Weekend reads: On defending free speech 'particularly when it's unpopular'

A Q&A with Philip Slayton, author of Antisemitism and past president of PEN Canada

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We are in a heated moment in Canada, with debates about the war in the Middle East spilling into many areas of public life — and concerns about antisemitism mounting.

The question of how to combat antisemitism while defending free speech is not a new one. But it has once again become a pressing consideration in North America, with the Foundation for Individual Rights and Expression, Harper’s Letter organizer Thomas Chatterton Williams, and former ACLU president Nadine Strossen weighing in. “Dialogue is better at defeating cruelty than silence,” Strossen writes, with co-author Pamela Paresky, at The Free Press. “Discouraged as we may be about the power of such goodwill, history leaves us no doubt: censorship is guaranteed to fail.”

To talk through these issues, and their implications in Canada, I reached out to Lean Out podcast guest Philip Slayton. He’s a lawyer, a past president of PEN Canada, and the author of Nothing Left to Lose: An Impolite Report on the State of Freedom in Canada. His latest book is Antisemitism: An Ancient Hatred in the Age of Identity Politics (which I blurbed). Here, we contemplate the current climate in Canada.

TH: Philip, we find ourselves at a complicated juncture for free speech in Canada, with the Israel/Gaza war raising a number of issues. I’ve written about how concerned I am with the justifications that we’ve seen of the mass murder of Jewish civilians, and what this says about the modern left. I’m deeply concerned about antisemitism. I’m also, now, concerned about the collapse of a distinction between a pro-Palestinian political position and a pro-terrorist or pro-violence stance, and about a clampdown on speech in that direction, including legitimate criticisms of Israeli government policy. I want to start today with an explainer on how freedom of expression works in Canada. Walk us through the broad strokes of these laws, and what kind of speech protected and what is not.

PS: Generally speaking, Canada is very sympathetic to, and receptive to, freedom of speech, broadly-conceived. This is a product of all kinds of things. First of all, both the federal and provincial laws that relate to this are very few, and allow many things that fall short of hate speech, for example. Secondly, other government institutions like human rights commissions, which have some jurisdiction over these sorts of issues, tend to be very much hands-off. The spirit, I think, of this country certainly has been — and I hope it continues to be — very much in favour of free speech.

I think the real issues, particularly now, are not so much where the laws come in, but how institutions behave. How trade unions behave, how legislative assemblies behave within themselves, in this very feverish time that we’re now in. That’s really what you need to think about.

TH: Let’s talk through some specific speech controversies. The first is a tweet from CUPE Ontario leader Fred Hahn. It was posted the day after the October 7th attacks. It said that he was thankful for “the power of resistance around the globe.” He also said that “resistance is fruitful and no matter what some might say, resistance brings progress.” (Under pressure, two weeks later, he apologized and said that Hamas had committed a horrific terrorist attack on the citizens of Israel.) How do we think through these comments — and the reaction to them?

PS: We have freedom of speech in this country. We also have freedom to be stupid, and we have freedom to totally ignore very important distinctions which should be made if you’re going to have a sensible discussion of these issues. And I think this gentleman fully used those freedoms that I just described. But I would say that as a private individual, as a citizen of this country, like you or like me, he’s free to say these things if he wishes. In this particular case, it was of course complicated because he’s head of a large and powerful union. So then, the question became not whether he was free to say these things — because as a private individual, he certainly is — but how he was compromising his position, whether he was free to do it as head of a union.

Similarly, these students running the York University students unions, who made similar kinds of statements and have been disciplined or sanctioned by the university. The question there is not whether they were free as private individuals to say these things, because they certainly are. I think they fell well short of anything that would be illegal in this country. But the question is: In their official capacity of heads of student unions, were they free to do it? This is a very important distinction, I think, that has been blurred in recent discussions and controversy on this issue.

Let me say one other thing. What we’ve seen, I think, in the debate over the last two weeks or so, is almost a complete failure to make very important distinctions that would help understand what’s going on. So for example, as you know, I wrote a book recently on antisemitism. One of the points I make in the book, as forcefully as I can, is that you can be opposed to policies of the state of Israel, and you can even be what is sometimes described as an anti-Zionist, without being antisemitic …

You can be sympathetic to the history and current plight of the Palestinians without, in any way, even remotely endorsing what happened on October 7th. What I find in the current debate is, for the most part, it all gets lumped together in a horrible brew of stupidity and failure to make important distinctions and think your way through, carefully, what the issues are.

TH: The Ontario NDP has kicked MPP Sarah Jama out of caucus after she posted a controversial statement, which was focused on the plight of the Palestinians and did not mention Hamas or Israeli civilians. Doug Ford called for her resignation, accusing her of antisemitism. The Progressive Conservatives have voted to censure her, which bans her from speaking in the Ontario legislature. Jim Turk, at Toronto Metropolitan University’s Centre for Free Expression, told Metro Morning — a show I used to work on — that the censure of Sarah Jama crosses the line. I tend to agree. What do you think?

PS: Several comments on that particular case. First of all, the statements that she made — I’m not sure I’ve read all of them, but I’ve certainly read some of them — were statements in favour of the Palestinian cause and did not implicitly or explicitly endorse Hamas or the Hamas violence of October 7th. And I think in this country a reasonable person can take that position, and should be free to take that position, as a Canadian. There was nothing I found inherently unreasonable or objectionable in what she said. That’s the first thing.

Secondly, my understanding is that she was expelled from the NDP caucus because she didn’t, essentially, subject herself to the discipline of the leader and behave the way a member of the caucus was supposed to behave. So she wasn’t, as I understand it, ejected from the caucus because her views were unacceptable to the NDP caucus. It was because of her behaviour as a member of caucus. I think that’s the right of the NDP party to do that. I don’t think freedom of expression issues arise because of it.

Then there’s the issue of the censure by the government, which, as I understand it, makes it impossible for her to speak in the provincial legislative assembly. That’s a different matter. I would agree with my friend and colleague Jim Turk on this. This is depriving an elected member of the legislature of the right to stand up and speak on behalf of her constituents. For no particular good reason, that I can see.

Now, you sent me an interesting piece [by Joanna Baron, head of the Canadian Constitution Foundation] that analyzed parliamentary privilege and suggested that legislative assemblies in this country could make their own rules … The author of that piece — I think she’s coming on your show next week — I noticed, at the end of the piece, said, “That’s all very well and good. But in fact, I don’t think they should have done it.” And I don’t think they should have done it either.

I don’t think this woman’s views were particularly exceptional or extraordinary, or should be condemned. She has a right to express them. Her expulsion from the NDP caucus had to do with the rules of that caucus, which they are perfectly entitled to make and enforce. But she should not have been silenced in the legislative assembly.

TH: The third example I want to highlight is a pro-Palestinian speech from Harsha Walia, former head of the B.C. Civil Liberties Association, in Vancouver. It included comments rejecting the framing of the war around Hamas violence. She also said, “How beautiful is the spirit to get free that Palestinians literally learned how to fly on hand gliders?” And she called for victory for the Palestinian resistance. Would this speech be considered protected speech?

PS: That’s an interesting question. I watched some of that speech; I couldn’t bear to watch all of it. It was a hysterical rant of the worst kind, in my opinion. Her opinions were quite objectionable. Again, going back to my earlier point — you have the freedom to be stupid in this country. Many people take full advantage of that freedom. Now, is it protected speech? Does it run up against criminal code provisions, of hate speech? I suspect if somebody attempted to suggest that, or if the prosecution was attempted, it would not get very far. It would fail and it would probably be unwise to attempt it.

As you know, my general view on these things is in a country like our country, the best solution to this kind of extreme and foolish speech is an educated population who listens to it and says, “I don’t agree with that. This person is just wrong, and I will not accept what he or she says.” That’s much better than an attempt to squelch speech through the courts, or in some other way.

TH: Moving on from that example, let’s spend a moment on the spirit of free speech, and of advocating for a robust free speech culture. I do think we need to defend free speech even when it’s unpopular.

PS: Particularly when it’s unpopular.

TH: Yes. And I do think there’s value in knowing that certain views are out there. I think it’s useful information. I’d rather have the information that some on the left feel this way, then not have that information. We have seen several articles lately from prominent defenders of free speech — Nadine Strossen, former head of the ACLU, who will be on my podcast again soon, and Thomas Chatterton Williams, organizer of the Harper’s Letter — saying that we must resist calls to censor speech in this time, as offensive as some of that speech may be. Walk me through your thinking on that.

PS: First of all, I agree that the kinds of things that we’re talking about should be free to be said. There should be no attempt to stop people saying that. Although I concede, as I said earlier, that in some particular institutional settings, where people assume the mantle of authority, like head of a union for example, it complicates the issue.

But in general terms, people should be free to say these things. That’s the essence of the kind of free and democratic society that we live in and that we value. Once you start eroding that in any way, even to the slightest extent, you’re going to quickly run into difficulties. Because the views that you would like to suppress may not be the views that somebody else wants to suppress. They may want to suppress your views. So you enter in a horrible, vicious cycle.

The other thing I want to say is to pick up on something you said, which is you made reference to people on the left. I resist the idea that people on the left are somehow particularly guilty in making the kinds of bad distinctions that we’ve been talking about.

I don’t know if you listened to the latest Ezra Klein podcast [“The Jewish Left Is Trying to Hold Two Thoughts at Once”], in which he has Peter Beinart on. It’s a discussion of how Jews on the left feel about what’s going on.

The people on his show passionately believe in rights for Palestine, passionately believe that the Palestinians have been badly treated since 1948 and on. These are Jewish people speaking. People who are desperately trying to seek a solution of some kind. But not, to the slightest extent, do they endorse October 7th kinds of actions. Nor, by the way, do they endorse what seems to be almost indiscriminate bombing of Gaza and the suffocation of Gaza that’s now taking place. So I think we need to resist the idea that people on the left are suspect, in these respects, because they’re not. I speak, by the way, as a person of the left.

TH: You mentioned your book on antisemitism. I want to close by talking about where we’re at with that — and how we should best address that problem, in light of what’s going on right now.

PS: You have a knack, Tara, of asking very hard questions that have no clear or obvious answers. That book that I wrote was published about six months ago now. It already has the feel of a history book to it. Because events seem to have, in some ways, dramatically overtaken the kinds of analysis and suggested solutions that I set forward.

But one of the things, you may remember, that I say is that not all expressions of antisemitism are the same. You need a typology. Some — unpleasant though they may be — are really at the level of a lack of civility, which is not nice. And then there are other kinds of antisemitism that are more dangerous, and have to be taken more seriously. The general point here is: It’s important to make distinctions. It’s important not to treat everything as if it’s the same as everything else.

Now, of course, we’re being put to the test, because there’s all kinds of new expressions of antisemitism. Even in this country, which is generally a tolerant and peaceable country. But when you’re put to the test, it’s more important than ever, I think, to be careful, to be discriminating, to see things for what they really are and not what your fears suggest they might be, or might lead to.

I would say that for anybody who cares about antisemitism — which should be everybody — it’s important to clearly understand what people are saying and judge it. Some of it, you will judge as being ridiculous and not worth the time of day. Some of it you will judge as being unpleasant, but largely fit to be ignored. And some of it you may say, “This is dangerous and this is something we have to respond to.”

This interview has been edited and condensed.