Stomping on free speech

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Stomping on free speech[/u]
John Leo
April 12, 2004

'Canada is a pleasantly authoritarian country," Alan Borovoy, general counsel of the Canadian Civil Liberties Association, said a few years ago. An example of what he means is Bill C-250, a repressive, anti-free-speech measure that is on the brink of becoming law in Canada. It would add "sexual orientation" to the Canadian hate propaganda law, thus making public criticism of homosexuality a crime. It is sometimes called the "Bible as Hate Literature" bill, or simply "the chill bill." It could ban publicly expressed opposition to gay marriage or any other political goal of gay groups. The bill has a loophole for religious opposition to homosexuality, but few scholars think it will offer protection, given the strength of the gay lobby and the trend toward censorship in Canada. Law Prof. David Bernstein, in his new book "You Can't Say That!" wrote that "it has apparently become illegal in Canada to advocate traditional Christian opposition to homosexual sex." Or traditional Jewish or Muslim opposition, too.

Since Canada has no First Amendment, anti-bias laws generally trump free speech and freedom of religion. A recent flurry of cases has mostly gone against free expression. The Saskatchewan Human Rights Commission ruled that a newspaper ad listing biblical passages that oppose homosexuality was a human-rights offense. The commission ordered the paper and Hugh Owens, the man who placed the ad, to pay $1,500 each to three gay men who objected to it. In another case, a British Columbia court upheld the one-month suspension, without pay, of a high school teacher who wrote letters to a local paper arguing that homosexuality is not a fixed orientation but a condition that can and should be treated. The teacher, Chris Kempling, was not accused of discrimination, merely of expressing thoughts that the state defines as improper.

That anti-free-speech principle, social conservatives argue, will become explicit national policy under C-250, with criminal penalties attached. Religious groups say it would become risky for them to teach certain biblical passages. If a student says something that irritates homosexuals in class, the student's parents might be held legally liable. Some Canadians worry that, for instance, discussions about gay men giving blood will be suppressed. Robert Spitzer of Columbia University, a longtime supporter of gay rights and an important figure in the American Psychiatric Association, published a study finding that many gays can become heterosexual. Would that study be banned under C-250 as hate speech? And since C-250 does not mention homosexuality but focuses broadly on "sexual orientation," Canada's freewheeling judiciary may explicitly extend protection to many "sexual minorities." Pedophilia and sadism are among the conditions listed by the American Psychiatric Association under "sexual orientation."

Church foes? The churches seem to be the key target of C-250. One of Canada's gay senators denounced "ecclesiastical dictators" and wrote to a critic, "You people are sick. God should strike you dead." In 1998, lesbian lawyer Barbara Finlay of British Columbia said "the legal struggle for queer rights will one day be a struggle between freedom of religion versus sexual orientation."

It's starting to be defined just that way in other countries. In Sweden, sermons are explicitly covered by an anti-hate-speech law passed to protect homosexuals. The Swedish chancellor of justice said any reference to the Bible's stating that homosexuality is sinful might be a criminal offense, and a Pentecostal minister is already facing charges. In Britain, police investigated Anglican Bishop Peter Forster of Chester after he told a local paper: "Some people who are primarily homosexual can reorientate themselves. I would encourage them to consider that as an option." Police sent a copy of his remarks to prosecutors, but the case was dropped. In Ireland last August, the Irish Council for Civil Liberties warned that clergy who circulated a Vatican statement opposing gay marriages could face prosecution under incitement-to-hatred legislation.

In the United States, the dominance of anti-bias laws and rules limiting free speech and free exercise of religion is clear on campuses, not so clear in the real world. Still, First Amendment arguments are losing ground to antidiscrimination laws in many areas, and once stalwart free-speech groups, like the American Civil Liberties Union, have mostly gone over to the other side. An unlikely split has occurred. In the interest of fighting bias, liberal groups reliably promote laws that limit First Amendment principles. The best defenders of free speech and freedom of religion are no longer on the left. They are found on the right.

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Two words

PATRIOT Act!

http://www.aclu.org

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Quote:

ti-bias laws and rules limiting free speech and free exercise of religion is clear on campuses, not so clear in the real world. Still, First Amendment arguments are losing ground to antidiscrimination laws in many areas, and once stalwart free-speech groups, like the American Civil Liberties Union, have mostly gone over to the other side. An unlikely split has occurred. In the interest of fighting bias, liberal groups reliably promote laws that limit First Amendment principles.

I would like to see examples of what the author means by this. The ACLU seems to maintain a spotless record on free speech cases.

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Here's one example:

On Aug. 2, 1999, the Supreme Court of California, in a 4 to 3 decision, placed a prior restraint on speech, including a list of specifically forbidden words. This decision was abetted and encouraged by the American Civil Liberties Union of Northern California -- and supported by ACLU headquarters in New York. In Aguilar v. Avis Rent A Car System, the court upheld an award of $135,000 in damages to Latino employees of Avis who had charged employment discrimination in the form of persistent racial epithets and insults by a supervisor, John Lawrence.

But the court went beyond confirming this creation of a hostile work environment that caused employment discrimination. It imposed a prior restraint against such language in the workplace.

Lawyers specializing in such cases say that for the first time a state supreme court has ruled that it is constitutional to impose such a prior restraint injunction, despite the First Amendment and despite free-speech protections in California's constitution that are stronger than those of the First Amendment . . .

. . . the ACLU of Northern California submitted an amicus brief in enthusiastic support of this prior restraint of speech, including a classic use of Orwellian newspeak: "The narrow injunction barring racial epithets issued in this case enforces anti-discrimination laws without infringing free speech." The right "to equal treatment at work," the ACLU continued, permits "some limits on the unrestrained speech of bigots in the workplace."

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foxfyre

Please link your sources.

I'll note that the original piece posted by fedral is from an organization which states that it falls under the umbrella of the American Enterprise Institute.

This particular problem isn't a simple one. One might try to make it look simple by either:

1) suggesting that such legislation is directed against faith or churces

2) assuming that the American First Ammendment is absolute and that all other nations ought to ensconce it within their constitutions with the understanding that it is absolute

Of course, this question is an example of the many such complex questions where interests or principles clash. Two principles which clash here are freedom of speech and protection of equality.

I almost always side with the ACLU or its Canadian counterpart. But there are a few instances where I do not, and this is one.

Ought free speech to allow, for example, anti-semitic graffitti on Jewish headstones? (and let's ignore the irrelevant argument "It's illegal and bad because of property damage laws")

My disagreement with anti-homosexual statements which forward hatred for that class of people is precisely the same as my disagreement for statements which forward hatred of jews. That they commonly originate from religious voices is irrelevant. Many religious voices have fomented hatred towards blacks and jews as well as homosexuals, but it was/is the fomenting of hatred which is legally important, not the source of the voice.

Canada has anti-hate laws, and I think them a very good thing, though the CCLU does not.

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ps

If you want a peak into a local British Columbia anti-homosexual organization, the following link ought to satisfy. Note the links to the American groups working in the same direction, and note also the similarities in language and strategy.
http://www.bcptl.org/gay.htm

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I'm sorry I no longer have the link.

I do have the source:
The ACLU's Forbidden Words
By Nat Hentoff
Washington Post
Saturday, September 25, 1999

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fox

Thanks...can I convince you to link when you post a quote or piece?

I'll note too that, in your Hentoff piece, the ACLU position does acknowledge the conflict of principles.

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If I had the link I would have posted it. I haven't had the link in years. I am very familiar with this particular case; however.

The point is that the ACLU is a champion of free speech, etc. UNLESS it interferes in any way with other agenda that the ACLU supports or seeks to further. When that happens, there always seems to be room to compromise one principle in favor of another and, more often than not, free speech is the principle that takes it on the chin.

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I believe this is the piece Fox was pointing to:

http://www.jewishworldreview.com/cols/hentoff092099.asp

The author (Hentoff) is not being partcularly intellecually honest. You can find the ACLU version of this disagreement here...

http://www.aclunc.org/workplace/aguilar-amicus.html

As you will see, this is a case of anti-discrimination. It is not an example what fox and federal are charging.

Quote:

In many cases, distinguishing protected expression from unlawful behavior in the workplace is a difficult and sensitive task. This case, however, is not difficult. Here, a trial judge has found, after a full evidentiary hearing, that a white supervisor has engaged in a pattern of subjecting his Latino subordinates to a continuous barrage of racist epithets, and that he would continue to harass them in absence of a court order.

[....]

The narrow injunction barring racial epithets issued in this case enforces antidiscrimination laws without infringing free speech. However, the "secondary effects" doctrine, developed in the context of zoning adult entertainment, is not an appropriate theory for sustaining the injunction. The injunction is justified under a simpler rationale: a manager's subjecting the people he supervises to a continuous barrage of racial slurs is an act of employment discrimination. If a trial establishes that the supervisor has engaged in a pattern and practice of verbal abuse, the court may restrain him from continuing this behavior.

Quote:

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How very ill-mannered of you, EBrown, to have supplied the link when Fox was busy ducking the issues of accuracy and context . . .

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Yes the case was a case of anti-discrimination and another example of good intentions with unintended bad consequences. The point is, the ACLU was willing to give a bit of free speech in order to further anti-discrimination in the work place.

And you could hardly expect the ACLU to disagree with the position it chose to take so of course it would defend its position.

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Foxfyre wrote:

If I had the link I would have posted it. I haven't had the link in years. I am very familiar with this particular case; however.

The point is that the ACLU is a champion of free speech, etc. UNLESS it interferes in any way with other agenda that the ACLU supports or seeks to further. When that happens, there always seems to be room to compromise one principle in favor of another and, more often than not, free speech is the principle that takes it on the chin.

Fox,

How would you deal with the situation in this case? Do you feel supervisors should have the right to harrass their employees based on their race?

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blatham wrote:

2) assuming that the American First Ammendment is absolute and that all other nations ought to ensconce it within their constitutions with the understanding that it is absolute

Well, Germany (Germans) have been and still are often accused of disregarding free spech.

However, we think here that individual rights (Persönlichkeitsschutz) have to take precedence over freedom of speech in some cases.

Quotes from the German Basic Law:

Quote:

Article 5 [Freedom of expression]
(1) Everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting through audiovisual media shall be guaranteed. There shall be no censorship.

(2) These rights are subject to limitations embodied in the provisions of general legislation, statutory provisions for the protection of young persons and the citizen's right to personal respect.

(3) Art and scholarship, research and teaching shall be free. Freedom of teaching shall not absolve anybody from loyalty to the constitution."

The article affirms the right of citizens and those residing in Germany to express their opinions freely, and protects freedom of speech both in the interests of individuals and the democratic process. It is a broad right, one which also covers statements that may be harsh and extreme and may appear defamatory. The limits listed in the second section of Article 5 come into play in situations where free speech conflicts with general laws, with laws protecting youth, and with the right to uphold personal honor. The right to freedom of expression has also come into conflict with criminal law in diverse cases involving political statements and use of the Internet to disseminate right-wing propaganda and pornography.

In cases where expression of opinion is combined with a claim of fact, the right to express that opinion is protected by the Basic Law to the extent that its basis in fact can be verified. Should this factual basis be disproved, German constitutional courts would generally rule that individual rights (Persönlichkeitsschutz) take precedence over freedom of speech.

Quote:

Article 2 [Personal Freedoms]

(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

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No, I am a strong advocate for anti-harrassment of any kind against anybody in their own space and/or involved in legal activities and I am a strong advocate for anti-discrimination when it makes no sense for race, creed, color, gender, sexual preference, etc. to be an issue.

What I have problems with are laws that throw the baby out with the bath water. To me there is a big difference between harrassing people because of their race or whatever in the work place, and in making words themselves illegal because they 'might' offend somebody somewhere.

I support obscenity rules that require a measure of decency on the public airways etc. I do not support rules that apply the same standards to a bunch of guys telling jokes on a construction site, etc. In other words, among consenting adults, when nobody is getting hurt or encouraged to start fires or incite riots, etc., any form of speech and any words should be legal.

I probably am not explaining this well.

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Apparently you are not explaining it well.

It would help to recall what Mr. Justice Holmes said on the subject, to the effect that free speech does not protect one's right to cry "Fire!" in a crowded theater. I think the case you have cited is a perfect example of one of those few and narrowly defined instances in which the right of free speech is trumped by the protection of other civil liberties.

I find it ludicrous to construct from that a conention that the "liberals," and in particular, the ACLU, are involved in a conspiracy to deny free speech based upon a dedication to political rectitude.

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Foxfyre,

First, you claim that you are "very familiar" with this case. I am a bit curious *how* you are familiar. Everything you are saying here sounds like it is coming from a very one-sided perspective. Reading partisan web-sites does not make you "very familiar" with anything.

Quote:

No, I am a strong advocate for anti-harrassment of any kind against anybody in their own space and/or involved in legal activities and I am a strong advocate for anti-discrimination when it makes no sense for race, creed, color, gender, sexual preference, etc. to be an issue.

What I have problems with are laws that throw the baby out with the bath water. To me there is a big difference between harrassing people because of their race or whatever in the work place, and in making words themselves illegal because they 'might' offend somebody somewhere.

I don't know why religious conservatives (and I don't know if you fit into this category) seem to have a knee-jerk reaction against the ACLU. On certain issues I can see there is disagreement, but the ACLU has helped evangelical Christians on more than one occasion.

It sounds like you would agree with the ACLU on this case -- if you were more familiar with it.

I would suggest you read the actual ACLU brief and the decision (rather than political analysis of these documents from a biased source.)

If I am mistaken, please tell me what you would rule in this specific case, and what parts of the ACLU brief you disagree with.

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Foxfyre wrote:

I support obscenity rules that require a measure of decency on the public airways etc. I do not support rules that apply the same standards to a bunch of guys telling jokes on a construction site, etc. In other words, among consenting adults, when nobody is getting hurt or encouraged to start fires or incite riots, etc., any form of speech and any words should be legal.

So ammendments/laws shouldn't apply to every citizen?

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The case in question is Aguilar v. Avis Rent-a-Car Sys., 21 Cal. 4th 121 (1999). I can't link directly to the case, but you can find it by going to the California courts web site.

Here are some important excerpts:

In the present case, Avis and Lawrence [i.e. the superviser] do not contest the validity of that portion of the judgment awarding monetary damages against them. They concede that the jury's findings . . . are supported by substantial evidence and they do not claim that the damage award violates the First Amendment. For purposes of this case, therefore, it is established that Lawrence's conduct created a hostile or abusive work environment for plaintiffs on the basis of race, and that Avis properly was held liable for knowingly failing to prevent this misconduct by Lawrence. "In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." Accordingly, if the Fair Employment and Housing Commission finds that an employer has engaged in an unlawful practice, it may order the employer "to cease and desist from the unlawful practice." Defendants claim we must conclude that injunctive relief is unnecessary, because it appears from the trial court's comments that Lawrence had ceased his unlawful conduct during the pendency of the present proceedings. The trial court rejected this contention, observing that "it may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment," and finding that "based on the evidence showing harassment and discrimination [by Mr. Lawrence] to the extent already commented on . . ., there's a substantial likelihood based on his actions that he will do so in the future unless restrained." Civil wrongs also may consist solely of spoken words, such as slander and intentional infliction of emotional distress. A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. Defendants contend that, although it is proper to punish a defendant after the fact for a violation of the FEHA [California's fair employment act] based upon spoken words, the trial court's injunction against the use of future epithets is an invalid prior restraint of speech. . . . Under well-established law, however, the injunction at issue is not an invalid prior restraint, because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity.

In other words, the California supreme court simply did what any court would do in a case involving employment discrimination: it awarded damages for past wrongs and issued an injunction to prevent future wrongs. It just so happened that the wrongs in this case were speech acts. But as it was proper for the court to award damages for the prior speech acts that constituted employment discrimination, it was also proper for the court to issue an injunction to prevent those future speech acts that would also constitute employment discrimination.

To my mind, this was an easy case that was correctly decided.

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Well let's see. Since I explained my position on this thread I am accused, or it is by implication implied, that my opinion is ludicrous, I am not familiar with the case or I would agree with it, I may be a religious conservative, I think laws and amendments should not apply to every citizen, and this doesn't even consider a couple of lengthy non-related posts specifically to punish me for posting elsewhere something the member didn't like. (I am so popular here, I almost can't stand it sometimes.)

And not one of you has stated why my thesis here is wrong.

I will repeat. I am familiar with the case. I have no problem with the decision requiring an employer to cease and desist harrassment of workers because of their race, ethnicity, or whatever.

I do have a problem with the words themselves being made illegal to use in the work place.

Now, the rest of you--one simple question without derailing it here please: Do you think certain words should be illegal to use in the work place?
If so, why?

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Stomping on free speech

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