Quick Reaction
Mark Freiman, as expected, was every bit as smart and as able as any advocate can hope to be. One can certainly take issue with his points but not with the way he presented them.
My transcription skills are limited and I caution anyone reading that these posts are not a transcript; rather they are notes on the fly.
I was struck by this trope, badly enunciated by Lynch, but burnished by Freiman “Intention is a dangerous precondition: if we are not focused on the wrong doer. If we are looking at the speech itself then intention is not as important.”
This is very clever indeed. Because it seeks to divorce the speech act, the expression, from the speaker so that, miraculously, the right of the speaker to due process as his Charter Rights are being taken away, is no longer engaged.
On this logic, Warman v. Lemire is not at all about Lemire: it is about what Lemire put on his website and so it is just fine to largely ignore the procedural protections one would think warranted if Lemire the person was actually being prosecuted. This is a truly brilliant bit of abstraction (way over Lynch’s head) and, with the greatest respect to Mr. Freiman, is a distinction without a difference.
Simply put, every expression has an author. It is impossible to speak of a “hate message” divorced from the utterer of that message because, without the utterer of the message there would be no message. Just as without a murderer there would be no murder. But it was an elegantly palmed card.
It was, frankly, embarrassing to see how ill prepared all of the MPs on the Committee actually were. Mr. Comartin had a clue but the rest of the members were underbriefed in the extreme.
The whole Committee set up with its ridiculously limited time was shocking. However, more shocking, the Members of the Committee knew how limited their time was. I did not see a single one of them use the time they had effectively. Now, with Moon, Farber and Freiman this was not a huge problem – frankly Freiman could have guided them along and they never would have known it – but the sheer inability of the Committee members to master their briefs meant Lynch was able to run down the clock without really dealing with any of the administrative and procedural irregularities which have characterized the hate section.
When Lynch stated “Unsubstantiated personal attacks at Stacey and Kozack…I am proud of my staff.” One of the members should have been ready with chapter, verse and transcript citation. As it was, Lynch’s tactic of denial and delay meant the Committee is no closer to discovering what corruption lies at the heart of the hate speech section.
Not very impressive…except for Freiman who was brilliant. Wrong, but brilliant.
Ezra was live blogging as well. He was more impressed with the Members of the Committee and less impressed with Freiman.
October 26th, 2009 at 2:08 pm
It is an interesting argument. One question: if the target is the message, rather than the messenger, then how does one justify any penalty against the latter?
If I’m following, the CHRC should be “punishing” the message—perhaps through official denouncement? I can’t think of any other way of acting against a message that doesn’t result in penalizing the messenger.
One might think that as soon as state action will harm the messenger (even if it isn’t targeted in that way), then the messenger’s rights should come to the forefront.
Maybe I’m misunderstanding something. I haven’t reached Freiman’s part in the video yet.
October 26th, 2009 at 2:27 pm
I was married to a gal who did a PhD in philosophy of language. Viewed from that perspective it is simply incoherent to talk about disassociating the speech from the speaker; but that is what Freiman seemed to be trying to do.
October 26th, 2009 at 2:31 pm
Not very impressive…except for Freiman who was brilliant. Wrong, but brilliant.
Fortunately his sophistry was beyond the grasp of many panel members so he didn’t actually make his [wrong] point.
What is your assessment of Moon’s input?
October 26th, 2009 at 2:44 pm
I found that Rathgeber was fairly useful as well. He at least came close to attempting to delve into the actual SUBSTANCE of the issues, as opposed to some of the soft-ball questions that, for instance, Marlene Jennings lobbed in Lynch’s direction.
October 26th, 2009 at 2:50 pm
Jay,
The closest thing from philosophy of language I can think of that would seem to allow the distinction in a meaningful way is semantic externalism.
You sometimes hear feminists making a similar argument about sexist language: that a person can make a sexist statement without any kind of sexist or misogynistic intent. What matters is that the statement conforms with, and reiterates, existing sexist practices and tropes.
Even if all this isn’t ridiculous (and maybe it isn’t), I fail to see why the law shouldn’t take intent (e.g. of the messenger for the message) into account when it is assigning responsibility or dishing out punishment.
There’s something absurd about penalizing someone because his statement happens to mean something hateful. We can, for example, imagine a person whose brain is damaged in a special way: he reflexively writes hateful messages on the Internet about Jewish people, but doesn’t hate anyone—and is, in fact, horrified at his behavior.
(It may even be that someone else is inspired by those hateful messages to commit an act of vandalism. Worst case scenario.)
Nevertheless, since we’ve distinguished the message from the messenger, we penalize him for his messages. His intention and horror are both irrelevant to the meaning of his message, as judged by the CHRC/T, and therefore he must be punished.
Sounds like the very definition of injustice to me.
October 26th, 2009 at 4:24 pm
If this is accurate from Freiman
“Intention is a dangerous precondition: if we are not focused on the wrong doer. If we are looking at the speech itself then intention is not as important”
and it is correct that he intends to separate speech from the individual to avoid conflicts with the Charter’s guarantee of free speech to the citizens, then I would wonder how the state would sanction the speech and yet not sanction the speaker. And what freedom of expression is available to the individual if the state sanctions the speech uttered? Intention may be essential in judging criminality of an act, but it makes no difference as far as the infringement the state’s activities have on the citizenry. Just so, it is equally unimportant what the good intentions of the state are. The result is a restriction on the freedom of the people.
October 26th, 2009 at 4:45 pm
Jay you did a fair job reporting a difficult but rather facinating discussion.
I agree that Freiman was brilliant. However Moon who is usually quite erudite stumbled and bumbled his way through. I was very unimpressed.
As for Farber, well for a non-lawyer, he made his points well though he quite rightly ceded the floor to Freiman who he generously introduced.
Ms. Lynch was as expected, a good civil servant. Her only real moment was her strong defence of her staff and her unequivocal rejection of Mr. Levant,s over-the-top allegations. If she indeed produces the document books she claims to have completed detailing Mr. Levant,s untruths it will very much diminish anything left of Levant’s already tarnished reputation reputation.
Finally I hopped over to Levant’s site. He is clearly afraid. His continued drama-queen antics and clear hatred of Farber makes him look like a buffoon. Jay your coverage is much more mature and legally sound than any I have seen. You will do your position a huge favour by telling Mr. Levant to take a long holiday. He is hurting your position.
I am told that after the meeting broke up many committee member scame over to congrastulate and thank Mr. Freiman who was very much the star. Even the Tories on the committee admitted to having much food for thought from Freiman.
One member of the committee(my friend asked me not to name)noted how these witnesses are an example of how this issue can be debated without the rancor usually emenating from people like Mr. Levant.
It was a good day for civil debate
October 26th, 2009 at 5:01 pm
Pete, I don’t think Ezra is in the least bit afraid. Lynch’s unequivocal rejection of Ezra’s charges was pure bluster. It was unfortunate that the Members were gulled into discussing the Hechme wifi incident as this was a complete sideshow. And it was even more unfortunate that not one of the Members was well enough briefed to be able to give Lynch chapter and verse (and transcript citation) of the numerous ethical and legal lapses of Commission hate section staff. (Though this might be because the Clerk of the Committee had not seen fit to pass along the documents Ezra provided at Comartin’s request.)
That said, Freiman was every bit as brilliant as I expected him to be. As I point out above, I think he is running an argument which does not actually hold water; but that does not change my respect for his integrity or his skill. And I wrote him to express my admiration for that skill and pure intelligence.
It would be a good day for civil debate if Freiman and Moon and at least one full on free speecher had at it. Lynch simply clings to her talking points. And, frankly, the Committee seems to get lost very, very easily.
October 26th, 2009 at 5:04 pm
The argument is disingenuous and stupidly revisionist. Irregardless of their oleaginous rhetoric and inverted dialectics, they argue, in pith and substance, for state censorship (speech codes). Historically,
every nation that has hosted state censorship on speech has also oppressed Jews and other ethnic or social groups.
They argue for the very essence of statist injustice. How ‘brilliant’ is that Jay?
These guys are shmendriks. Moon was a virtual genius by comparison of the rationales used.
October 26th, 2009 at 5:06 pm
I hate to say it, folks, but Section 13 and the CHRC/CHRT (and their Provincial counterparts) are here to stay…even IF we get a Conservative majority. I’ve come to the conclusions that all of our politicians are bug-eyed ass monkeys who just like to fling their shit around…and this is on their best day. I’ve said it before, I’ll say it again: Canada is doomed.
October 26th, 2009 at 6:00 pm
I can only say in the Seinfeld tradition, “Freiman!”
October 26th, 2009 at 8:01 pm
I’m with Charney; it was nice to see adults discuss the subject of s.13 for once. Lynch wasn’t terribly impressive, but I thought Freiman and Moon made their points well. And while they disagreed, there was none of the bluster and bullshit that marked Levant and Steyn’s appearance. No name-calling or shameless distorting either.
Meanwhile, over at Ezra’s, we get comments like: “Freiman’s hairdo was a little distracting for me—sorry, I just have to say it, it’s pretty weird when a Jew wears his hair like, well, like Hitler did.”
Very classy, especially coming from a guy who’s built like Goring and spins like Goebbels.
October 26th, 2009 at 10:02 pm
“if we are looking at the speech itself then intention is not as important.”
This is interesting. How does it translate into action?
You can say whatever you want, but we will prevent anyone from hearing.
If you pursue speech, not the speaker, it is simply another way of describing a censorship regime that prevents dissemination of speech.
A columnist can write what they want, but publishers can be harassed (not individuals under the Charter) to stop them from publishing. Simple rule change as requested by the Barbara Hall.
A person can express whatever they want on the internet, but the regulated access providers can be leaned upon to prevent you from having an account. CRTC can play here.
Anyone can have a web site with comments, but registration and a code of conduct must be followed, something on the lines of the CRTC rules for broadcasting.
The glory of such a regime is that all that is required is a simple adjustment of administrative licensing rules to make it happen. And maybe a small amendment to some legislation. The one that amends section 13 and section 51 (In response to public concerns over the right to free speech, we have amended the sections that have been abused).
The civil service and political branches won’t give up power unless forced by the Supreme Court.
Derek
October 27th, 2009 at 5:01 am
Truewest has a point about adults conversing and Ezra’s cheesy hairdo comments.
On the flipside, if Ezra had played nice all along and not posted his interview with the CHRC on Youtube and written his book etc., we would probably not be watching these Committees in Ottawa.
October 27th, 2009 at 7:03 am
Matt: you cannot argue reasonably with someone who believes they can tell you what you cannot talk about.
Derek
October 27th, 2009 at 9:29 am
What struck me most was the reaction and tone of remarks by Loyal Opposition Committee members towards the folks appearing, compared with the reception given Levant and Steyn, grrr.
When the Cheshire Cat had finished her suitably bi-lingual doubletalk, Brian Murphy – who so perfectly represents the Liberal party as an habitual campaign blowhard – actually managed to bring Barack Obama into the discussion.
The Mad Hatter and March Hare, representing the Nation of Quebec, managed between them to drag out of the disappearing Cheshire Cat that the Judicial review was a ‘Federal’ matter before the Hare retired to ‘meditate’, and the Hatter to his email.
The Red Queen kept pushing for the Cheshire Cat to take off Levant’s head in libel proceedings, while the Duchess yelled ‘Pig!’
October 27th, 2009 at 11:52 am
I am not surprised that the CJC representative(s) did a superb job defending their position. It is, after all, an easy position to defend, isn’t it? It’s even easier if one dehumanizes the perpetrator, reducing him to a collection of worthless, purposeless, vile, hateful words, while at the same time humanizing the victim. Hateful words have consequences and hurt real, living, breathing, feeling people. Somewhat like anti-gun legislation but with words as the controlled and regulated weapon.
In the end, and after the eloquent and reasoned defense, I still do not see why, if it is only speech that is so vile and hateful as to reach the level of Dicksonian proportion that concerns us, is the criminal code not good enough? I agree with what I see as the more balanced, pragmatic and realistic position of Richard Moon.
However, if it is not and it is necessary to have a vehicle like the CHRC to deal with hate speech, why must we bother with a Tribunal? They, the CHRC, are confident in their decisions. They are sure in their ability to weed out good cases from bad. They operate only under the highest ethical and procedural standards. The statistics prove how good, in fact, they are at their work. We can be proud of the work that they do. And, truly no merely offensive Canadian should ever fear the CHRC. In the event that some hate speech wants to appeal its decision, the Federal Court could serve that purpose.
Then, of course, if we are only passing judgment on words divorced from human flesh and blood and feeling, would not a Commission edict pronouncing those hateful, vile words as unacceptable and evil be good enough? Perhaps some day, as with the gun registry, we might move this argument far enough that we can create a wordlist and speaker registry with permission to suitably express oneself being given to only those responsible wordsmiths. We will finally come to recognize that words in the hands of the irresponsible, untrained and unregistered are indeed dangerous.
Though, I’m not sure after watching yesterday’s performance that, were I in charge, I’d be handing out more than training permits to some of our Members of Parliament.
October 27th, 2009 at 2:20 pm
Jay, you’ve got my spammer on here—commenter #14. Actually he’s making the round of several blogs. He has it in for the guy whose personal info he keeps posting. I deleted four identical messages from him (and identical to the one above)—see here: http://mooseandsquirrel.ca/2009/10/25/09:21/liberals-against-ignatieff/#comment-1272
October 27th, 2009 at 2:22 pm
natasha…not any more….that will teach me to moderate while on a conference call
October 27th, 2009 at 2:34 pm
And that’ll teach me to run my comments without moderation—no more!
October 27th, 2009 at 2:47 pm
The problem with moderation natasha is that stuff slips through when you are trying to do three things are once.
October 28th, 2009 at 6:31 pm
WcFields: “All things in moderation. Especially moderation.”