the desire to protect minorities from hate speech. IF the court agrees there is a suitable objective, the crown must then show proportionality.

Proportionality is actual three things; first the restriction in question must be related to achieving the objective. For example, preventing someone from driving because they shoplifter – there is no rational connection between the two. Second it must be as minimal as possible. For example, a rehabilitated (ie lawfully released from prison) child-sex offender could be prohibited from going into any public part, but that is a large limitation. A more minimal limitation would be prohibited from school areas; this achieved the laws objective while not being too onerous on the charter. Lastly, it must be proportional to the objective. For example, the objective of stopping Jaywalking (a minor offence) should have an equally minor limitation on rights; whereas stopping hate speech (a major offence) could support a greater limitation on rights.

Okay, now that you have a brief understanding of the Charter, let’s just say the court did not believe these laws deserved Sec. 1 protection and thus struck them down. The laws in question are:

1)   Anyone who is keeps a common bawdy-house (a place that is kept for the purpose of prostitution or the practice of acts of indecency) is guilty of an indictable offence. This extends to the “inmates” (ie workers), landlords and anyone found “without lawful excuse”…who are liable to summery conviction.

2)   Everyone who live wholly or in part of the avails of prostitution of another person

3)   Every person who, in a public place or in any place open to public view…attempts to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute…is punishable by a summary conviction.

These laws were, in a way, quite weird. I could understand if you we left with the impression prostitution itself was illegal in Canada…yet is it not! Prostitution itself is legal in Canada….they have just written the law so that you just can’t ACTUALLY practice it…well ‘above board’. Largely what is at the heart of this matter is brothels (bawdy-house )…should they be legal and above board or remain illegal and in the hands of criminals? Sorry, that loaded ways to state that….Lets rephrase it – should the law accept the legal existence of brothels?

Let’s take our sceptical minds and examine what the evidence presented to the courts.

In evidence, a number of former and current ‘workers’ stated that it was their experience that working ‘indoors’ was significantly safer that walking the streets. Most stated that they entered into the line of work without coercion…beyond the capitalist system…ie they needed the money. The State offered counter evidence but it focused mostly on ‘abusive pimps’ who did their violence both indoors and on the street.

This is what a sceptic would call anecdotal evidence…so not much weight either way…

Law enforcement witnesses stated that most of the harm centered around drug/alcohol abuse and organized crime. They saw the ‘workers’ as victims, both of the ‘pimps’ but also the johns; noting most prostitutes are poor while the johns come from “all walks of life”.  A re-occurring theme in the respondent’s (and most critiques of protection) submissions is the view sex trade workers are victims…of others, circumstance and substance addiction.

Law enforcement witnesses also expressed frustration at attempting to enforce these laws. In 2008 2377 charges were made for ‘brothels’ but only 131 convictions.

Under cross-examination, they all stated that streets were worse for violence then indoors. That indoor location could be set up to reduce the chances and level of violence.

Again, largely anecdotal, but it did collaborate the ‘claim’ that indoor work are saver than the street walking.

I ignored the convictions data, regardless whether a law is easily enforceable does not make it a good law. It’s hard to fly, does that make flight bad?

The Fraser Report in 1985 held that prostitutes should be allowed to conduct their business, in private, however they choose…including the disposition of their ‘fees for service’. They also stated that although there is a strong perception of a connection between prostitution and drug abuse, the evidence shows that actually only small part of the business and not typical. It also reiterated the fact street walking is far more dangerous.

They also reported, after extensive cross-country consultations with the public and no consensus on the issue.

The Fraser Report did recommend the removal of laws constraining ‘non-nuisance’ street solicitation; that laws against ‘living on the avail of prostitution’ be reworked so as to criminal abusive behaviour of pimps and not the actual financial relationship and to allow prostitutes to legally work ‘from home’.

In 1995 the Calgary/Winnipeg study reported that due to the criminalization of ‘communicating for the purposed of prostitution’, workers were forces to work in more remote and isolated area making them more vulnerable to violence. The laws do not suppress prostitution but simply drive it underground.

So, the research into the issue seems to point to the striking down of the laws in question…but what about ‘experimental evidence’. This can be found by looking at the effects in other countries.

Legalization in Holland, although debated, according to reports commissioned by the Dutch government, there has been moderate success in improving the working conditions of prostitutes; including, notably, a significant reduction of STDs.

In 2003 New Zealand legalized and regulated brothels….the result being significant reduction of violence, coercion  and theft in the ‘in-house’ workers…street workers still suffered though.

Germany passed its law in 2002 with the explicit purpose of removing prostitution as a “breeding ground for crime”

Nevada has several regulations to help protect women such as negotiating prices upfront with management listening in to ensure the proper behaviour of the client, the fee is paid in advance with the worker giving a opportunity to express reservations away from the client, each room has a panic button, and there is not ‘quick’ exit for johns and clients are not allowed to be ‘anonymous’ discouraging them doing harm and ensuring if they do they will be apprehended and prosecuted.

So, the rational trend seems to be getting sex trade works off the street reduces their risks…including violence, theft and coercion.

Bucking the trend, Sweden criminalized the buying of sex and pimping. “Act on the violence against Women” 1999. To understand why Sweden has gone against the grain we only need look at the acts name. It is not an ‘anti-prostitution’ act but an act intended to ‘defend women’… It seems to ignore the fact that a significant number of sex-trade workers are man.

Straw man – refuted a position by substituting a superficially similar yet unequivalent proposition and refuting it, without ever having actually refuted the original position.

There is this constant assertion that sex trade workers are ALWAYS victims (even when they are voluntary participants), that they need someone (usually the male minister of state) to protect them from other bad men…the case at hand was not prostitution itself but brothels. This is a straw man because it ignores the argument ‘are prostitutes safer in legal or illegal brothels’ and instead agues prostitution is innately wrong therefore prostitutes are safer in illegal brothels…I am stunned at the illogical.

“I think that the criminalization of everything around prostitution, except prostitution itself, means that sex workers are not positioned … to seek assistance should their lives be at risk.” Gender studies prof Darlene Jushka, U of R[2]

This argument strikes me as incredibly sexist and paternalistic. I know it is not a very skeptic critique but it’s not a very rational argument. With regards to the laws at hand, it is also irrelevant. IF you accept that prostitution is innately harmful, then you aim should not be to make brothels illegal but make prostitution itself illegal.

So that is how the law worked and the evidence the judges used to arrive at a decision that seems consistent with the skeptic mind. You can check out their full decision here[3].

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Limits of Free Speech

Posted by Don McLenaghen on March 1, 2010

Below is the talk i gave at UBC Feb 24 on the limits of free speech.

——————————————————————————–

Free Speech Lecture

Welcome and thank you for coming out, this discussion is about the limits of Free Speech and the first limit is I get to speak and no one else does. (dramatic pause) No, that was a joke. I hope to start things off by giving context to our discussion then open the floor up to for questions and comments.

Let’s start by asking what is free speech and why is there such a reverence for it. On the surface free speech is the ability of one to transmit their ideas to the public. Free speech does not, in a modern ‘western’ context, refer to private speech between individuals. However what qualifies as ‘ideas’ can be everything from political ideology, commercial advertisements, comedy…etc. It is in the transmission of ideas, and often the more controversial questioning of ideas, that lie at the heart at what we see as the value of free speech. John Stuart Mill said “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race [for] If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”[1]. We live in a culture of constant change, where stagnation is seen as detrimental to progress and only through the improvement of thought that society can evolve. Radio Free Thinker, as a skeptic show, is predicated on the idea that dogma should be challenged everywhere and that only through this free exchange of ideas that a healthy society can exist.

That said; it is also dogma (hmmm…) that free speech is the first among rights and should be complete and absolute. Therefore we shall focus on the need to limit speech, where those limits might be and how such limits might be enforced while preserving the spirit of and medicinal nature of free speech.

In the Canadian Charter of Right and Freedoms, we find section 2b which states that a fundamental freedom is that of thought, belief, opinion and expression. However, section 1 states that such rights have “reasonable limits” and can be limited when “demonstrably justified” to protect a “free and democratic society”. This arrangement or priorities shows a fundamental difference between Canada and the USA, in the US constitution (if not in practice) the individual is supreme and as such the only function of government is to protect the individual’s liberty. Canada, by contrast, has always been a more ‘communal’ nation and this “one for all and all for one” Victorian spirit can be seen in our founding anthem “Peace, order and good governance”. The legal opinion in Canada is that only through a healthy society can an individual prosper; turning the US idea on its head.

No, this is not a discussion about the merits of communalism vs. individualism, nor about the historical developments of nation states. We are concerned with free speech here and now; in the context of what is. There are limitations on free speech and these are manifest in three areas – legal, economic and social. In Canada, freedom of expression can be limited provided it is justifiable, that said limitation of proportional and ‘rationally connected to their aims’. For those who have taken any Canadian law, you will know this as the “Oaks test” after the case of the same name.

What is “Justifiable”? The principle here is that, given a specific manifestation of speech, the harm done to a ‘free and democratic society’ would be greater if the freedom were allowed unlimited than if it were limited. A classic example of this is violent pornography. The courts acknowledge that pornography is a protected form of expression however it also upholds legislation the limits violent porn because, in the opinion of the justices, there is a ‘reasonable apprehension of harm’.

What is ‘rationally connected to their aims’? This simply means that if I wanted to prevent the sale of violent porn, any limitation of freedom must be connected to that aim. I could not revoke the drivers licence of those who sell violent porn – it may be punitive but has no rational connection to the aim of ‘preventing the sale of violent porn’.

What is proportional? This means that any freedom must be limited as minimally as possible to achieve its state aims. So a ban on the sale of all porn, so as to prevent the sale of violent porn, is a larger restriction of freedom than is needed to prevent the stated aim when a simple ban on violent porn would be sufficient.

Now this limitation is important when it comes to Canada’s hate speech laws. Canada is a multicultural nation; as such ‘identity’ groups are a fundamental aspect of our cultural landscape. Even those, notably libertarians and Marxists, who do not believe in identity groups, are forced to acknowledge that both victims and victimisers believe in these groups and are willing to use them to perpetrate hatred and violence. Now, in the case of holocaust denial, overt racism or homophobic violence, it is a general consensus that these forms of speech should be limited.

However, there are issues with this; such as at what point does my discussion of genetic distinctions between races cross over into racism? There are other issues, where do we draw the line about what is hate speech? Does Leviticus constitute hate speech? Do comments about the Israeli occupation of Palestine constitute anti-Semitism? The courts have given four exceptions or guides to distinguish ‘hate’ from non-hate speech even when such comments might be construed as hate. These defences are ‘it’s true’, ‘good faith opinion on a religious matter’, ‘in the public interest’ and ‘good faith attempts to point out hate speech’. So Leviticus is off the hook because we have a, in my opinion a destructive, special place for religion…comments on Israel MAY be okay IF true…

Okay, so that’s the law. There are two other ways that our freedom of speech is limited. Economically; this means that someone like Jim Shaw (who own Shaw Cable and just purchase CanWest/Global) who has both money and access can have more speech than I have. However, this leads into the difference between positive and negative rights. Legally, and ideologically, our society tend to side with negative rights over positive rights. This means a right is simply the absence of hindrance…i.e. no one is preventing me from running an ad on CBC. Positive rights means the presence of opportunity…i.e. I am given free time on CBC to speak. For those who are aware of the resent Supreme Court decision in the US will know this a huge topic south of boarder (and maybe one that should be bigger here as well).

The other limitation is that preached by people like Foucault. This is the ability for society, or ourselves, to censor what is obsessively legal speech. A great example of this was during the Olympics. There was reported that the head of RCMP security for the Olympics said that there would be “free speech” zones, and then the VPD said people could demonstrate anywhere but there would be designated areas for “safe”[2] protesting. Other talk about prosecution for ‘anti-Olympic’ posters and unprecedented enhanced security in the GVRD lead to a form of social self-censorship; where a great number of people just did not want to chance a run-in with the authorities. As a radio personality, I acknowledge that there have been a number of times I have thought twice about saying a thing for fear of legal or social outrage that may hinder Radio Free Thinker or cause personal suffering.

This social censorship also related to our earlier discussion of positive rights. Currently there is a legal debate going on about the loss of ‘club status’ of an anti-abortion group at the University of Victoria, of another club at the University of Western Ontario that has been ‘decertified’ for its apparent pro-Palestinian or anti-Semitic stance, depending on who you are speaking to. The UVic case is not so much  a question of free speech, for the club is allowed to organize if it wish, but a question of equality because is being treated differently than other ‘groups’ by being denied club status.

The heart of this case shines a light also on where or how we define hate speech. Opponents to the club point out that its (or similar groups) posters can be graphically obscene and the fundamental stance of the group is to imply the women who have or even advocate abortion are “bad” people who should be shunned. Pro-choice groups point out that anti-abortionist groups have violently harassed and harmed those who advocate, seek and/or provide abortions. The anti-abortion club claims its posters are tasteful; that it has not directly been involved in harassment and that it merely represents a difference of opinion on an issue that they should have much freedom to express as those who are pro-choice.

One last thought before we open the floor. Do universities, and by extension its students and faculty, have a great ‘right’ to free speech than those ‘off campus’? Do universities have a special and protected role in society to be a ‘bastion’ of speech irrespective of its content, impact or perspective provided it is done to forward academic education/research/growth?

ON that note…I will open the floor to thoughts, questions and comments….


[1] p. 24, Mill, J.S., Three Essays: On Liberty; Representative Government; The Subjection of Women. Oxford University Press, 1975, ISBN 0-19-283013-9

[2] Staff Sgt. Mike Cote, “Olympic protest zones don’t exist VPD says” (http://www.straight.com/article-281369/vancouver/olympic-protest-zones-dont-exist-vpd-says)

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