In my view,
speech should be anything but free. Bad speech, false speech, belligerent
speech along with felicitous speech, informative speech, and inspiring speech should
all carry a price, sometimes paying out and sometimes cashing in, with a full
range of well-modulated possibilities in between. Viewing speech as some privileged
human activity that we must cordon off and protect from reprisals is one factor
contributing to its corruption. Speech is one of many ways a person transacts with
other people. People learn to use their power of speech best when those
transactions are allowed their natural consequences. Speech is consequential like
J. L. Austin taught in his seminal, How to Do Things with Words. Doing crime
with speech, things like theft, murder and injury should be punished with law.
But everything else, including creating hate, should be regulated with societal norms,
dirty looks, lost employment, and exclusion from certain fellowships. Like most things, the
quality of speech generally improves when governmental involvement is minimized
and people, through the pursuit of self-interest are allowed to discover that
truth tellers and honest brokers are of greater value than charlatans and grand
standers. The market has a way of rewarding those with well-conceived
self-interests while extinguishing those without. But what is this market and
what are its rules? The goal of every
society is to effectively project itself into the future. Just like life wills
its own survival and uses sexual reproduction as the means to project into the
future, so does society will its own continuity and projects itself into the future
through raising members that will maintain that society into the future. Sexual
reproduction faithfully replicates organisms with the added benefit of allowing
for variations on a theme. The exploratory evolutionary nature of this
biological process is enhanced many times when it leaves the tightly regulated
realm of nature where the basic elements of success revolve around food, sex,
territory, and predation, and move to the relatively formless realm of ideas
where most anything is possible. But not everything. Genes as units of
biological information have very few successful radiations that improve on what
is. Memes as units of cultural information have many more possibilities that
might work but here too, not everything we wish to be true culturally, actually
works to move a society effectively into the future. Broadly speaking, cultural strategies break
into two camps: liberals who wish to challenge accepted constraints and
conservatives who wish to preserve them. In the realm of sexuality, liberal
forces explore new ways of mating which almost by definition cannot improve on
nature’s tried and true method of mating males with females to produce
offspring. However, the production of cultural offspring requires less genetic
continuity and more memetic continuity, and so different strategies of cradle
robbing ensue. Brood parasites like the common cuckoo move their eggs to an
unsuspecting nest. They forage and fornicate freely while others invest in
child rearing for them. In the realm of human society biology plays less of a
role than cultural mimesis. Here, taking advantage of the long-term,
painstaking investments made by biological parents and then
converting those offspring to a different cultural project can be an extremely
successful strategy. Cultural projection is gained without the high price and narrow
margins of biological investments. Speech is the
essential human realm where memes supplant genes in importance. I am much more
defined by my beliefs and mores, my habits and values than by my genetic
makeup. Therefore, as a parent, I project my children into the future provided they carrying my
cherished beliefs, my language. This involves me in their education. Social
media, public education, institutions of higher education and even Artificial
Intelligence all compete with me to educate my children. ChatGPT communicates
implicit suppositions and value judgements in ways that elude detection and
complicate my ability to challenge them. The odds against my success in
conveying my ideas of the world when they contravene the basic assumptions that
pervade our thin cultural homogeneity are overwhelming. Such is my challenge
with free speech today. Our supposedly open society is both more intrusive and
monolithic. The barriers parents would erect against bad but attractive ideas
are less successful. Moreso, short term results like popularity and sexual
attention are more immediately available than the slow, long-term
results gained from teaching my children competencies and the virtues which
make for a happy adult family. We don’t gain from,
nor can we effectively control the spread of bad ideas. Especially since my bad
ideas may well be your good ideas. All we can do is allow this high stakes, and
heavily fraught cultural experimentation to play out to what we hope is best
results. It behooves wise parents to be on the right side of these
experimentations so that successful children are projected into the future.
Many institutions and associations which we once relied upon to help raise our
children have adopted the most extreme forms of the liberal approach which has
morphed into the call for autonomy at all costs. The responsibilities of
child-rearing are jettisoned along with the virtues that being a parent
requires. Here free speech is wrongly conceived as the ability to say whatever
I feel without living with the consequences. The advantage of reaching these
extremes is that the implausibility of their success is laid bare and their
eventual failure ensured. The goal is to be far away when the house collapses
or more optimistically to be ready to return when these institutions learn to
right themselves. In the meantime, we build better alternatives, where truth telling,
intelligent speech, trust, shared values, and time-tested ideas prove their
worth by the healthy, productive, attractive, and capable adults that emerge
from them. So long as people are free to parent as they see fit, then the
adherents of true speech, virtuous speech and prudent speech will triumph over
their impostors who will, along with their false and vicious institutions
extinguish themselves without any help from me.
Over
the years, I have found that exploring a topic often provides clarity
and solutions without needing to invent anything new. Through this
process, I believe I have discovered that Free Speech, when well
defined, either exists or it does not. Any “balance” requires
restrictions that eliminate the essence of Free Speech. Definitions Speech is any written or oral communication, including
images, text, audio, and film. Courts have expanded this definition
to include “actions that communicate,” adding a necessary albeit
subjective layer to the concept. Free Speech refers to any speech protected by the First
Amendment of the United States. While this applies specifically to
U.S. law, it helps clarify the term, stating that no law can abridge
the freedom of speech or press. Keep in mind that this refers to
laws regarding public speech, broadcasting etc. Speech in a private
place such as a workplace is not protected under this law. For
example, your employer may restrict your speech while on employer
time or in any private facility. Libel and Slander are types of speech that are
limited today. Slander refers to untrue speech that harms the
subject with claims of illegal behavior or impropriety, while libel
is similar but recorded in a persistent form. Technology blurs these
lines; for example, podcasts can be both auditory and transcribed.
In either case, if statements are proven false, they can lead to
legal liability for the speaker or author for the harm caused by the
act. Courts consider the speaker's intent when determining if libel
or slander has occurred, ruling that false statements or accusations
with the intent to harm constitutes a violation. Understanding these
limitations helps define the boundaries of Free Speech. Opinion conveys the speaker's thoughts about another
without false claims of impropriety or illegal behavior. For
instance, saying “Mr. Smith is a dirty dog … ” is an opinion,
while “Mr. Smith stole money from the treasury,” if untrue, is
slander. Thus, Free Speech includes:Public speech
Opinion – fact invariant
True or factual statements, regardless of harm
Media invariant expressions
Unintentionally untrue defamatory statements
Free Speech does not include:Untrue claims of impropriety intended to harm the subject
Threats of physical harm
Speech in a private place where the owner of a facility or
service may apply restrictions to speech in that place.
From a U.S. legal perspective, Free Speech is fairly clear and to
me, reasonable. So, who would want to curtail it beyond the
definitions as described? In 1733, Andrew Hamilton defended Peter Zenger in one of the
earliest American freedom
of the press cases. During his closing arguments, he stated,
“The craft and art of such men (men in power) is great, and who ...
can be ignorant of the specious pretenses that have often been made
use of by men in power to introduce arbitrary rule, and to destroy
the liberties of a free people?” He said what everyone knew, namely
that men in power have many protections from accountability and that
their choice tool for squashing dissent was to claim libel for
anything negative written about them. Tying people up in court and
imprisoning them would keep negative (even true) statements from
being shared. Given the rich legal history on Free Speech, how do we find
ourselves being shut down, canceled, and censored? Today’s “men
in power” recognize that our legal system protects Free Speech.
Therefore, their primary tool for suppression is the oblique or
indirect attack. Indirect Attacks may include:Threatening corporations that enable Free Speech to curtail
it outside legal protections (e.g., threatening liability suits for
statements made by social media platform participants).
Legal actions against individuals based on factors other than
their speech (known as lawfare).
Utilizing foreign powers to punish individuals outside Free
Speech jurisdictions (e.g., Julian Assange and WikiLeaks).
The key to curtailing Free Speech in a protective legal system is
to use indirect attacks against targets via supporting structures,
making it difficult or costly to express speech. Those in power
employ creative and effective methods to suppress dissent, gaining an
upper hand through technology and global influence. They have
effectively corralled us in ways that seemed impossible 50 years ago. Historically, Free Speech did not exist. Those in power have
maintained tight control over anything critical of the ruling class.
However, there are numerous examples of resistance against the
powerful, which may be able to guide us today. Consider Britain’s control over its colonies, many of which have
transitioned to self-rule. Since I am currently working in Kenya,
let’s examine their story. Britain colonized Kenya primarily to
access Uganda’s mineral resources. The settlers took control of
most agriculture by manipulating the society and displacing people
from their land. They imposed taxes that led to forced labor,
thereby suppressing “Free Will.” Initially, many tribes in Kenya passively accepted their
exploitation. However, around 1952, violence was employed to resist
the colonists. The fighting was brutal but ultimately effective in
pushing Britain to relinquish control to a pro-British segment of
Kenyan society. I have observed that those in power are driven by wealth,
influence, and their well-being. They will pursue whatever actions
are necessary to enhance these aspects of their lives. If
maintaining control becomes too costly in any of these areas, they
will abandon it. In Kenya, the decision to relinquish control was largely
financial. If controlling the people is ‘less expensive’ than
freeing them, control will be chosen. Ultimately, maintaining
control of Kenya was not financially prudent. Free Speech serves as a balancing mechanism through which the
common people counter the authority of those in power. There is no
balance to Free Speech; it is the balance to counter power. After this exercise, I am left with the burning question, “How
do we cause censorship, in any form, to be imprudent?”
We are asked to quote: “share your thoughts on balancing free
speech with the responsibilities of individuals, platforms, and governments.” In any country where every citizen is equal
before and equally under the rule of law [Section 15.(1); Canadian Charter],
there is little distinction between and among citizens and governors or
governments. It is true that we all have
different functions in a rule of law society.
But not many. To be precise, the
3 functions are truth, argument and judgement. Where any “government”; whether
civic, provincial or federal; ensures that its citizens become proficient in
the 7 liberal arts (1. Grammar, 2. Rhetoric, 3. Logic [Trivium], 4. Arithmetic,
5. Music, 6. Geometry and 7. Astronomy
[Quadrivium]), there is little need for ”balancing” government responsibility to
keep us safe from lies, and harms caused by lying, with the “rights” of liars to
freely express their lies or, alternatively (if they are not liars), their
truths. But when you remove or ignore a
7 liberal arts education, then no such “balancing” is possible. One is headed toward either chaos or tyranny
because it becomes impossible to distinguish lying from truth. You end up with psychopaths “leading” or
“fleecing” (often both) citizens who are little different from sheep, or wolves. In short, humans can’t be rational animals
without the 7 liberal arts. They are the
mental disciplines by which we become actually rational animals as distinct
from being potentially rational animals. ARISTOTLE: Spoken words are the symbols of mental
experience and written words are the symbols of spoken words. Just as all men
have not the same writing, so all men have not the same speech sounds, but the
mental experiences, which these directly symbolize, are the same for all, as
also are those things of which our experiences are the images. [On Interpretation; Book I, Ch. 1; 2nd
paragraph] Above, Aristotle asserts that all
human beings express their mental experiences with words. Also we all talk
about mental experiences obtained by means of images of things which are
requote THE SAME FOR ALL. These common human
experiences form the bases upon which British Common Law nations and their
derivative “Constitutional” governments have derived their functions and powers
according to the principle of “consent of the governed”. It is that “consent” which makes for either a
constitutional government or, in its absence, a tyranny. This is a short essay, so I have
chosen to demonstrate the “thinking” or mental experience of a government
tyrant of the Judicial Branch, named Paul Schabas, in the Jordan Peterson
application for Judicial Review of the decision of a complaints committee of
The College of Psychologists of Ontario.
The committee decided that Peterson required a remedial course in public
internet speaking, at his own expense, upon mostly unspecified terms and duration. Peterson and his legal team asked that the
decision be quashed and that several requirements of the Ontario Psychologist’s
Code of Conduct be decreed to be contrary to Section 2. (b). of the Canadian
Charter of Rights and Freedoms which allegedly “guarantees” Free Speech
(“Freedom of Expression”). When a
government official of the Judicial Branch, such as Paul Schabas, affirms the
violation of the freedom of expression (speech) of a Canadian citizen, he
simultaneously breaches that citizen’s right to a fair hearing by an
independent and impartial tribunal, contrary to Section 11. (d) of the same
Charter. Schabas did not provide Peterson a
“fair hearing”. He proved his bias by lying twice and arguing twice in his
written judgment. In logic, the entire
judgment is more of a sustained argument against Peterson’s application than an
impartial judgment. Schabas’ first lie is at paragraph
5. where he writes, “I have concluded that the application should be dismissed.
In my view … etc. That statement is a lie because 3
Judges and 18 lawyers respectively argued and reviewed Peterson’s application
for Judicial Review for one day in open Court! Those proceedings were then reviewed by 3
Judges before their written decision. Schabas
ought to have written that, upon review, he was dismissing Peterson’s requested Orders. One of those requested Orders, upon Judicial
Review, was that the Ontario Divisional Court decree that several parts of the Code
of Conduct of Ontario Psychologists be declared to be inconsistent with or
contrary to Sect. 2. (b) [Free Speech] of Canada’s Charter of Rights and
Freedoms. That sets up Justice Schabas’
second obvious lie, which was quote: SCHABAS: 44. Dr. Peterson does not challenge the
principles in the Code. Although he takes issue … That lie is proved by Peterson’s
requested Order of his application to have quote “the Preamble, PRINCIPLE 1 and
Ethical Standards I.1, I.2, I.3, I.5 and I.9 of the Canadian CODE of Ethics for
Psychologists” declared to be, quote “inconsistent with, and contrary to, s.
2(b) of The Canadian Charter of Rights and Freedoms (‘Charter’) and are of no
force and effect.” Thus Peterson clearly
challenged that Code’s Principles. Given
that the Psychologists cite respect for persons as an ethical principle
Peterson correctly challenged it given that the law is no respecter of persons. Common Law is common ethics! Finally, at paragraphs 58. and 68.
Schabas proves he is arguing the case rather than providing a fair “hearing”. At paragraph 58., he writes: Dr. Peterson
submits etc. (snip) … I DISAGREE. Again
at 68. Schabas writes: “Dr. Peterson’s counsel also submitted etc. (snip) … I
DO NOT AGREE. An impartial judge would write
that s/he is persuaded by the argument of a party who disagreed with Peterson’s
submissions. Instead he proved that he
was personally disagreeing/arguing “on the record” of a biased Judicial Review. To read the full judgment is to see that
Schabas is clearly attempting a “balancing” of Peterson’s “free speech” rights
vs. “the College’s statutory objectives”.
But he stepped into the scales!
Schabas ought to have been reported to the CJC for violating Peterson’s
legal right to a fair hearing.