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Deliberation and Hate Speech

David Bernstein is wont to point out stories like the following*:

Stomping On Free Speech

"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.

... 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.

Assuming that the writer is presenting the cases fairly, they're pretty frightening. The usual response is first to assert a commitment to free speech (as a moral principle even in cases when the First Amendment doesn't apply), and second to point out the irony that the promulgators of PC speech restrictions got the power they have today because of the free speech that their opponents accorded to them in the recent past. We might then move on to suggest that they simply suffer from the all-too-common human failing of embracing intolerance when possible, and resorting to tolerance when necessary. (I've been tossing around the idea of how one could construct a left-but-not-liberal justification for restrictions on speech, something along the lines of the idea that discourses have power and that concepts like the marketplace of ideas and "sticks and stones may break my bones but words will never hurt me" are luxuries of the privileged class. But I'll leave that for another day.)

But what strikes me is how bill C-250 delegitimizes the very gay rights movement it seeks to defend. Under a deliberative conception of democracy (a la Habermas), the ideal case of a securely justified law is one in which all citizens affected by it have been rationally persuaded to accept it. To make an argument or proposal in a democratic system is to offer your view as a candidate that could be accepted in such a fashion (or at least it is to attempt to have your hearers believe that that is what you are doing). An idea can only be truly and completely beyond the pale after such a consensus has been reached, because in that case anyone expressing a different view is ipso facto not doing so rationally, and thus is subject to non-rational (i.e. coercive, if only in the loose sense of pressure and shame) measures to change their view.

Of course, the practical barriers to such an ideal are legion, including such varied constraints as the limits of the human mind, the limits of science to produce reliable empirical inputs, and the logistics of carrying out such deliberation across space and time. Thus we have the system of provisional consensus. After a good faith effort to do some deliberating, we take some mechanism -- such as a majority vote -- to come to a resolution. However, that resolution is regarded as legitimate by those on the losing end precisely because it is provisional -- i.e., it is open to being challenged at a later date, at which time the losers can reopen the issue and try again.

What measures like bill C-250 attempt to do is to make a provisional agreement on the legitimacy of homoseuxality into a functionally final consensus. They declare opposing views to be beyond the pale, and subject to coercive (in the strict sense) regulation as if all rational people had accepted homosexuality. However, the agreement on the acceptability of homosexuality is legitimate precisely because of its provisionality, the invitation it extended to gay rights foes to try again later. To take that invitation away through criminalizing the opposing view removes the reason for opponents to grant even provisional legitimacy to the laws regarding homosexuality. With that legitimacy withdrawn, the laws "defended" by C-250 are no longer morally legitimate and binding on all people of Canada.

To put it in short form: You are only morally bound to obey laws that you are free to disagree with.

A law banning disagreement is self-refuting, or at least refuting of the policy it seeks to defend -- the article in question doesn't make it clear whether it would be a crime to say "C-250 is wrong," or just "homosexuality is wrong." In the case of the latter, there remains a two-stage process for overturning the provisional consensus -- you first argue against C-250 to get it repealed, at which point you regain the freedom to argue against homoseuxality. Yet while it may be theoretically justifiable, the practical difficulties associated with it make it effectively self-refuting.

*It would be great if he wrote a book about them or something ...


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