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Jewish World Review Oct. 10, 2002 / 4 Mar-Cheshvan, 5763

Robert W. Tracinski

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Permission to speak


http://www.NewsAndOpinion.com | Two recent events show the real meaning of two popular ideas: "hate speech" regulations and campaign finance controls. The real meaning of both is the end of free speech.

The first story comes from Canada, where "hate speech" laws are already on the books. Last week, a shipment of pamphlets from the Ayn Rand Institute was stopped by Canadian customs and detained for three days under suspicion of being "hate propaganda." The pamphlet, "In Moral Defense of Israel" (which includes one of my own essays), was sent to the University of Toronto to be distributed at a speech by the institute's executive director, Yaron Brook.

What was in this pamphlet? Such "hate"-filled passages as: "We stand for individual rights and freedom. In the name of justice, of defending the good, we support Israel. In a region dominated by despotism and totalitarian dictatorships, Israel alone upholds rights."

But the definition of "hate speech" is utterly subjective. "Hate speech" is any expression of ideas that might conceivably arouse an emotion of hatred in its readers. I hope the Ayn Rand Institute's pamphlet arouses a feeling of hatred against, say, Palestinian terrorists. Is that supposed to be banned by the "hate speech" laws? Your guess is as good as mine.

The pamphlets were eventually released. But the issue is not whether a few pro-Israel writers are allowed, for the moment, to publish our ideas in Canada. The issue is that the Ayn Rand Institute had to seek the permission of Canadian customs to do so. Speech is not free if it is allowed only by permission of the state.

Canadian customs officials claimed that the pamphlets were diverted because they contained "key words" allegedly associated with "hate speech." This is a rationalization. As the publisher of a magazine, The Intellectual Activist, I ship hundreds of issues to our Canadian subscribers every month, and I have never had any of them examined for potential "hate propaganda." Perhaps the customs inspectors think my magazine is safely leftist because its name includes the word "activist," making it far less likely to incite hatred, apparently, than literature sent under the name "Ayn Rand" -- the only "key words" I suspect were really involved in this case.

Earlier this year, a professor at McGill University in Quebec, opposing a proposed chair in philosophy devoted to Ayn Rand's ideas, denounced Rand as a "fascist" and compared her to Hitler. In fact, Ayn Rand was a philosophic defender of individual rights and a fiery opponent of all forms of oppressive government; she was the polar opposite of a fascist. But under the Canadian "hate speech" law, such smears and misrepresentations can be used -- and were, briefly, in this case -- to suppress unpopular ideas.

America has not yet embraced "hate speech" laws, but we have enacted our own form of proto-censorship: campaign finance controls. Under the campaign finance law recently passed by Congress, "special interest groups" are banned from airing political ads within 60 days of an election. As with "hate speech," these terms are subjective: what is a "special interest group," and what constitutes a political advertisement?

The job of defining these undefined terms has fallen to the Federal Election Commission (FEC), which recently issued some guidelines regarding who can speak and who cannot. Most press reports led with the announcement that late-night talk show hosts like Jay Leno and David Letterman will still be allowed to make jokes about candidates within 60 days of an election. What a relief.

But the issue is not whether Jay Leno can spout inane jokes. The issue is whether the government has any say in the matter. The very fact that the FEC had to make an explicit exemption for late-night talk show hosts implies that everyone else's speech is restricted -- unless they too obtain a special exemption from the FEC.

Even that may not be enough. According to one report, an FEC lawyer "said the exemption wouldn't automatically keep those kinds of programming from being considered a campaign contribution. That would be judged on a case-by-case basis" -- just as literature imported into Canada is censored on a case-by-case basis.

Unlike the Canadians, we are fortunate to have a Constitution that is very clear on this matter: "Congress shall make no law . . . abridging the freedom of speech, or of the press." That's "no law" -- not "just a few laws" or "only really good laws." It's time to invoke that clause -- and deny the FEC its power to control our speech on a case-by-case basis.

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