I’ve read some more about Hobby Lobby. I find the case and the argument for the case pretty interesting. It’s true it’s not first amendment, rather it’s based on an act that was instituted because the legislature disagreed with the courts and didn’t think they went far enough to protect the right to freedom of religion. So it’s certainly about absolutism on the rights enumerated in the first amendment, though the courts don’t agree that the first amendment goes that far.
I think the $600k security cost to have Spencer speak is an absurd misuse of public funds. And yes, other people with racist beliefs manage to speak without that level of security. Other people with progressive beliefs end up cancelling speeches because they aren’t given that level of security. Somehow it seems like the more prominent the Nazi, the more resources are devoted to ensure they have a platform to speak, and it looks less like equal rights for everyone than it does like favouritism for Nazis. But again, I’ll note this isn’t exactly a first-amendment-as-written, since that was obviously intended to give everyone the same rights, not Richard Spencer special rights.
Canadian law is more about a balance between individual rights and societal good, so you can pass a law that infringes on rights so long as it’s proportionate to the harm being prevented. For example, in the US you can’t offer someone money to kill someone for you because (somehow) that isn’t “speech”, but in Canada you can’t do it because the law that prohibits it reasonably balances your right to express your interest in paying to have someone killed with society’s interest in not having you do that.
So societal expectations have an impact on what is constitutional. That’s why Canada was an early adopter of gay marriage, because the supreme court looked at the list of categories that you couldn’t discriminate on (race, sex, etc) and read in sexual orientation. If society’s view of sexual orientation hadn’t progressed since the 1950s then they wouldn’t have made that determination. So I think free speech absolutism has an effect on Canada to the extent because Canadian judges are people who are affected by ideas from south of the border. I think most of them would agree with many of the basic arguments about why free speech is good or even necessary.
I didn’t really understand this. What I was saying is that if a thing does good, we ought to be able to see that in reality, not just explain it with models.
The thing is I wasn’t asking anyone to prove anything. I was asking people why they believed what they believed beyond philosophical arguments and models. Maybe philosophical arguments are it, and that’s fine. But even then we can look at real evidence. A bunch of laws have been struck down on free speech grounds. I can look at those and say, “These are laws that might still be in place if it were not for freedom of speech law.” That would give me something to work with.
Most people would rather that people who disagree with them just shut up. Or maybe they can take some disagreement, but there are certainly some people who they’d rather shut up. I’d rather Nazis shut up, they’d rather people who aren’t white men shut up. If we picked people at random and made laws based on what those people wanted, we’d have some terrible laws, I completely agree with that.
Similarly people have all kinds of other bad ideas for laws. Laws against drugs, against prostitution, against abortion, against face coverings. The reason I don’t think the [we restrict X => they restrict Y] argument means much is because my observation is that people will sometimes enact terrible laws, and they don’t feel they need permission from some previous person to do so. If a government does come in one day that says you can’t talk about racism, or women can’t speak in public, that will happen because a terrible, oppressive government has been elected, not because some previous government brought in hate speech laws. I don’t think the one paves the way for the other.
Also, I think having a body of case law around a subject tends to make it harder to make new bad laws around that thing. Good laws crowd out bad laws rather than making way for them. If a country A had no laws whatsoever around speech and country B had a hate speech law, then I think it would be easier to bring in oppressive speech laws in A than B. The X=>Y argument suggests that once there is one speech law it’s easier to make another speech law. I think that once there is one speech law the courts will already have fixed ideas about how to weigh whether a speech law has been violated and shifting those ideas will take time.
That being said, America doesn’t lack a body of case law around free speech, it has a huge body of case law around free speech, so I don’t think that a hate speech law would make it less likely that America would have oppressive speech laws in the future, I just don’t think it would make it more likely.