Okay, it’s dawn again. That means the Canadian news and spin cycle, operating “24/7” as the media like to boast, has revolved another time, and all the stuff that got people hot and bothered yesterday has now succumbed to the instant amnesia that the media induces as effectively as a sleep aid. And that means that it’s probably safe once more for thinking people to lift their heads above the foxhole horizon and consider the Tom Flanagan affair without fear of joining or being targeted by a social media lynch mob. When I opened my electronc Globe and Mail this morning, the name “Tom Flanagan” did not appear. Ditto for my Facebook “news feed.”
For the happy few who neither live nor die by the 24/7 cycle or the sword, here’s what happened: Flanagan, a former advisor to Conservative Prime Minister Stephen Harper, as well as a University of Calgary prof, last week gave a speech about aboriginal affairs to a University of Lethbridge audience. In the course of the discussion, Flanagan was asked a murky question about child pornography by a political activist in the crowd, suitably armed with a cellphone video recorder, hoping the speaker would say something outrageous. Flanagan obliged.
Despite being a seasoned and allegedly shrewd political operative, Flanagan remarked, “I certainly have no sympathy for child molesters, but I do have some grave doubts about putting people in jail because of their taste in pictures,” adding, “I don’t look at these pictures.”
In less time than it takes to Twitter a typically profound Tweet, Flanagan was going “viral” on YouTube, as an alleged proponent of the view that there is “no harm” in the act of viewing child pornography. Just like “Beam me up, Scotty” on old Star Trek episodes, Flanagan was instantly teleported from respected, if right-wing libertarian ideologue to despised and disgust-inducing social-pariah-near-pervert.
In short order, Flanagan was bounced from his CBC political commentary gig, fired as an advisor to an Alberta provincial party, had speeches cancelled, was denounced by friend and foe, and worse, reviled by the unwashed social media masses. Various left zanies who think the Harper government is fascist had lots of fun trying to tar the Tory regime with some Flanagan guilt-by-association. Oh yeah, and the University of Calgary picked that moment to announce Flanagan’s long-planned teaching retirement. The reaction practically redefined the notion of being “thrown under the bus.” Flanagan backed off the next day, apologizing for “badly chosen” remarks, but there are some topics for which there is no “damage control.” One conservative columnist, Andrew Coyne, had to remind his readers, “But for goodness sake. He was not engaged in making child pornography… He offered a mistaken assessment of where and when criminal sanctions ought to apply to it.”
If there’s a question here, it has to do with exactly how mistaken (or not) Flanagan’s assessment is. There’s also a question about the histrionic response to Flanagan’s views, but I think I’ve already made it clear that I don’t think the quality of the public forum has been greatly improved by the technological revolution that allows it to move at warp (and warped) speed. The question about Flanagan’s views is normally a topic I wouldn’t touch with the proverbial 3-meter pole. But since I co-authored (with fellow philosophy teacher John Dixon) “the book,” so to speak, on this subject (cf. Stan Persky and John Dixon, On Kiddie Porn: Sexual Representation, Free Speech and the Robin Sharpe Case, 2001), I suppose I’m semi-obliged to at least re-think about it.
In one sense, the case against child pornography is straightforward. Almost all Canadians agree that it’s morally wrong for adults to have sex with children, most especially young children, and that such acts ought to be criminalized. It’s true that there are cultural groups, within the Canadian multi-cultural mosaic, who may advocate marriage (and sexual acts) with underage children, but this is one instance where we don’t feel required to legally respect their cultural views; they too are subject to the Criminal Code prohibition of sex with children.
Further, it’s also wrong to counsel underage children to engage in such acts with adults or each other, or to make representations (i.e., child pornography) of such acts. The reasoning is obvious: we believe that in general children are not mentally capable of giving informed consent to such acts and therefore, the acts are a form of sexual assault, even in the absence of overt coercion or threat (as we know, most pedophiles tend to “groom” or seduce their victims rather than violently attack them).
Those of us who oppose child pornography then further reason that the video representation, say, of such acts, ought to be regarded as an extension of the original crime, and that those representations cause further harm to the victims. That’s why even civil libertarians, who are particularly vigilant over the protection of free speech, thought, and expression, were not unduly disturbed in 1993 when the Canadian government made an addition to the already existing law against the production, distribution and sale of child pornography. The add-on prohibited the viewing and possession (say, in a computer file) of child pornography. It was the first time in Canadian legal history that the viewing and possession of expression materials was criminalized. The justification for this limitation on free expression was several fold: 1) it would limit the extension of the harm caused to the child by the original assault; 2) by helping to “dry up” the market for child porn, it would discourage the production of same; and 3) insofar as child porn encouraged perpetrators of child sexual assault, it would remove an alleged stimulus to such assaults.
It’s the part of the law about criminalizing viewing and possession of child pornography with which Flanagan disagrees. He’s not alone. There are other political libertarians and philosophical anarchists who believe government should not interfere with any speech, thought, and expression at all. They’re against the direct harm caused by sexual assault of children, of course, but they’re wary of criminalizing indirect harm and what’s known as “apprehension of harm.” In this sense, Flanagan has an unpopular case to make, which he made worse by his tone-deaf and off-handed use of the phrase “taste in pictures,” as if photos of actual child sexual assault were no different from any other representation.
My colleague John Dixon was an advisor to the Minister of Justice at the time that the new child pornography law was crafted, and both of us were long-time members of the board of directors of the B.C. Civil Liberties Association, which implicitly supported the part about criminalizing viewing and possession of child pornography, even though we had lots of objections to the law as it eventually developed.
The strategic mistake made by drafters of the bill in the Justice Department was the assumption that they could produce a relatively “narrow” law. By narrow, I mean they envisioned a law that would only capture child pornography that showed actual children, under the age of sexual consent, being sexually abused. Representations that were works of the imagination not involving real children or that were simply written materials would not be prohibited. And the definition of “child” would cover only children under the age of sexual consent (at the time, it was 14 in Canada; later, it was raised to 16). What the Justice Department lawyers hadn’t envisaged was that once a grandstanding Parliament got their hands on the draft, “control of the agenda,” as they say in Ottawa, and the idea of a narrow offense would quickly give way to a bloated and dubious law.
The law we ended up with was hardly ideologically pure (the government of the day was playing to its most right-wing members); it was filled with absurdities and anomalies (in legal jargon, it was “overbroad”); instead of protecting young children, it tried to rope in and control the sexuality of adolescents in the name of dubious moral values, etc. For those interested in the details, Dixon’s and my book, On Kiddie Porn, is still valid, and I’ve subsequently written on the subject in these pages (Stan Persky, “Kiddie Porn and the Public Good,” dooneyscafe.com, Dec. 11, 2002). Most of our criticisms of the existing law aren’t relevant to Flanagan or the baying of the social media flash mob.
What those of us who thought about and participated in the child pornography debate at the time, and subsequently, recognize is that the part about viewing child pornography is intellectually challengeable. Obviously, if viewing child porn is a crime, it’s not the same kind of crime as sexually assaulting children, even though overexcited folks would like to blur the distinctions. What’s more, the justifications for our own views in favour of preventing the viewing of child pornography can also be challenged point by point. In the end, what we’re arguing about is admittedly a policy judgment call, and not the identification of a clear-cut direct harm crime. So, those of us who disagree with Flanagan recognize there’s something debatable here. Those who want rule by mob mentality don’t. I tend to be more worried about mobs than I am by eccentrics like Flanagan. He has a right to express his views, and he certainly shouldn’t be fired from various jobs and posts because of the unpopularity of his thoughts.
Meanwhile, elsewhere on the horizon of the True (Frozen But Warming) North, there’s William Whatcott. The Flanagan kerfuffle is not very important except as a cautionary tale about the dangers of social media, and its attention-devouring capacity. Intellectually, the fuss over Flanagan just isn’t that interesting. But the noise level it generated ended up silencing, to a large extent, an actually significant case about freedom of expression.
As often happens in these matters, the case began with seemingly trivial and comic particulars. A man named William Whatcott (I’ll try to avoid slipping into calling him Nutcott or Whatnot or something worse), inspired by religious beliefs, handed out pamphlets alerting the people of Saskatchewan to the grave dangers of homosexuality. In due course, Whatcott was hauled up before a Saskatchewan Human Rights Tribunal and found guilty of violating the hate speech provisions of that province’s Human Rights Code. I’ll cut to the chase on this one: all Whatcott did was hand out some anti-gay leaflets and, as far as I can tell, they didn’t promote hatred by any stretch of the imagination, except that stretch imagined by the protectors of absolute political correctness, self-proclaimed opponents of “poisoned atmospheres,” and those who expand all defintions of harassment, bullying and abuse beyond credibility. The pamphlets merely expressed one eccentric guy’s views.
In further due course, the case wended its way up to the Supreme Court of Canada. Last week, while everyone was distracted by the reaction to Flanagan’s remarks, the Supreme Court upheld Whatcott’s conviction and, more important, the hate speech interpretation of the Saskatchewan human rights tribunal. I won’t explain the details, since the sun is already crawling up above the yardarm, as old sailors say, but columnist Andrew Coyne, a conservative who pays intelligent attention to free speech, explains it all (Andrew Coyne, “Tom Flanagan, Supreme Court both got free speech wrong, but in different ways,” National Post, Mar. 1, 2013).
The bottom line, Coyne explains, is that alleged hate speech can too easily be declared hateful and can be too easily suppressed because it has been judged by various Canadian institutions, from courts to the digital forum, to “lie at the periphery of the values underlying freedom of expression.” It doesn’t contribute to aspirations, truth, individualism or democracy. In short, it’s not useful.
Replies Coyne: “But it’s not up to the speaker in a free society… to prove why he should be allowed to speak. It is up to the state to prove why he should not.” Usually, in the case of controversial or offensive speech, the truth of the statements is considered a defense, but in this case the Supreme Court astonishingly declared, “The use of truthful statements should not provide a shield in the human rights context… not all truthful statements must be free from restrictions.” You’d think this would be the sort of thing that could inflame a nice mob. Not a chance. We have to protect the children from the likes of Flanagan. I wish people would get as excited about world hunger or the melting of the ice caps.
Berlin, March 4, 2013