Free Speech and “Tolerance” on the Internet

French foreign minister Bernard Kouchner had an op-ed in the New York Times on Friday entitled, “The Battle for the Internet.” (hattip Volokh Conspiracy)  Apparently it was conceived as a call for freedom of expression on the Internet, which Kouchner describes as the medium of an unprecedented “revolution in freedom of communication and freedom of expression.”  In fact, Kouchner’s notion of “freedom of expression” is somewhat constrained.  It doesn’t apply to people whose opinions do not bear a sufficient resemblance to his own. 

Kouchner does not keep us guessing about the type of people whose freedom of expression should be the subject of our particular solicitude.  In his own words,

For the oppressed peoples of the world, the Internet provides power beyond their wildest hopes. It is increasingly difficult to hide a public protest, an act of repression or a violation of human rights. In authoritarian and repressive countries, mobile telephones and the Internet have given citizens a critical means of expression, despite all the restrictions.

We should provide support to cyber-dissidents — the same support as other victims of political repression.

For those not familiar with current French political thought regarding the categories of people one can legitimately view as “victims of political repression,” I note in passing that they do not include Jews living in predominantly Moslem countries, Serbs in Kosovo, or Russians in Latvia.  But I digress.  Let us allow Mr. Kouchner to give a more comprehensive definition of those who, we must assume, are not so victimized.  In his words,

Extremist, racist and defamatory Web sites and blogs disseminate odious opinions in real time. They have made the Internet a weapon of war and hate. Web sites are attacked. Violent movements spread propaganda and false information.

I am not talking about absolute freedom, which opens the door to all sorts of abuses. Nobody is promoting that. I’m talking about real freedom, based on the principle of respecting human dignity and rights.

The battle of ideas has started between the advocates of a universal and open Internet — based on freedom of expression, tolerance and respect for privacy — against those who want to transform the Internet into a multitude of closed-off spaces that serve the purposes of repressive regimes, propaganda and fanaticism.

In other words, “freedom of expression” should not be extended to propagandists, fanatics, and promoters of “hate.”  That would be to embrace “absolute freedom of expression,” as opposed to “real freedom of expression,” which should only be extended to those who are sufficiently “tolerant” to agree with Mr. Kouchner.  And how does one go about defending “real freedom of expression?”  Why, by invoking the aid of “international instruments,” presumably after the fashion of the UN.  Again, in Mr. Kouchner’s words,

We should create an international instrument for monitoring such commitments and for calling governments to task when they fail to live up to them.

No fewer than 180 countries meeting for the World Summit on the Information Society have acknowledged that the Universal Declaration of Human Rights applies fully to the Internet, especially Article 19, which establishes freedom of expression and opinion. And yet, some 50 countries fail to live up to their commitments.

We should create an international instrument for monitoring such commitments and for calling governments to task when they fail to live up to them.

In a word, then, we are to leave defense of “freedom of expression” to more or less the same people who entrusted defense of “women’s rights” to the theocratic rulers of Iran.  Good luck with that.

In response to Mr. Kouchner’s impassioned plea for “real” freedom of expression, I suggest that he take note of the fact that it has already been tried, with rather disheartening results.  Our Canadian neighbors implemented a version of it complete with a national version of his “international instrument for monitoring such commitments,” in the form of what they called the Canadian Human Rights Commission (CHRC), throwing in a batch of clones at the provincial level for good measure.  It turned out that defense of “human rights” in Canada required the suppression of opinions that diverged from the prevailing “progressive” orthodoxy. 

Started back in the 1970’s, these organizations long had the good sense to limit their censorship to obscure conservatives, religious groups, unpopular and extreme political groups, and similar “violators of human rights” who lacked the name recognition and the wherewithal to fight back.  The CHRC prided itself on a 100% conviction rate in its vendettas against such malefactors, achieved via such dubious means as debarring truth as a defense, allowing hearsay evidence, and funding accusers but not defendants.  Eventually, however, they became “dizzy with success,” and started launching attacks on people who could actually defend themselves, such as conservative talk show host Mark Steyn, who occasionally sits in for Rush Limbaugh, the editors of Canada’s flagship Maclean’s magazine, and Ezra Levant, editor of the Western Standard.   Defend themselves they did, as can be seen, for example, here, here and here.  The mainstream media in Canada took note, belatedly realizing that their own collective freedom of expression was threatened, and not just that of the nameless small fry whose rights had been a matter of such singular indifference to them for 30 years and more.  They, too, began pushing back, and a host of Internet sites joined the fray, examples of which can be found here, here, here, and here.  Finally, assured that their backs were covered, even Canadian politicians rediscovered the value of freedom of speech.

Finally, confronted by forces it couldn’t intimidate, the CHRC backed down, in the familiar style of bullies whose bluff has been called.  The victory was a pyrrhic one, however.  It and its sub-bullies live on, and their existence will surely continue to have a dampening effect on the public discourse of anyone who might dare to disagree with them.  As Stefan Braun of the Winnipeg Free Press puts it,

Maclean’s, more mainstream and better-resourced than the niche Western Standard, survived its accusers. But to see any of this as a victory misses the point. If such wrongful accusations can be legally levelled to harass, hound and hurt even established media and renowned authors, can anyone really feel safe from rapacious censors, who may think to challenge popular wisdom or powerful censorship interests defending it?

What message is sent to malicious, or simply misguided, thought-accusers who think to silence them?

Thought persecution, not legal vindication, is the point. Legal vindication is evidence not of the absence of public harm from wrongful hate-speech complaints, but proof of its existence.

Steyn and Levant signify only the visible tip of a much larger chilling iceberg of public self-censorship lurking unspoken and unheard beneath…

The effects of Mr. Kouchner’s “real” freedom of expression are quite visible in Europe as well.  In the Netherlands, a major political party is threatened with blanket censorship in the trial of its leader, Geert Wilders, for daring to criticize Islam.  In the UK, high-handed bureaucrats banned popular US talk show host Michael Savage from entering the country, citing the now-familiar trumped up charges of “provoking criminal acts” and “inciting hatred.”  Once upon a time the country’s Independent Television Commission (ITC) even considered banning Foxnews for being “too opinionated.”  Apparently the commissioners failed to detect the irony of such a charge in the homeland of the BBC.

Europeans commonly refer to the First Amendment right to freedom of expression guaranteed to citizens of the United States as “radical” in comparison to their own “real” freedom.  How long we will remain “radical” in this respect is anybody’s guess.  Our latest nominee to the Supreme Court, Elena Kagan, has been quoted as saying, “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”  Predictably, one form of freedom of expression she feels bears an unacceptably high “societal cost” is “hate speech.”  Rest assured that “hate speech” will never include the torrent of obscene and violent abuse Sarah Palin has been subjected to since her candidacy for the Vice Presidency was announced.  Nevertheless, it is a highly flexible term, and can easily be construed to include any form of opposition to the prevailing orthodoxies.  Just ask the Canadians.

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