Book review: “Freedom From Speech” by Greg Lukianoff

[originally posted at Canadian Lawyer]

It used to be that people waited until they were actually offended to take action against something that offended them, but Carleton University student Arun Smith has no time for such details. When a “free-speech wall” upon which anyone could write any opinion was erected at his school last year, Smith promptly tore it down. When the wall went back up, he did it again.
Smith was unapologetic about his actions, declaring on his Twitter feed that, “Not every opinion is valid, nor deserving of expression.” When CBC journalist Kady O’Malley argued that this isn’t his call to make, Smith responded, “just watch me.”

Greg Lukianoff’s Freedom From Speech, an entry in the “Broadside” series issued by the conservative publisher Encounter Books, shows how this attitude is depressingly common on American college campuses, with implications for the world outside of the university — including the legal system.  As the Smith case illustrates, this attitude is depressingly common in Canadian schools as well.

Lukianoff is a representative of the Foundation for Individual Rights in Education, which monitors and takes legal action against censorship and suppression of speech in American post-secondary institutions.

Unfortunately, his organization has been particularly busy in recent years, as restrictive “speech codes” proliferate and students mobilize against speakers whose views are apparently so repugnant that no one should be allowed to hear them.

Conservative personalities initially made up most “disinvitation season” targets, but as these things are wont to do, before long more liberal (but insufficiently liberal) speakers were hounded off campus, assuming they weren’t disinvited beforehand. Off campus, meanwhile, the likes of celebrity chef Paula Deen, MSNBC host Martin Bashir, and Mozilla Firefox designer Brendan Eich saw their careers torpedoed by the outrage patrol, sometimes for incidents or comments made years beforehand.

As Lukianoff acknowledges, where governmental agencies or institutions aren’t involved, these aren’t constitutional violations as defined by the First Amendment. People do, of course, have every right to express their distaste with someone’s remarks or actions, and refuse to patronize businesses which employ that person.

But the attitude implicit in these campaigns — that people have a “right” to be protected from material that may offend them — seems to be spreading and it has serious implications for the legal system and our system of government.

In some European jurisdictions, for example, a “right to be forgotten”  — mandating the removal of information about certain people from the Internet — is being awkwardly implemented. And much of the world is seeing a revival of laws against anti-religious “blasphemy,” with potentially disastrous consequences.

Lukianoff convincingly argues that the “right” to be free from offence is a pernicious concept that universities — institutions supposedly dedicated to the pursuit of truth, freewheeling debate, and challenging of old assumptions —- should be fighting against. Instead, they’re the incubators.

Interestingly, Lukianoff also points to a “problem of comfort” largely brought about, paradoxically, by the abundance of media outlets available on the Internet and cable television. If you’re a political conservative, you can get all your news from right-leaning outlets like Fox or the Daily Caller, rarely having their fundamental beliefs challenged. (For left-wingers, replace Fox or the Daily Caller with MSNBC and Salon.com.) And when you get most of your news from one perspective, you’ll have that much harder a time handling news from another, opposed point of view.

How much of this is applicable to Canada? Well, with a handful of exceptions like the little-watched Sun News channel, our homegrown media outlets aren’t as politically polarized as those in the U.S.; on the other hand, in Canada, freedom of expression is culturally and constitutionally less sacrosanct. Either way, Arun Smith isn’t alone.

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Film Review: “The Hunt”

[originally posted, with a few editorial changes, at Canadian Lawyer]
 
A curious anomaly in our justice system; the offence with the most severe penalty under law is not the crime toward which most people feel the most personal revulsion.
Maybe most of us will concede a situation, however remote the possibility, where we would take the life of another person. Taking away the innocence of a child, however, seems uniquely evil and incomprehensible. One who sexually abuses a child may not spend the rest of his life in prison, but the stigma that accompanies the offence is unparalleled.

Now, imagine being falsely accused of this unspeakable crime, especially when your livelihood depends on working with children.  That’s what happens to the main character in the Danish film Jagten (The Hunt), a nominee for Best Foreign Language Film at the most recent Academy Awards.

 
Lucas, played by Mads Mikkelsen, is a kindergarten teacher accused of molestation by one of his students. In reality, the little girl — who had latched onto her trusted teacher while her parents constantly fought — was upset about a perceived slight by Lucas, but in reality had been briefly shown a pornographic picture from the Internet by her older brother and his friend. But in a moment of anger, she told her principal that Lucas had shown her what she saw in the photo.

Little Klara (portrayed by then-seven-year-old Annika Wedderkopp, who had never acted before but proved to be a natural) subsequently admits she made it up, but the damage is done. School officials ask her leading questions about what “really” happened, and soon the allegations spread throughout this small Danish community. Then other children, perhaps pushed by hysterical parents and officials, come up with their own horror stories.

Lucas is forced from his job, ostracized by his community, and hauled into court. I had hoped that The Hunt would show us more about how the Danish justice system works, but the film is really about the effect these allegations can have upon a trusting community, and how a false allegation can destroy a life.

 
I presume you’re innocent until proven guilty in Denmark, but that’s certainly not how Lucas’ colleagues and neighbours feel.  Without giving too much away, I will say that the The Hunt’s startling final scene shows how the accused is forever guilty to the general public, even if the authorities say otherwise.

Directed by Thomas Vinterberg (who made another brilliant drama centering on allegations of sexual abuse, 1998’s The Celebration), The Hunt is a somewhat low-key, deliberately paced film that fans of Lifetime network movies about this subject may find dull. But Mikkelson’s performance as a man trying to keep it together while subjected to a Kafkaesque witch-hunt is a revelation — so much so NBC subsequently hired him to play the title role of the most famous serial killer in all of fiction in its series Hannibal.

The thing is, far more often than we like to admit, for this kind of thing there really are witches out there. Americans and Britons are still reeling from the revelations about beloved football coach Jerry Sandusky and entertainer Jimmy Savile, respectively. I grew up in Newfoundland when the unspeakable horrors at Mount Cashel Orphanage came to light, and I’ve never forgotten what these poor kids went through.

 
Child sexual abuse must be taken seriously, but that must be balanced with ensuring that those accused of such offences receive every legal protection to which they are entitled.  (In New Zealand, the conservative government and Labour opposition are falling over themselves to stack the deck in favour of prosecutors in sexual assault cases. Maybe they should be forced to watch The Hunt.)

Of course, as the film shows, legal protections are one thing. Social stigma is another. How does the wrongly accused defendant get his reputation back? That’s a question The Hunt can’t answer, and I’m not sure anyone can.

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Murder without a body

Yesterday, the news we’d all been dreading was confirmed by Calgary police, and today a suspect was charged:

The man police have been investigating in the disappearance of a missing Calgary family has been formally charged with their murders.

Douglas Garland was arrested near Airdrie on Monday morning, as the search for five-year-old Nathan O’Brien and his grandparents, Alvin and Kathryn Liknes, turned into a homicide investigation.

He was escorted to the Calgary police arrest processing unit on Monday evening, prior to appearing before a justice of the peace.

On Tuesday, Garland was officially charged with two counts of first-degree murder in relation to the deaths of Kathryn and Alvin Liknes, and one count of second-degree murder in the death of Nathan O’Brien.

He is scheduled to appear in court on Wednesday, July 16, 2014.

When asked how police were able to lay charges despite not yet recovering the bodies of the victims, Calgary Police Chief Rick Hanson admitted it is a ‘complexity.’

“You can still find evidence that supports a homicide, unequivocally supports a homicide charge in the absence of a body.” says Hanson while on Global Calgary’s Morning News on Tuesday.

“Without bodies, you have to build a case which is based on pieces of evidence that have to pull together at a particular time,” adds Hanson. “You assess, you add evidence, you get new evidence in, you chase down some leads, you pull more information together… and every day you’re looking at what you’ve got.”

 

After processing the horror that someone took the life of an innocent little boy, many probably wonder how Garland can be charged with murder when none of the alleged victims’ bodies have been discovered. Needless to say, that will make prosecutors’ job of proving guilt beyond a reasonable doubt much more difficult – but not impossible.

Following the arrest of New Yorker Robert Bierenbaum for the murder of his wife fifteen years earlier – ABC News posted a fairly detailed piece explaining the burden to be met by prosecutors where there is no body:

To prove there was a death in missing-body cases, prosecutors must prove there has been no sign of the person’s existence. That means presenting close friends and family members who would say they haven’t heard from the alleged victim in a long time and that the missing person would not have just gone away without informing them. Prosecutors and investigators also comb through records in 50 states to show there has been no activity in the accounts belonging to the victim, such as Social Security funds, bank accounts and credit card activity.

“You have to develop an understanding of the victim’s life, the details of their life,” says California prosecutor Richard Holmes, who successfully convicted Alejandro Gilbert Ruiz in the disappearance and murder of his wife in 1980. “Who would they contact? Do they have any medical problems that would require constant attention? What are their habits? You have to do everything you can to bring the victim to life in front of the jury. Very few people drop off the face of the earth. You have to prove that the victim is unlikely to do so, disregard everyone they’ve known in the past, especially if they have nothing to hide from.”

Prosecutors also must illustrate the circumstances under which a murder could have occurred: evidence of a troubled relationship; the discovery of the victim’s blood in their house or the suspect’s house. A confession from the suspect to either police or other people is always welcomed by prosecutors. But that alone is not enough to win a missing-body homicide case. The law mandates that prosecutors should have enough evidence to prove their case without a confession because suspects often retract their statements.

[...]

Without the presence of a body, Pertler says, questions that normally would be uncontested, such as the occurrence and place of the death and the identity of the victim’s remains, become fuel for the defense. In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.

“Most definitely they are the toughest cases you can face,” says Pertler. “With any murder case, there are certain elements that are no-brainers, like the death of so-and-so occurred in such-and-such a county and they died in this way. But without a body, you have the other side saying, ‘There’s no way you’ve identified these remains as belonging to the victim.’ You’ve got to hope that your case withstands the defense’s request for a directed verdict of acquittal from the judge [because of lack of strong evidence] and that your case passes with the jurors, who take their job seriously.”

[...]

Though they lack more direct physical evidence, missing-body cases, some lawyers say, ultimately can be stronger than standard murder cases with bodies and are more likely to withstand appeals. Because the body is missing, prosecutors must worry more about their case being thrown out before or during trial because of a lack of sufficient evidence. These obstacles, along with the fact that they have to prove there was a death by murder make prosecutors present a more efficient case.

“Circumstantial cases can often be stronger than direct evidence cases whereas the evidence you present is less susceptible to tampering,” says Joshua Marquis, who successfully prosecuted a missing-body case in Oregon in 1993. “You don’t have all the baggage that may come if police are not as careful as they should be at the scene of a crime. And I don’t worry about these cases being overturned on an appeal. Most judges won’t let you get past [the defense’s request for] a directed verdict of acquittal at trial if you don’t present a strong case. You combine that along with the fact that you convinced a jury to convict, it’s unlikely an appeals court will overturn the verdict.”

Bierenbaum was convicted, and as Christie Blatchford notes, there have been some successful missing-body murder prosecutions here in Canada:

There’s R vs. Pritchard, a decision affirmed by the Supreme Court of Canada. It’s a 2007 decision from the British Columbia Court of Appeal which involved a man convicted of first-degree murder despite the fact that the victim’s body has never been found.

There’s R vs. Ratte, another B.C. case where a husband was convicted of second-degree murder despite the fact his wife’s body was never found. The Supreme Court dismissed the application for leave to appeal.

There’s R vs. Wristen, a 1999 Ontario case where another husband was convicted of second-degree murder though the body of his wife has never been found; that was upheld by the court of appeal.

If Garland is convicted, it may bring some closure to that poor family – but only a little, if the bodies of Nathan and his grandparents remain undiscovered.  For any parent, not knowing for sure what happened to your child must be unbearable.

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Weekend viewing: “The Unfortunate History of the AMC Pacer”

It’s one of the most reviled cars of all time, but for a couple of years at least, it was a hit.  In fact, that was part of the problem: demand was so high that tiny American Motors ramped up production, and quality control suffered.

Admittedly I’m a sucker for old AMCs, but I always thought they looked kind of cool.  And a Pacer did serve Wayne and Garth well, after all.

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The greatest criminal mind Nova Scotia has ever seen

The only way this story could be any better would be if he’d been wearing one of these “FBI: Female Body Inspector” T- shirts:

A man in his 70s was observed impersonating a police officer at Aylesford Lake this past Canada Day.

The RCMP say a 74-year-old was patrolling the beach on Tuesday, flashing a badge and confiscating any liquor he found.

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Fred Pattje: Great Canadian, or GREATEST Canadian?

Someday, statues will be erected and songs will be composed about Nanaimo city counsellor Fred Pattje, who took it upon himself to, um, ban an event to be held on city property because it would feature anti-gay religious rhetoric one of the sponsors is a company owned by evangelical Christians.

Of course, some less enlightened folk might say the organizers of the event (which featured speeches by infamous, hateful radicals like Archbishop Desmond Tutu, Malcolm Gladwell and Laura Bush) should have been given the chance to respond to Pattje’s motion, or that maybe they should have been given more than four days’ notice.  But who has time for such legal mumbo-jumbo when you’re right and they’re wrong?

On May 9, Nanaimo’s city-owned Vancouver Island Convention Centre had been scheduled to host Leadercast, a telecast of an Atlanta leadership conference featuring speeches from South African anti-Apartheid activist Desmond Tutu, Canadian-born writer Malcolm Gladwell and former U.S. First Lady Laura Bush, among others.

But with only four days to go, Nanaimo Councillor Fred Pattje introduced a surprise motion withdrawing the event’s permit because it was “associated with organizations or people that promote or have a history of divisiveness, homophobia, or other expressions of hate.”

“It sends a message that I wish did not have to be sent, but here we are,” Mr. Pattje told the council.

Leadercast, which was broadcast in hundreds of communities across North America, is sponsored by the U.S. fast food chain Chick-Fil-A. Two years ago, Chick-Fil-A’s COO, Dan Cathy, attracted U.S.-wide condemnation from gay rights groups after he said that the acceptance of gay marriage was “inviting God’s judgment on our nation.”

Through an affiliated charity, WinShape, the company has also funnelled more than $5-million to anti-gay groups, although public backlash has prompted Chick-Fil-A to dramatically scale back such support for in recent years.

[...]

Mr. Pattje told the council he was motivated to get Leadercast’s permit withdrawn after receiving two phone calls from constituents and doing some subsequent Googling. As city staff were not given any time to research the 11th hour motion, and since Leadercast’s organizers had not been invited to testify, city council had to rely almost exclusively on Mr. Pattje’s account.

“Good decisions aren’t made on scanty information,” said lose dissident Mr. McKay.

Despite media reports that Leadercast was a “Christian conference,” it had no explicit religious overtones. While virtually all speakers were acknowledged Christians, the conference did not touch on same sex issues and the telecast’s official website does not even contain the words “Christ,” “God” or “prayer.”

When asked at council whether he had invited event sponsors to make their case before council, Mr. Pattje replied that it was “kind of beside the point as far as I was concerned.”

Spoken like a true Canadian patriot, carrying the spirit of university politics into adulthood.  Sure, maybe some people – even those largely supportive of GBLT rights – might say Mr. Pattje and most of his fellow councilors are two-bit fascists who deserve to have their asses sued off, and also prove that sometimes the often-infuriating Ezra Levant is exactly right.

But who cares about such details? We have souls to save! Or whatever the secular equivalent of souls are!

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Why France can ban the burqa

With the Hobby Lobby outcry sucking all the air out of the room, another major religious-freedom decision isn’t getting much attention:

Judges at the European court of human rights (ECHR) have upheld France’s burqa ban, accepting Paris’s argument that it encouraged citizens to “live together”.

The law, introduced in 2010, makes it illegal for anyone to cover their face in a public place. While it also covers balaclavas and hoods, the ban has been criticised as targeting Muslim women.

The case was brought by an unnamed 24-year-old French citizen of Pakistani origin, who wears both the burqa, covering her entire head and body, and the niqab, leaving only her eyes uncovered.

She was represented by solicitors from Birmingham in the UK, who claimed the outlawing of the full-face veil was contrary to six articles of the European convention. They argued it was “inhumane and degrading, against the right of respect for family and private life, freedom of thought, conscience and religion, freedom of speech and discriminatory”.

[...]

Her lawyer Tony Muman told the ECHR last November: “She’s a patriot” adding that she had suffered “absolutely no pressure” from her family or relatives to cover herself. While she was prepared to uncover her face for identity checks, she insisted on the right to wear the full-face veil, Muman said.

The European judges decided otherwise, declaring that the preservation of a certain idea of “living together” was the “legitimate aim” of the French authorities.

Isabelle Niedlispacher, representing the Belgian government, which introduced a similar ban in 2011 and which was party to the French defence, declared both the burqa and niqab “incompatible” with the rule of law.

Aside from questions of security and equality, she added: “It’s about social communication, the right to interact with someone by looking them in the face and about not disappearing under a piece of clothing.”

The French and Belgian laws were aimed at “helping everyone to integrate”, Niedlispacher added.

 

The Supreme Court of Canada has ruled that Muslim women may wear the veil while testifying in court in certain cases, so it’s hard to imagine a ban as far-reaching as the French one being upheld in Canada (nor in the United States or Britain, for that matter).  The different approaches actually illustrate the degree to which individual rights are emphasized on this side of the Pond, compared to continental Europe.

I can’t say I’m a fan of the burqa or other restrictive religious clothing, but I also think it’s not that great a leap from a government having the power to ban it, and having the power to make you wear it.

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