|Censorship, Logocracy and Democracy
Arguably, there are two main traditions of thought about free speech.1 One involves assessing the consequences that might flow from restricting or permitting freedom of expression. Thus, according to Mill, allowing freedom of expression does more to promote the good or ‘utility’ than allowing censorship. By ‘utility’ Mill means “utility in the largest sense, grounded on the permanent interests of man as a progressive being”, and permitting freedom of expression promotes this goal.2 Others have argued that not all forms of free expression can be justified in terms of promoting the good.3 This debate is explicitly consequentialist in its reasoning because the question of freedom of expression resolves to the question of whether permitting it tends to promote the good. The other tradition turns on the notion of ‘rights’ where freedom of expression is conceived of as a right held by individuals against governments. Proponents argue that this right should be honoured, even if in doing so, less aggregate good results.4 Thus Ronald Dworkin says, “when someone claims a right of free speech, for example, then it would be wrong for the state to prevent him from speaking on some matter even if the general welfare would be improved by preventing him from speaking".5 Even when the debate is located within the realm of rights the matter is not closed, as opponents have countered that without certain types of censorship the rights of some groups (e.g., women and minorities) will be violated.6
A less traveled path is to connect the issue of freedom of expression directly with democracy, not through intermediary notions such as ‘the good’ or ‘rights’.7 The argument I shall make is in this tradition. I will argue that there is a logical contradiction between a certain understanding of the democratic commitment to free and fair elections and certain types of restriction of expression.8 We will work with Canada’s “hate speech laws” as our example, but it may well apply to other jurisdictions and other types of content censorship.9 To make the case, we will need to distinguish between ‘multilateral censorship’ and ‘unilateral censorship’. The former silences all opinions on some subject matter; the latter silences a single view. I shall argue that multilateral censorship is compatible with democratic rule, but unilateral censorship is not. Applying this distinction to Canadian hate speech laws will reveal that they are a form of unilateral censorship. I will then argue that multilateral censorship is so unappealing that the only significant choice is between permitting freedom of expression or logocratic governance: legislating political inequality through content restrictions on speech.
Before proceeding, I should note that for the first half of this paper, the term ‘democracy’ (and its cognates) is used interchangeably with the procedural requirement of equality in the electoral process, specifically a ‘free and fair vote’ (and its cognates) and competition among candidates. This understanding of ‘democracy’ is admittedly much narrower than is often used in connection with contemporary polities, for example, most would probably add further conditions as to what might count as a ‘democracy’, such as adding a list of individual rights, a market economy, a fair and effective judicial system, etc. In the second half we will discuss the relation between democracy and free and fair elections. As we shall see, it is possible to wonder whether the definition above is also too broad because doubts might be raised as to whether free and fair elections are strictly necessary for democracy.
Rex Versus Demos
The suggestion that there is a connection between Canada’s hate speech laws and democratic elections may seem puzzling given the historical circumstances surrounding the framing of hate speech laws in Canada. There are obvious and agreed-upon cases where elections are not free and fair, e.g., instances where the incumbent arranges for a lack of polling stations in areas known to be favourable to the opposition, and the use of military force around polling stations to intimidate or otherwise coerce the electorate. These are tried and true means to ensure elections are not free and fair. However, Canada’s original hate speech legislation was passed in 1970, and there is no particular reason to think that the electoral process in this period was not free and fair. Furthermore, a number of federal elections have been held since, with several changes of government, and so it seems there has been plenty of opportunity to repeal the legislation via a free and fair vote. So, admittedly, the claim that Canada’s hate speech laws undermine free and fair elections looks implausible. However, I hope to show that even if we grant that some piece of legislation (such as hate speech legislation) is passed in a free and fair election, this is not sufficient to show that such legislation is democratic, for a democratically arrived-at decision can lead to undemocratic results. I will argue further that certain types of restrictions on speech lead to undemocratic results.
To make our argument, it will help initially to abstract away from the complex political arrangements of modern state democracies including notions such as individual rights. Let us then consider a somewhat fanciful example: imagine three hundred shipwrecked individuals found themselves washed-up on a deserted island. At a meeting attended by all it was decided that they should adopt some form of government. A debate ensued over whether they should institute a monarchy or a democracy, with two individuals emerging as particularly impassioned and persuasive. Rex argued for the idea of a monarchy based on the premise that a democracy is a luxury the castaways simply could not afford. According to Rex, democratic decisions take too much time, and are open to compromise in a way that undermines the ability to make tough decisions. In response, Demos said she was not proposing a system of democracy that protects the rights of an individual against the interests of the majority, and so there was every reason to suppose that the tough decisions could be made.10 So long as decisions or rules received a democratic majority, she and her fellow supporters would abide by the will of the majority. Demos acknowledged that democratic decisions may take more time, but she was concerned about a moral principle underlying democracy: it ensures political equality: everyone is provided the opportunity and dignity to participate as equal legislators in the life of the community, that is, everyone is given an equal chance to say how the community is governed. In this respect democracy differs drastically from a monarchy where the voice of one is pre-eminent, and oligarchies where the voices of some are pre-eminent. Demos asserted that she and at least a couple of dozen others felt so strongly about this moral principle—equal opportunity for political representation—that they were willing to take up arms against any who would attempt to institute some other form of government. Rex and his supporters conceded that any advantages of a monarchy would be outweighed by the costs of a civil war with Demos and her followers. So, it was agreed by all that they should form a democracy where a simple majority vote would decide what would be done and what rules would be observed.
While Rex had lost the first round, he was not out. His next move was to propose the “Rex-is-right law”: anyone who did not vote with Rex would be summarily shot. Rex noted in passing that Demos was in no position to complain that such a policy would violate the rights of individuals, e.g., the right to life, or a right to trial, because it was agreed that individuals had no such rights. The motion was carried: 151 in favour of Rex-is-right legislation, and 149 against. (Apparently the law would not be applied retroactively, so no one was executed).
Not surprisingly, there was unanimity on subsequent votes. People would passionately debate an issue, but when it came to the crunch of a vote, everyone voted with Rex. A week later Rex remarked to Demos that he had to admit that she was in fact correct all along: democracy is a very good thing. Demos replied that it was farcical to call their system of government a democracy. The threat of death prohibited people from casting their vote in a manner consistent with a commitment to democracy. Demos said that the appropriate way to understand what transpired a week earlier was that people voted to make Rex a monarch. One of the virtues of democracy, according to Demos, is that it allows for the possibility of transforming to non-democratic governance in a peaceful fashion. It is true that the group still performed the ritual of voting on issues, but votes at this stage could not be properly called a democratic vote. To say that the vote was made in a democratic manner was as absurd as if Rex’s henchmen were to cut off the hands of those that didn’t agree with Rex and raise the severed hands saying, “Look even our opponents’ hands are raised in agreement”.
The case of Rex and Demos is intended to remind us that the mere formality of counting votes is not sufficient to say that the democratic process of a free and fair election has been respected. A precondition for a free and fair vote is the absence of the sort of coercion described in this example. We should also note that the fact that legislation is passed in a manner consistent with democratic rule is not sufficient to say that the legislation itself enacts conditions that preserve democracy. In other words, wittingly or unwittingly, members of a democracy may democratically vote to move to something other than a democratic form of government. Indeed, this is what happened in the vote on the Rex-is-right legislation: there was nothing in the description of what transpired to suggest that the vote did not respect democratic procedures, but subsequently they no longer had a democracy. So, in passing this legislation, the marooned moved from a democratic form of government to an undemocratic form of government. The vote made Rex the de facto (if not the de jure) king.
With these points in hand, I want to argue now that voting for a certain form of censorship yields an equivalent result, namely, it is a vote to usurp democratic procedures. Let us return to our fledging “democracy”. Rex, not being an unreasonable man, was persuaded that decisions arrived at under the threat of physical violence were not consistent with democracy. Rex proposed to rescind the Rex-is-right law and the castaways passed the motion. Inspired by the censorship laws in his native land, in its place he proposed the “don’t-contradict-Rex” law. This legislation was designed to make it illegal to speak against any legislation Rex would like to see enacted. The penalty for speaking contrary to Rex’s view was two years of confinement. The don’t-contradict-Rex law was passed with a small majority.
The effectiveness of this censorship legislation became apparent when there was a complaint by some that the community should be working harder to return to civilization. Rex did not like this idea one bit, so he proposed the “community-integrity law” that would make it illegal to attempt to leave the island. Rex and other proponents of this legislation made eloquent public speeches arguing that the law is in part for the protection of those individuals who would foolishly risk their lives in attempts to leave the island. Such attempts, it was argued, would be dangerous and likely to end in failure. It was maintained also that in such a small community every individual was important for the survival of the community as a whole, so any individual who risked her life in attempting escape put the community at risk. Finally, proponents argued that their new life was much better than their former lives. A vote was taken and the community-integrity law forbidding any emigration was passed by a majority of 151 to 149.
When they next had an opportunity to discuss political philosophy, Rex suggested that Demos should be pleased: with the threat of violence gone, the democratic process had been restored, that is, people could vote their conscience without having to worry about reprisals. Demos conceded that the don’t-contradict-Rex law was passed in a manner consistent with the democratic process, but argued the passing of the censorship law entailed the usurping of the democratic process, just as surely as the Rex-is-right law usurped the democratic process. Demos argued that this was obvious from the recent vote on the community-integrity law. The effect of the threat of physical coercion with the Rex-is-right law was to ensure that people voted with Rex, which was exactly the effect of the don’t-contradict-Rex law. After all, the point or effect of allowing expression in support of Rex’s view, but none against, was to make sure that people were more likely to vote with Rex. For example, it may not have occurred to many in the community that unmanned rafts inscribed with pleas for help could be sent out with little or no risk to the population, or that many of the community were so dissatisfied with their new lives that the possibility of death was worth the risk. If they heard only the community-integrity view they may never have learned of these arguments, and these arguments could have easily affected their decision. This form of censorship provided preferential treatment for Rex’s view. This violated the requirement of equality in the electoral process: legislation made Rex’s political voice pre-eminent. By limiting expression in this way, what Rex achieved was the replacement of physical coercion with mental coercion. As a result, the electoral process could not be considered free and fair.