A few people suggested I post my recent paper for Intellectual Freedom and the Library. I feel a little weird sharing an academic paper, but this atypical assignment does seem appropriate here.
In the first part of the course, we read various articles about the legal and philosophical underpinnings of freedom of expression. We were each assigned one article or book chapter, which we summarized and presented to the class for discussion.
Next, we used those discussions in a paper, where we were asked to "develop an overall philosophical approach to intellectual freedom and freedom of speech", and specifically applied that approach to some situations that typically bring challenges in the library. A "challenge" in this case is a library user questioning the appropriateness of certain material for the library, and asking for its removal.
Unlike most academic assignments, this paper could be written in the first person, as long as it developed a coherent philosophical response to the assigned readings. The goal was to "begin to clarify in your own mind the premises of a personal philosophy of intellectual freedom and freedom of speech, with supporting reasons and arguments".
A central theme of this class is the difference between the US legal and Constitutional approach to freedom of expression and that of other Western democracies, and the inherent conflict that creates for Canadian librarians - another reason it seems appropriate for wmtc. (I explained this a bit further in part one of this post.)
Our second-half assignments are group projects, in which groups of three people research specific areas of library challenges, lead a seminar and discussion on the topic (an entire class worth), then write a paper. My group is pornography, erotica, and obscenity. The other topics are racist hate speech, defamation of religion, sexual orientation, and intelligent design and the scientific process.
So, here's my paper. I've removed the citations or turned them into links where possible.
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Freedom of Expression as a Human Right and a Social Need
My philosophical approach to freedom of expression reflects the so-called absolutist view of the United States. I oppose curtailing freedom of expression in almost all circumstances, including hate speech and pornography. In a public library, however, I believe restraints on pornography are justified, not based on obscenity or morality, but for the comfort of the public.
I believe freedom of expression is a fundamental human right, and that it is most important to uphold that right when it feels the least comfortable to do so.
Individuals need freedom of expression
The need for self-expression is an integral part of being human. Freedom of expression is necessary to individual human development, to the development of societies, and to the continuing evolution of human civilization. Although freedom of expression sometimes must be restricted, such as prohibitions against incitement to violence, any restriction should meet strict tests and be applied as infrequently as possible.
On the individual level, I offer my own experience. In Is There a Right to Freedom of Expression? Alexander defines freedom of expression as a right of the listener or reader, as opposed to the speaker or author. My own worldview has been formed by having full access to anything I wanted to read or hear. Sometimes the ideas I encountered confirmed beliefs I already held, and helped me articulate and defend them. In other instances, encountering new ideas changed my beliefs, although not always in the manner the author intended. Without access to those ideas, my growth as a person would have been stunted.
Alexander creates and applies certain theoretical tests which supposedly define human rights, and concludes that freedom of expression is not a human right. Alexander’s view strikes me as intellectual gymnastics that serve more to obfuscate than illuminate. Human rights extend beyond bodily integrity and personal security; they include the freedom to be wholly human. Being human includes the freedom to think and express our own ideas, and to freely encounter the ideas of others. This is only possible if society maintains as full a conception of freedom of expression as possible.
In prisons, police states, or other circumstances under which freedom of expression is severely restricted, people risk sanctions, imprisonment, and even death in order to express themselves and access the expressions of others. In all civilizations, ancient or modern, one finds evidence of the need to create and share artistic expression. The need for self-expression is universal, part of what defines us as human beings. Anything that is so intrinsic to being human must, I believe, be a human right.
Societies need freedom of expression
Unfettered freedom of expression is a positive force for society. Had my own access to ideas been abbreviated, my capacity to contribute to society also would have been curtailed. Yet many of the ideas that have informed my own beliefs were considered subversive and a threat to the social order at some time in history (and, in some communities, still are).
Had Martin Luther King, Jr. not had access to the teachings of Gandhi, would his own commitment to nonviolence and civil disobedience been as strong? If I had not read King’s words for myself (as opposed to hearing selected excerpts tailored for mainstream audiences), would I understand the connection between social justice and peace as profoundly as I do today? Yet both Gandhi and King were considered by many to be enemies of the state, and were at times subject to censorship and sanction.
One could offer an almost infinite number of similar examples. Without the freedom to express all thoughts and viewpoints, and the right to access the vast storehouse of knowledge and thought, human societies could not progress. Everything from the abolition of slavery to equal rights for women, to action on climate change or an end to war, begins with the exchange of ideas. As one society progresses, it sets an example for others. Without freedom of expression, this is not possible.
Evaluative neutrality, or the "puppies are cute" test
Freedom of expression is most needed for ideas that are abhorrent to the majority and/or disturb the status quo. In fact, I would argue that it is only needed for those ideas. Once an idea is accepted as mainstream, expression of that idea likely needs no protection. The person who says, "Puppies are cute," doesn't need constitutional protection. The person who says, "Puppies make good stew," does. If I say, "The government is doing a great job," the government will not bother me. But if I can't criticize the government without fear of censure or punishment, I suffer as a person, and democracy suffers.
Social progress is made only when people push at the margins of acceptability with ideas that may shock or even repulse the majority. The abolition of slavery was once such an idea. My generation saw South African apartheid dismantled, a revolution brought about by radicals whose ideas the government fought to suppress.
Although I disagree with Alexander on many points, his test of evaluative neutrality is essential to my own view of freedom of expression. If we grant freedom of expression only to ideas with which we are comfortable, that freedom is meaningless.
Sunstein’s concept of reputational cascades, from Why Societies Need Dissent, speaks to this same necessity. Dissent is vital to a free society, yet even within a democracy, the pressure to conform can be very powerful. I will return to this theme when discussing hate speech, below.
If laws protecting freedom of expression exist for the benefit of unpopular speech, it follows that some unpopular speech will be unpopular for good reason. I believe laws that curtail the expression of hate speech are ill-advised in terms of both individual rights and social value.
Regarding individual rights, anti– hate speech laws can be seen as the dominant group’s attempt to limit expression of a minority viewpoint. One society may try to limit speech about socialism, another may try to limit speech about racism. Which strikes us as unjust and which as correct depends on our belief systems. Evaluative neutrality again must be invoked. If it’s wrong to censor peace activism, it's wrong to censor hate speech, and visa versa.
Under Canadian law, hate speech is said to violate the human rights of the offended party. Although I believe freedom of expression is a human right, I do not believe there is a human right to not be offended or insulted. We may wish to create a society where all people are free from insult and offense, but that cannot be mandated. The desire to create such a society does not override the human right of freedom of expression.
From the perspective of society as a whole, laws banning hate speech may have unintended negative consequences, while hate speech itself may indirectly produce beneficial effects. Sometimes unpopular ideas need to be heard because they can improve society – but sometimes they need to be heard because opposition to those ideas can improve society. We should allow even the most repugnant ideas equal access, in order to bring public discourse to bear on them. I believe we should, as the saying goes, combat hate speech with more speech. Fish, in There's No Such Thing as Freedom of Speech... and It's a Good Thing, Too, rejects this concept, but I see it as healthy, necessary, and productive.
Laws prohibiting hate speech are, in my opinion, grounded in wishful thinking, an attempt to deny the existence of reprehensible ideas. At best, these laws apply legal wallpaper over socially unacceptable ideas. The speech may be repressed, but the ideas cannot be, and worse, because of the prohibition, they may stand unchallenged. When hate speech becomes public, we can debate, counter, and denounce.
In "The European Court of Human Rights and Freedom of Expression," Flauss argues that there is no real way to ban such speech. Rosenfeld also points to the seeming impossibility of banning hate speech. In "Hate Speech in Constitutional Jurisprudence: a Comparative Analysis," he refers to coded messages – expressions intended to denigrate certain groups, disguised in more socially acceptable forms, such as anti-immigration rhetoric couched in concern for the economy, or pseudo-scientific inquiry intended to prove racial inferiority. If the definition of hate speech is too narrow, limiting only specific expressions, the law will be inconsequential. If the definition is too broad, it infringes on too many expressions and activities. This illustrates a central problem with hate speech laws: banning certain forms of racist speech will not eliminate racism.
Canadian hate-speech laws also serve to maintain a fiction that racism, homophobia, and other bigotry is nonexistent, or at least very rare, in Canada. In my opinion, this is not in the best interest of Canadian society. All change begins with awareness and recognition of a problem. How can racism in Canada be reduced, if Canadians don’t confront racist ideas? Further, the prohibition of the expression of certain ideas does not abolish the ideas themselves. Mahoney, in "Hate Speech, Equality, and the State of Canadian Law," links the 1998 murder of Matthew Shepard to anti-gay propaganda. Are we to conclude that without homophobic writing and speaking, there would be no homophobia, and no anti-gay violence? This view seems to assume that the expression of a feeling gives rise to the feeling itself, rather than the reverse.
One unintended negative consequence of prohibiting hate speech is the effect such prohibition may have on members of the censored group. In Canada, some people whose views are considered bigoted by the dominant society identify themselves as persecuted, and claim a violation of their own rights. While this may stretch the word “persecuted” beyond reasonable limits, there may be a valid claim of infringement of freedom of expression. In a case like this, banning certain speech may create greater cohesion and group identity within the group. Sunstein’s analysis of ideological extremism, from his Why Societies Need Dissent, is relevant here. The marginalization of minority opinions, group polarization, rhetorical advantage of simplistic views, strong group identity, conflict with the larger society, and other factors Sunstein identifies as reinforcing extremist views may all be enhanced by laws that prohibit hate speech.
The most important argument for prohibiting hate speech is the claim that, historically, written and spoken propaganda have been implicated in conditions that gave rise to genocide. This is undeniably true, and if regulating freedom of expression could prevent the deaths of millions, it would be incumbent on us to enforce those limits. However, although the link between hate speech and genocide is real, basing laws on this association is problematic in the following ways.
- In any case where written and spoken hate speech is implicated in genocide, other conditions also prevailed. Although expression of hate was implicated, those expressions alone are insufficient explanation for ensuing violence.
- In many instances of genocide, the hate speech originated directly from those in power – the dominant group that was either creating law or selectively enforcing existing laws. In such an instance, laws governing hate speech would have had no effect.
- There is a difference between speech and action. Hate speech alone doesn't actually kill anyone. Speech intended to incite violence is already curtailed under "clear and present danger" laws.
- The notion that by outlawing hate speech we can prevent racist violence or genocide is an oversimplification. Banning the dissemination of ideas will not ban the ideas themselves, so the laws will be ineffective.
- Banning speech denigrating members of certain groups can be perceived as privileging those groups, leading to increased resentment of the very groups hate-speech laws seek to protect.
Here again, Sunstein's analysis of reputational cascades and groupthink is applicable. One potential antidote to hate speech is the cultivation of outsider viewpoints – the voice of reason that speaks above the mob. In Canada, we tend to equate hate speech with outlier voices. But when racist viewpoints gain enough traction to lead to violence, they are no longer outliers; the outliers may now be the dissenters. In order to fight the dangerous effects of hate speech, we must cultivate a society where people feel free to speak up.
In the U.S., some forms of hate speech emanate directly from the government. In the military, soldiers are trained to dehumanize and hate people who have been labeled as "the enemy", so that they can inflict damage without the intrusion of conscience and empathy. In my view, that constitutes real and dangerous hate speech, yet there is no possibility of its prohibition.
Further, in some circumstances, hate speech may lead to a positive backlash. Currently in the United States, hate speech directed at gay and lesbian Americans may be contributing to greater mainstream acceptance of sexual orientation, as people reject extremist views and seek a more tolerant position.
Banning certain expressions is an attempt to ban certain thoughts. If we are to live in a free society, we must maintain true intellectual freedom. Freedom of expression is most strongly implicated when applied to ideas distasteful to the majority. In other words, racists have as much right to free speech as people who say “puppies are cute”.
It follows, then, that I believe all ideas should and must be represented in a public library, and that patrons of a public library should have access to the broadest possible range of ideas.
Pornography in the library may be the one exception to my hands-off approach to freedom of expression.
For many years, I was involved in the movement against sexual assault and domestic violence. Movement orthodoxy teaches that pornography is a central component in a culture that perpetuates violence against women. I read MacKinnon, Dworkin, and other feminist theorists who oppose pornography. I was not entirely comfortable with these views, but there was little opportunity to challenge them (another example of Sunstein's reputational cascades).
Later in my activist career, I met feminists who regarded access to pornography as an issue of personal freedom and expression of individual sexuality, including for women, and especially for people whose sexual orientation and preferences fell outside the mainstream. While these feminists might agree that certain forms of pornography degraded women, they recognized both the impossibility and the danger of regulating some pornography and allowing others, and felt that a libertarian approach was not inconsistent with feminism. (The underlying theory for these views is often associated with Willis and Bright, but I do not cite either of them as a personal influence.)
Ultimately I came to see anti-pornography laws as a product of lingering Puritanism, and a Victorian view that women need to be sheltered and protected. I concluded that there is no compelling state interest in regulating pornography. I now regard pornography the way I regard any sexual activity between consenting adults: a private matter, not to be regulated by the state.
(It should not need to be said, but somehow must be, that pornography involving children is a special category, and there is a wide range of justifications for maintaining criminal censure against it.)
Despite my belief that the state should not regulate the use of pornography by consenting adults, I believe different rules apply in a public library. Whether a library is a public forum, a limited public forum, or some other designation, it is clearly not private space. The libertarian axiom "what we do in the privacy of our own homes is our own business" does not apply. Just as a public library would not subscribe to pornographic magazines, it should not allow patrons to view pornography on the internet in the library. Without rendering a moral judgement against people who view pornography on the internet, I believe the comfort of the majority of library patrons is more compelling than one person's right to view material better suited to a private setting. I liken this to a prohibition against playing loud music in the library.
Freedom of expression theory vs. practice
My U.S.-based philosophy of freedom of expression refers to the theoretical position articulated in the United States Constitution, not the actual practice of the country.
Supreme Court decisions and other case law cited in articles by Schauer, Zoller, and Rosenfeld attest to the re-affirmation of the absolutist position over many decades. However, having lived in the U.S. for the majority of my life, and standing in opposition to its policies for nearly as long, I am aware of a sizeable gap between the country's Constitution and the rights accorded citizens. Throughout U.S. history, freedom of expression has been curtailed to protect the government from criticism, to prevent citizens from knowing what the government is doing, and to prevent the dissemination of ideas that counter government interests.
While infringements of Constitutional rights such as the Sedition Act, leading to the imprisonment of labour organizer and socialist Eugene V. Debs, are well known, many less celebrated examples occur regularly. In recent years, United States citizens have been arrested for criticizing the Vice President, for flying the American flag upside down, for wearing t-shirt with the words "Give Peace A Chance" in a mall, for holding a sign reading “Honk if you want Bush out”, and dozens of similar examples. In most – although not all – of these cases, the arrested citizen was vindicated in court. However, arrests have an immediate and lasting chilling effect on potential dissent – dissent that is vital to a functioning democracy.
Knowledge of these cases and many similar events have profoundly informed my views on freedom of expression. It may be that my views differ from those of many Canadians because my relationship with government has been different from theirs. I am more concerned with how government might misuse laws that curtail freedom of expression than with any person's supposed right to not be offended.
My personal philosophy of freedom of expression is broad and inclusive. I believe a public library must take the most inclusive view of freedom of expression possible. Evaluative neutrality must apply, and all ideas, including ones we find reprehensible, should be represented.
One exception to which I assent is the viewing of internet pornography in a public library. As a public place, the library is an inappropriate forum, and the comfort of the majority must take priority. However, I do not support laws banning the making, sale, or distribution of pornography involving only consenting adults.
Freedom of expression is a right of all people, and essential of a society is to be just and democratic.
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