Tag Archives: free speech

Are hate speech laws unconstitutional?

There’s been lots of press coverage this morning of a fairly confusing issue: The Canadian Human Right Tribunal has ruled that Section 13 of the Canadian Human Rights Act is unconstitutional, as it contravenes Section 2(b) of the Canadian Charter of Rights and Freedoms.

What does this mean?

Good question. In short, it means that the CHRT has declared that the Canadian Human Rights Commission can’t penalize people for hate speech, because that conflicts with the fundamental right to freedom of expression enshrined in the charter.

Now, since the CHRT doesn’t in and of itself have the power to strike down a federal law, I’m not exactly sure what this means in terms of the future of Sec 13 of CHRA.

Parliament, I believe, would have to change the law, and this (basically allowing hatemongers their right to spew hate) doesn’t seem like a really popular vote-winning issue in my mind. However, it does seem to indicate that any future prosecutions under Sec 13 are pretty much going nowhere. I’ll keep my eyes open for more informed analysis as they roll out in the coming day and beyond. (If you’ve got one, leave a comment with a link!)

This ruling came out of the ongoing legal wrangle between Richard Warman and Marc Lemire. Lemire is a white supremicist who has written a lot of really disgusting stuff and was extensively involved with the neo-Nazo group Heritage Front. Warman is a lawyer from Ottawa who has filed a whole lot of human rights complaints, often against hate groups who have published hate speech on their websites. And he wins, almost always. Warman has been incredibly successful in winning human rights rulings, with financial penalties attached, against Internet hate sites. Warman has also sued a bunch of people and organizations, ranging from David Icke (the lizard conspiracy book dude) to  a provincial library association (see para 23 in this article), for libel and/or defamation of character.

Suffice to say these are both polarizing characters here.

Anyway, Warman complained that Lemire has posted stuff that was “likely to expose identifiable groups to hatred or comtempt” and Lemire countered by challenging the law itself, and the upshot is that the trubunal decided that the law isn’t working the way it was intended anway (has become punitive rather then preventative, as it was apparently intended to be). So even on the one count on which he found in favour of Warman, tribunal chair Athanasios Hadjis did not levy fines.

My thoughts:

I have been fascinated with Canadian laws and legal record related to freedom of expression since I had the fortune to take Ann Curry‘s class on intellectual freedom some years ago.

Unlike the US Government, with which I am more familiar due to having grown up south of the border, the Canadian govenment does not hold Freedom of Speech as quite so strong a core value (not that Free Speech is inalienable right in the US either). Canada also tends to be more paternalistic in approach, which has led to some odd case law (see R. v Butler, a somewhat misguided effort to protect women against the oppression of pornography, for example).

In general, I do subscribe to the idea that speech is speech, writing is words, and these are somehow different from actions. There is a grey area in there, though. When do words become actions? I used to work in domestic violence — when do words become abuse, for example?  How can we provide law courts with effective guidance on this? I have written before on the Westboro Baptist Church. When are their homophobic and racist rallies merely speech and what would it take to cross over into inciting a riot or other violence?

These are tough questions, and I find it quite interesting and challenging to consider things that are particularly abhorrent to me, for example holocaust denial, and think about whether I can maintain my free speech convictions in the face of that.

For me, a test of whether something is too restrictive of expression, is whether it seems too restrictive when I apply it to an issue I feel strongly the other way about.

For example, I argued that homophobic demonstrators should not be turned away at the Canadian border because god-hates-fags signs are visible in their car, because I would not want gay rights demonstrators heading to California to protest Prop 8 turned back at the American border because of their pro-gay-marriage signs.

Yeah, from some perspectives one of these is about hate and another about love, or one is about curtailing rights and another about expanding rights, but perspective is not universal. And I certainly cannot assume all lawmakers and border guards do or will share my perspective. It’s hard to think of one, but I’m sure there’s a way, now or in the future, that Internet sites I believe in could be charged as hate-promoting.

Back to Sec 13 of the Canadian Human Right Act, and the Tribunal’s decision that it’s unconstitutional. Is this a good ruling? I think so. Will it “stick”? I don’t know. It seems unlikely that parliament would repeal it. It seems unlikely that the Tribunal will enforce it? It also seems unlikely to me that Warman will just let it lie in limbo for too long. There is an “out,” an escape route of sorts, in the fact that there is criminal code (sec 318 & 319) that also outlaws hate propaganda, making the human rights code sec 13 somewhat redundant (although I think the barriers to criminal code prosecution may be higher). Maybe the politicians will be able to “eliminate redundancies” by removing sec 13(1) without looking like neo-nazi supporters?  Twill be interesting to see in the days to come…

-Greyson

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Filed under censorship, government, Intellectual freedom

Free Speech and Patron Privacy are Corequisites for Intellectual Freedom

The book

So you’ve probably heard about this library assistant (Sally Stern-Hamilton, aka Ann Miketa) in small-town Michigan (Luddington) who wrote a fiction book (“Library Diaries”) based upon her accounts of library patrons, and published it under her maiden surname at a vanity press. The book doesn’t sound all that original or like it’s anything that should garner international attention. However, the scandal that has ensured over the book has brought the book, author, and little town in the Midwestern US, into the spotlight.

n.b. I was hesitant to write about this kerfuffle at first, as I think the attention only serves the author’s book sales and it’s not a book I personally care to promote, but on balance I decided that discussion of the issues of free speech and privacy that underlie the news are worth it.

The disciplinary action

After the book came out, the author was suspended from her job, with a letter that stated, (presumably among other things):

“The cover of your book includes a picture of the Ludington Library. Each chapter is devoted to a specific library patron or patrons. Your book portrays these people in a very unflattering manner. You describe individual patrons as mentally ill, mentally incompetent, unintelligent, and unattractive. You label several as ‘perverts.’ While you stop short of naming the individuals you targeted in your book, your detailed descriptions of their unique characteristics and mannerisms make them easily identifiable in our small community.”

The author response

The author has gone public, with such statements as,

The absolute irony is that the public library is a pillar of free speech and leads me to wonder why the administration is so upset.”

It should be noted that at the same time, this author is railing against

instances of known sex offenders using library computers to view pornography.

indicating that she perhaps disagrees with the notion that the library should be “a pillar of free speech” at all. Or maybe she thinks intellectual freedom can be a one-way street, push-only, and not inclusive of access to informationHold that thought.

The public response

Varies greatly.

Local newspaper comments calling the author a “loose cannon” and saying that the book’s characters are easily identifiable community members, are mixed in with someone who thinks there is a Muslim running for President of the US.

Conservative viewpoints are defending the author’s whistleblowing about libraries giving sex offenders access to the Internet, in the name of protecting our children.

The Annoyed Librarian theorized that the author was fired not for betraying patron privacy but for criticizing her superiors.

The issues

Leaving aside questions of literary merit, this situation highlights some oft-confused aspects of free expression and intellectual freedom: namely that free speech is but one element of intellectual freedom, and that library organizations – for instance the ALA – tend to try to strike a balance between privacy, access and free expression in order to promote the package we call Intellectual Freedom.

Patron privacy and confidentiality is an essential element of ensuring access to information. Privacy is as essential as anti-censorship in assuring intellectual freedom. (Hmm…why hasn’t a “Privacy Week” caught on the same way as “Banned Books Week” or “Freedom to Read Week”? I would say something about USA PATRIOT but this really goes back much farther than that…something for me to ponder)

If a library user fears ridicule, exposure or public humiliation due to his question, mannerisms, health history, or criminal record, that patron is not actually being provided with the access to information we hold. The beginning of that ALA Library Bill of Rights reads:

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves.

It later states that:

Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment.

clearly indicating that resistance of censorship, and promotion of free expression, are one facet of the great goal of providing access to information (and nirvana).

By threatening patron privacy – be it by complying with a warrentless library search,  or by writing a thinly veiled exposé of the “perverts” in your library, a library worker is eroding intellectual freedom, no matter how loudly she may insist that the privacy threat was made in the name of “free speech” (or national security, “for the children,” etc.).

The “Library Diaries” author has posted an online rant:

“Whats going on in this world? I have not been able to find one lawyer to make a First Amendment (Freedom of Speech, Press) case or even a whistleblower case.”

I suspect this is because the lawyers she has consulted have a stronger grasp on the concept of free speech than she does. In addition to free speech being one part of the intellectual freedom balancing act in the information world, there are legal limits on free speech as well. Defamation (for example libel, which may or may not have occurred in this book) is a legal restriction on freedom of speech in the US.

Many professional codes of ethics restrict professionals’ free speech, but this is not a constitutional violation because employment in that field is voluntary. Would a doctor being fired from a hospital after publishing thinly veiled accounts of her patients’ weird and embarrassing health issues cry “free speech”? I suppose she could try, but I doubt she would she get as much support as this library worker is getting.

Lori Basiewicz has written an interesting and useful USAmerican take on what free speech and censorship are and are not. Basiewicz blogs that while it is possible that the author may find a lawyer to take on a wrongful termination suit (depending on what the exact reasons for her termination were), the library has done nothing to prevent publication or dissemination of the book (which could be considered censorship, although probably would not technically infringe on the author’s First Amendment right to free speech), and her claims that the book is fiction make the whistleblower argument pretty weak. I tend to agree.

The Profession

Some of this muddle relates to our confusion as to the role of libraries. Are library workers trusted professionals or information waitresses? Is our job to check books in and out, or is it to build and protect free information infrastructure for the public? The profession cannot fully resolve these questions internally, so it should come as little surprise that the public doesn’t know how to regard us either.

You don’t have to be a MLIS-type librarian to run a library, and you don’t have to believe in the ALA Code of Ethics to be a librarian. Library assistants and other “para-professional” or non-MLIS library staff are integrated and accepted in a very spotty manner, into the ALA-type library world. These are core professional issue that we seem thus far to have been unable to resolve, despite being a fairly ancient profession.

That said, the ALA Code of Ethics is generally seen as setting best practices and standards for libraries in the US, and it seems pretty clearly violated by the book at the centre of this current storm. The first three items are clear enough:

· We provide the highest level of service to all library users through appropriate and usefully organized resources; equitable service policies; equitable access; and accurate, unbiased, and courteous responses to all requests.

· We uphold the principles of intellectual freedom and resist all efforts to censor library resources.

· We protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.

that it seems almost unnecessary for me to also add in item #6:

· We do not advance private interests at the expense of library users, colleagues, or our employing institutions.

So…

For me the question is one of our profession and coordinated messages. Maybe the author involved in this brouhaha knew she would likely get fired for the book, and didn’t care. Maybe she saw her mission to expose the “characters you never dreamt were housed at your public library” as important enough to risk the job. If so, that’s her choice to make (much as some might wish she would not make it), and all choices in life have consequences. However, if she is really as uninformed about free speech and the library’s role as she appears in the sound bytes, I have a concern about our profession.

After working in a library for 15 years one would expect a better grasp of the concept of intellectual freedom. Some might argue that she was “only” a library assistant, but that’s who most of the public has the most interaction with, in many libraries – it is essential that such library workers are educated in core professional ethics. We need to act on two things if we want to reduce such confusion:

  1. Hit more clearly on our core value messages; make sure all library workers understand and can teach the public what intellectual freedom is, and
  2. Better integrate non-MLIS library workers into our professional organizations

– Greyson

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Filed under censorship, Intellectual freedom, LIS education, Other blogs, privacy, public libraries, The Profession