This problem arises when ideology meets reality: it gets messy, and one must be able to differentiate rare contexts in which there may be exceptions. Picture this: your kid goes to a park or a friend's house, and one of their parents gives them access to a graphic novel that depicts sexual acts which are age-inappropriate, considering they haven't even reached puberty. Then this individual tells them some people are born in the wrong bodies if one "feels" more closely aligned to those of the opposite gender or perhaps somewhere in between based on their preference for stereotypes most closely aligned with that gender like "girls play with barbies and boys play with trucks" then perhaps they ARE that gender. Any parent would be rightly concerned with another adult exposing their child to materials that are not only inappropriate but without their knowledge or consent. These issues are hardly a matter of "free speech," as some may be quick to assume. Instead, these debates are about the prioritization of adult civil liberties above the laws established to protect minor children and parents' constitutional rights (14th Amendment.)
A federal statute and additional state statutes prohibit the distribution of obscene and pornographic content to minors. Even more concerningly, these debates also present citizens with another dilemma which implies that tax-funded institutions such as public schools have the right to infringe on a parent's rights AND are not expected to follow the same laws which govern their citizens. I encourage those to view the books Ron DeSantis is removing from schools, which ironically should not legally be there in the first place.
Free speech shouldn't be a political position -- it should be a fundamental value. It's the source of ideas.
It should go without saying that this doesn't give anyone license to lie maliciously. What we need is latitude to honestly get things wrong while acting and thinking in good faith so we can work out better ideas and better solutions.
Would I be correct in assuming that there is little in his argument which speaks directly to what may be a more ‘modern’ concept - hate speech ? And how would his argument deal with incitement to violence ? I recognize that the crux of his argument addresses what governments or authorities may undertake to control the expression of views they deem harmful or wrong. It strikes me that, as with almost everything in life, the challenge is determining where to draw a line to establish ‘reasonable’ limits to rights and responsibilities. Thanks once again for a stimulating piece that brings history to bear on present issues and discussions.
Incidentally, I should not an interesting and important distinction between Canadian and American law. The First Amendment doesn't contain any "within reasonable limits" language, so if something is protected, it's protected, period. This led the USSC (predictably) to develop a narrow approach to define what is and isn't speech for the purposes of amendment. The Canadian Charter of course starts with a "within reasonable limits" provision, so (equally predictably) the Canadian Supreme Court tended to be much more expansive in saying that something is protected expression -- because it could then go on to say, "however, this particular restriction is justified." Hence, US law tends to be much narrower in what it admits as speech but more sterner in protecting what it decides is speech whereas Canadian law is much more expansive in what it brings under the umbrella but much more willing to permit a restriction on it.
There have always been limits accepted by even the most ardent supporter of free speech. Incitement to violence is the most obvious and widely accepted, so while I don't know Borah's fuller thought on free speech I'm confident he would have no difficulty with forbidding incitement. "Hate speech" is another matter. The principal problem with how it's used in public discourse -- I speak as someone who has been following the issue since law school thirty years ago -- is that people use "hate speech" as if it what qualifies is clear and uncontested which is absolutely untrue. Hence, people routinely say "that's not free speech, it's hate speech" as if that were a statement that means something more than "I find it hateful." Canada's hate speech law is a good illustration: It is actually very narrowly crafted and applied but people routinely insist that this or that speech they don't like, and find "hateful" is "hate speech" that should be prosecuted. Hence, when someone says "do you think hate speech should be forbidden?" I say "you haven't asked a meaningful question. Come back to me with a precise proposal and I'll answer." Incidentally, "hate speech" in the loose sense is not at all a modern concept. The fact that some people are motivated by hateful sentiments and use hateful words to encourage hate toward others is, unfortunately, a human reality since the dawn of time.
On behalf of all 39 million of us (I was deputized) thanks for the kind words.
Yeah, I was surprised when I looked up our restrictions in the 90s and found how tightly-circumscribed they are. If you aren't specifically calling for violence, indeed for deadly violence, the court has to let you go - and in many decades now, there have been very few convictions that were upheld and actually caused sentences:
...the word "sentenced" appears twice; another guy was deported. A few did community service; and, one must admit, all suffered losses of thousands to legal fees. But that's about it, in over 30 years. (We agonized, for millions of dollars, at the Supreme Court level, over whether "Gypsies" was indisputably an insult to the Roma people. Very fine parsing.)
NB: Canada's legislation on this was strongly affected by recent events in Rwanda at the time, see the Don Cheadle movie. It was about DISINFORMATION, to just highlight that word: the radio programs that again and again and again dehumanized the Tutsi and called for their slaughter. That repetition makes "truth" just as in Brave New World. It was very much speech legislation that responded to the technologies that long post-date our other free-speech laws: radio didn't exist back then, much less Fox News. And in Rwanda, radio was enough, the "Hutu Fox News" if you will.
For a writer who claims to eschew partisanship in his writings your meager justification for praising a long-dead Republican senator was a reference to Gov. DeSantis, who has supported a law to require transparency from school boards in the selection of classroom resources. You made no mention of the much larger donkey in the room partially revealed by the Twitter files that showed the Biden Administration pressuring Big Tech to silence individuals, even prominent scientists and physicians, whose views were in opposition to the Administration. And not a word about the Biden's Administration's attempt to establish a 'Ministry of Truth' as an official government agency. It's your blog and you can be as partisan as you wish, but don't insult us with claims to the contrary.
I said at the start that I am breaking my rule in offering a (brief) comment on an active political controversy. I'm not sure how much clearer I can be.
As to why I specifically mention Ron DeSantis, I had thought it was obvious but judging by your comments you have missed the point. So I'll spell it out: DeSantis has taken many steps to effectively push any mention of critical race theory (CRT) out of any classroom in the state of Florida. Whatever you think of CRT or that policy, surely you -- or anyone -- must agree there is a remarkable parallel between that and Tennessee banning the teaching of evolution in the classroom. Which prompted the Scopes Monkey Trial. Which prompted Borah's essay.
The Scopes trial was indeed a First Amendment issue. But the issue at hand was not free speech but separation of church and state. Public schools are government institutions. Teachers in such schools are agents of the state. As such, they are subject to the restrictions on government imposed by the Constitution.
In addition, control of curricula in government schools has forever been a prerogative of government -- see, e.g., Common Core. But today's threats to freedom within schools are primarily to the freedom of students to deviate from progressive orthodoxy without being punished by teachers or administrators, not to the supposed freedom of state employee teachers to say whatever they want in the classroom.
Ultimately, the only solution to the conflict between teachers' desire to teach what they want, taxpayers' right to have a say in how their dollars are being spent, parents' right to have their children instructed in a way consistent with their values, and the freedom of students to dissent is: Abolish government schools.
Ideas and perceptions through history remind me of the biological trials and errors that make evolution so fascinating and successful on occasion. Perhaps for us humans seeing admission of erring as the ultimate sign of defeat is the main obstacle.
"Better an uproar than a whisper..." (Chef's Kiss)
Exactly. I got chills when I read that.
This problem arises when ideology meets reality: it gets messy, and one must be able to differentiate rare contexts in which there may be exceptions. Picture this: your kid goes to a park or a friend's house, and one of their parents gives them access to a graphic novel that depicts sexual acts which are age-inappropriate, considering they haven't even reached puberty. Then this individual tells them some people are born in the wrong bodies if one "feels" more closely aligned to those of the opposite gender or perhaps somewhere in between based on their preference for stereotypes most closely aligned with that gender like "girls play with barbies and boys play with trucks" then perhaps they ARE that gender. Any parent would be rightly concerned with another adult exposing their child to materials that are not only inappropriate but without their knowledge or consent. These issues are hardly a matter of "free speech," as some may be quick to assume. Instead, these debates are about the prioritization of adult civil liberties above the laws established to protect minor children and parents' constitutional rights (14th Amendment.)
A federal statute and additional state statutes prohibit the distribution of obscene and pornographic content to minors. Even more concerningly, these debates also present citizens with another dilemma which implies that tax-funded institutions such as public schools have the right to infringe on a parent's rights AND are not expected to follow the same laws which govern their citizens. I encourage those to view the books Ron DeSantis is removing from schools, which ironically should not legally be there in the first place.
Free speech shouldn't be a political position -- it should be a fundamental value. It's the source of ideas.
It should go without saying that this doesn't give anyone license to lie maliciously. What we need is latitude to honestly get things wrong while acting and thinking in good faith so we can work out better ideas and better solutions.
Would I be correct in assuming that there is little in his argument which speaks directly to what may be a more ‘modern’ concept - hate speech ? And how would his argument deal with incitement to violence ? I recognize that the crux of his argument addresses what governments or authorities may undertake to control the expression of views they deem harmful or wrong. It strikes me that, as with almost everything in life, the challenge is determining where to draw a line to establish ‘reasonable’ limits to rights and responsibilities. Thanks once again for a stimulating piece that brings history to bear on present issues and discussions.
Incidentally, I should not an interesting and important distinction between Canadian and American law. The First Amendment doesn't contain any "within reasonable limits" language, so if something is protected, it's protected, period. This led the USSC (predictably) to develop a narrow approach to define what is and isn't speech for the purposes of amendment. The Canadian Charter of course starts with a "within reasonable limits" provision, so (equally predictably) the Canadian Supreme Court tended to be much more expansive in saying that something is protected expression -- because it could then go on to say, "however, this particular restriction is justified." Hence, US law tends to be much narrower in what it admits as speech but more sterner in protecting what it decides is speech whereas Canadian law is much more expansive in what it brings under the umbrella but much more willing to permit a restriction on it.
I'm extremely comfortable with reading that as "Canada is more moderate, more sensible, and, generally...better".
:)
There have always been limits accepted by even the most ardent supporter of free speech. Incitement to violence is the most obvious and widely accepted, so while I don't know Borah's fuller thought on free speech I'm confident he would have no difficulty with forbidding incitement. "Hate speech" is another matter. The principal problem with how it's used in public discourse -- I speak as someone who has been following the issue since law school thirty years ago -- is that people use "hate speech" as if it what qualifies is clear and uncontested which is absolutely untrue. Hence, people routinely say "that's not free speech, it's hate speech" as if that were a statement that means something more than "I find it hateful." Canada's hate speech law is a good illustration: It is actually very narrowly crafted and applied but people routinely insist that this or that speech they don't like, and find "hateful" is "hate speech" that should be prosecuted. Hence, when someone says "do you think hate speech should be forbidden?" I say "you haven't asked a meaningful question. Come back to me with a precise proposal and I'll answer." Incidentally, "hate speech" in the loose sense is not at all a modern concept. The fact that some people are motivated by hateful sentiments and use hateful words to encourage hate toward others is, unfortunately, a human reality since the dawn of time.
On behalf of all 39 million of us (I was deputized) thanks for the kind words.
Yeah, I was surprised when I looked up our restrictions in the 90s and found how tightly-circumscribed they are. If you aren't specifically calling for violence, indeed for deadly violence, the court has to let you go - and in many decades now, there have been very few convictions that were upheld and actually caused sentences:
https://en.wikipedia.org/wiki/Hate_speech_laws_in_Canada
...the word "sentenced" appears twice; another guy was deported. A few did community service; and, one must admit, all suffered losses of thousands to legal fees. But that's about it, in over 30 years. (We agonized, for millions of dollars, at the Supreme Court level, over whether "Gypsies" was indisputably an insult to the Roma people. Very fine parsing.)
NB: Canada's legislation on this was strongly affected by recent events in Rwanda at the time, see the Don Cheadle movie. It was about DISINFORMATION, to just highlight that word: the radio programs that again and again and again dehumanized the Tutsi and called for their slaughter. That repetition makes "truth" just as in Brave New World. It was very much speech legislation that responded to the technologies that long post-date our other free-speech laws: radio didn't exist back then, much less Fox News. And in Rwanda, radio was enough, the "Hutu Fox News" if you will.
For a writer who claims to eschew partisanship in his writings your meager justification for praising a long-dead Republican senator was a reference to Gov. DeSantis, who has supported a law to require transparency from school boards in the selection of classroom resources. You made no mention of the much larger donkey in the room partially revealed by the Twitter files that showed the Biden Administration pressuring Big Tech to silence individuals, even prominent scientists and physicians, whose views were in opposition to the Administration. And not a word about the Biden's Administration's attempt to establish a 'Ministry of Truth' as an official government agency. It's your blog and you can be as partisan as you wish, but don't insult us with claims to the contrary.
I said at the start that I am breaking my rule in offering a (brief) comment on an active political controversy. I'm not sure how much clearer I can be.
As to why I specifically mention Ron DeSantis, I had thought it was obvious but judging by your comments you have missed the point. So I'll spell it out: DeSantis has taken many steps to effectively push any mention of critical race theory (CRT) out of any classroom in the state of Florida. Whatever you think of CRT or that policy, surely you -- or anyone -- must agree there is a remarkable parallel between that and Tennessee banning the teaching of evolution in the classroom. Which prompted the Scopes Monkey Trial. Which prompted Borah's essay.
The Scopes trial was indeed a First Amendment issue. But the issue at hand was not free speech but separation of church and state. Public schools are government institutions. Teachers in such schools are agents of the state. As such, they are subject to the restrictions on government imposed by the Constitution.
In addition, control of curricula in government schools has forever been a prerogative of government -- see, e.g., Common Core. But today's threats to freedom within schools are primarily to the freedom of students to deviate from progressive orthodoxy without being punished by teachers or administrators, not to the supposed freedom of state employee teachers to say whatever they want in the classroom.
Ultimately, the only solution to the conflict between teachers' desire to teach what they want, taxpayers' right to have a say in how their dollars are being spent, parents' right to have their children instructed in a way consistent with their values, and the freedom of students to dissent is: Abolish government schools.
Ideas and perceptions through history remind me of the biological trials and errors that make evolution so fascinating and successful on occasion. Perhaps for us humans seeing admission of erring as the ultimate sign of defeat is the main obstacle.