Tuesday, 22 August 2017

Equivocation between Legal Free Speech and colloquial Free Speech

All my ranting about free speech is unhinged and disconnected from reality, but probably not as unhinged and disconnected from reality as the defense of free speech that is invoked when we talk about nazis. People have to realize that their common language argument about whether to censor nazis doesn't look much like the legal reality that would implement that argument.

Free speech advocates say there is a slippery slope between saying "nazis aren't entitled to free speech" and saying "Trump voters aren't entitled to free speech." This would be a great argument against someone proposing to create a constitutional amendment to the Charter of Rights and Freedoms or the Bill of Rights to clarify that free speech rights are not given to nazis. But no one would ever draft or pass such an amendment.

When the public debates something, the public debates it in terms close to their hearts. So a person saying they don't think nazi websites should be hosted by DNS services is taking a feeling they have and communicating to us they best idea of what they would like done to address that feeling. That doesn't necessarily mean they want that thing done, they want to feel the wrong they sense has been righted.

In Canada all rights are explicitly balanced against the public interest. The government can invoke section one of the charter and pass a law that violates the rights granted in the charter is they argue it is necessary for them to do so. Thus, in Canada when someone threatens violence against another person, they can't claim that they were exercising free speech because the right to free speech is outweighed by society's interest in having people not threaten one another.

In the US, as I understand it, there is no such balance to be made. The free speech right can't be violated. That leads to a kind of legal pretending in the US, where they say that some things you can say simply aren't "speech" in the sense that is meant in the constitution. So you still can't make a freedom of speech claim if you threaten someone, because a threat is not protected speech.

So if someone wanted to make marching with nazi flags illegal in the US, they would argue that promoting genocide ought not be considering protected speech for the same reason that incitement to commit a crime is not considered protected speech. They would then argue that waving a nazi flag is promoting genocide. There wouldn't be a novel legal argument or a whole new structure for making exemptions to the first amendment, there would just be a fairly common sense idea that the nazi flag stands for "we ought to be killing Jews" and that doesn't deserve more legal protection than "we ought to be killing people in terrorist attacks," which is already not protected.

So while I advocate extreme and crazy points of view on this blog, a person calling for a ban on people marching around with Nazi flags is not really calling for anything extreme at all. I think you could argue that such a ban would actually be more consistent with existing exceptions to protected speech than the current lack of ban is.

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