Review: Shakedown

Ezra Levant is a Canadian conservative activist, blogger and publisher who was dragged in front of this country’s human rights apparatus for republishing the Danish editorial cartoons depicting Mohammed. Since then he has been embroiled in a total of 20 different legal complaints launched by various aggrieved and affronted characters with miscellaneous reservations about the value of free speech. His response has been to write Shakedown, an account of the campaign of Canada’s human rights commissions to weed out incorrect and irresponsible expression, which is entertaining and disturbing in about equal parts.

While there is a great deal that could and has been said about the various issues involved one of the most noteworthy and telling is the degree of arbitrariness in the procedures of the human rights apparatus. The following irregularities are documented by Levant (many of them are neatly summarized in Appendix A at the end of the book):

The checks and balances which have been incorporated in the traditional legal system over generations need not apply in human rights (for brevity, HR) proceedings. For example, there is apparently no principle of double jeopardy. An accused can be charged with a complaint, then a nearly identical complaint can be submitted again by someone else. A complaint at the provincial level can be repeated at the federal level with its separate commission, or in another province, or several others, or, in principle, in all of them. HR investigators can, at least in some provinces, enter the home or workplace of a subject of investigation without a search warrant signed by a judge, something the police are not allowed to do. In addition, they can also inspect any document or other property (such as computers) without a search warrant. Subjects of interrogation may be required by law to answer all questions put to them. Investigators are not fire-walled from the police; they have in the past asked for and received confidential information acquired by the police using search warrants. HR processes do not always obey normal judicial restrictions. In a criminal trial, for example, the prosecution must reveal its entire case to the accused in advance. Failure to do so can result in the case being quashed. In some HR cases, however, information was disclosed only once the proceeding were underway; in one case after all the witnesses had testified, and then those documents which were disclosed turned out to have been partially blacked out, an act performed at the sole discretion of the HR commission. In a court of law, hearsay evidence is not admitted; HR tribunals are apparently not subject to this restriction. There is no clear requirement for HR proceedings to be public; hearings are made open or closed on an ad hoc basis. In one case an HR commission asked for reporters to be temporarily banned from court, a request the tribunal granted. On another occasion the commission even requested that the accused himself be barred from a part of a hearing against him (although this batty motion was not actually successful). Under criminal law, slow-moving as it is, there are at least some limits to how long a process may take, and cases may be dismissed if they do take too long to go to trial (as illustrated in the Askov case in Ontario). HR proceedings are apparently not subject to any such restrictions and may therefore drag out indefinitely. One set of proceedings (not a free speech case) involving a rape relief centre in Vancouver took 5 years to get to a HR hearing (and ten years to finally conclude). The Stephen Boissoin case was sparked by a letter to the editor written in 2003; the HR ruling was not made until 2008 and the appeal is still underway. Proceedings against Ezra Levant for republishing the Danish cartoons took place two years after the act. In Manitoba B’nai Brith was subject to a 5-year investigation for fomenting hatred. By way of thickening the police state atmospherics around the case the name of the complainant has still not been made public, nor the contents of the allegedly offensive speech nor the member of B’nai Brith who was allegedly responsible for it. HR investigators have acted as both investigators and as complainants (although the ultimate degree of irregularity whereby investigators investigate the claims they themselves have advanced has apparently not yet been reached). HR staff have launched lawsuits and law society complaints against critics of the HR process. They have also acted as agents provocateurs, creating bogus accounts on neo-Nazi websites and posting extremist comments there. (Your tax dollars at work). There appears to be no policy at HR commissions regarding the ethics or legality of investigators attempting to entrap offenders into committing speech crimes, or on the ethics or legality of investigators posting remarks which would be considered actionable under HR standards if posted by a private citizen. Investigations have been carried out against political websites against which no complaint has been made. There do not appear to be any restrictions on the sanctions which HR tribunals can levy. Perpetrators of prohibited speech may be subject to blanket bans of indefinite duration on publishing disparaging remarks not only about protected groups but also HR complainants or witnesses. (This is not only draconian, but more than a little bizarre, as “disparagement” would appear to be a stricter standard than that expressed in the original HR speech code. In other words, if this kind of thing stands up, there will be two criteria for prohibited speech: what is said and who said it (i.e. are you already under an HR gag order?). So much for constitutional principles). In addition, HR tribunals can demand that people publicly apologize for their previously stated opinions, a penalty which does not appear to be applied anywhere else in democratic legal systems. And finally, the crimes of expression which HR tribunals prosecute are far from clearly defined. Forbidden expression, according to the infamous section 13 of the HR act, includes “any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” This could be almost anything, based not only on the generality of the term “likely,” but also on the wide net cast by “prohibited grounds of discrimination” which may include not only the usual statuses such as race, gender or disability but also things like source of income or political beliefs. So think before you speak.

All of this could be viewed as just the sloppy and amateurish attempts of people without formal qualifications (which the HR industry by and large does not require) to run something supposed to resemble an adjudication system. Levant notes that in an audit of its management practices the national HR Commission did not once get a grade of “best practice” or even “advanced practice” in 33 areas audited. But a better explanation is that the organization of the HR shadow legal system on the principles of totalitarian legality is neither inadvertent nor coincidental. Totalitarian legal systems claim the authority of the law, but without any of its limitations. Arbitrariness is central to such systems: after all, state power is really unlimited only if the state can do anything it wants. That is, accuse or arrest anyone at any time, drag out the proceedings without limit, charge the same offence multiple times, and impose any penalties it thinks fit. Other time-honoured features of police state policing include agents provocateurs who seek to entrap citizens, civilian denouncers who can report anyone else at a moment’s notice and at no cost or consequence to themselves, and widespread surveillance in case incorrect thoughts are expressed anywhere. The incorrectness of such thoughts is never clearly defined, of course; this helps to keep the citizenry on its toes. Other hallmarks of totalitarian law include forced retraction of opinions and self-denunciation, important for enforcing correct thinking and humiliating those who have the effrontery to voice their own views. And it is political imperatives, not actual violations, which are the driver for prosecutions. This is echoed in Ontario HR head Barbara Hall’s self-revealing remark that the number of HR cases is not high enough and “may have to spike.” Quite right. If you’re Himmler.

In short, the HR speech control apparatus is implicitly totalitarian in its roots: in its view that all expression can be categorized, namely as either permissible or impermissible; that impermissible expression needs to be controlled, that the thinking underlying it in turn needs to be suppressed and, since it has no legitimate justification, ultimately extirpated. Since hate speech has no legitimacy there need be no concern about the means used to get rid of it. Procedural abuse follows. In fact it is difficult to imagine any organization with the mandate of the HR speech control apparatus not adopting an abusive prosecutorial style.

But having said all that, we probably don’t need to keep the shotgun ready in the bedroom in anticipation of the 3 am knock on the door. The HR apparatus is an example of the totalitarian mentality in embryo, proving, as if any new evidence were needed, that this way of thinking will always be with us and that there will always people ready to step up to fill the slots in the inquistional bureaucracy. On the other hand, it’s kind of like a baby alligator. Not dangerous unless it gets a lot bigger.

What will keep the HR speech control system in check is openness and a sense of the ridiculous. Shakedown does an excellent job in the cause of both. In fact, aside from the plight of the victims dragged into this mire, the whole HR business is risible. There isn’t a single case in the book which isn’t silly. Probably the best stuff is the Nazi-hunting, the HR system’s number one priority, which amounts to the spectacle of one little gang of Gestapo wannabes snooping on another. Nazi chat sites are where our bureaucratic Web-surfers hang out, trying to raise the temperature. Levant even suggests the possibility that there may have been times when there weren’t any genuine neo-Nazis on these sites at all, only Canadian government employees trying to entrap each other (it’s not clear if they all knew each other’s fake identities). Nazi kooks, wacky bureaucrats, deeply offended oddball complainants, foaming imams: that is what comes out of the HR barrel of monkeys.

To close on the downside, however, while it isn’t very likely that the HR speech tribunals are going to grow into a full-fledged threat to freedom of speech it is not clear that they are going to go away either. While many of their practices, and even their existence, may ultimately turn out to be unconstitutional such a conclusion cannot be reached without many years or even decades of litigation, and, with all respect to Ezra Levant’s persistence and determination, it isn’t clear who has the motivation and resources to fight and win such a battle. The alternative, and more direct, route to the elimination of HR speech tribunals is political, but the obstacles here look just as formidable. The Conservatives voted to abolish HR speech tribunals at the convention in Winnipeg last fall, but this is really nothing more than the PM allowing the rabble let off steam. There is little reason to think that the Tories (or any other party) are going to come within a mile of this radioactive issue. And despite the mutterings of various MPs cited by Levant the old saw applies: backbenchers are nobodies. For movement on this issue the PM or at least the Leader of the Opposition is going to have to come out with an unequivocal stand on the matter. This isn’t going to happen, or at least not without a great deal of pressure from the public. Mere disapproval, as is clear from the example of the parallel “justice” system for young offenders, doesn’t get the job done when something is set in cement. So we are quite likely left with a standoff. The HR speech creature will have to lay off prey that it can’t swallow, like Maclean’s (too big) or Levant (too prickly), but it will continue to slither around in the weeds hunting various right-wing crawly amphibians and wiggly neo-Nazi worms of the online ecosystem. Despite Levant’s optimistic characterization of HR speech codes as being fundamentally un-Canadian there is more truth in Mark Steyn’s observation that many Canadians, like many Europeans, view unfettered freedom of speech as an American and suspect concept. Shakedown is an important contribution to defending our democratic rights, for which Ezra Levant deserves congratulations. But it isn’t the end of the battle, although it may be the end of the beginning.



To support the cause of freedom of speech in our wonderful country by buying Shakedown click here.

To contribute to Ezra Levant’s legal defense fund (sadly still a necessity) click here.

Health worries

An interesting item in the Financial Times from a few days ago about the “nocebo” effect. This is the negative twin of the placebo effect: instead of making people feel better under the expectation that they are being treated it results in people feeling worse when they are led to expect to. As with the placebo effect it is hard to tell in any given case whether the effect is really all in the mind or not, but there appears to be growing evidence that people really are susceptible to negative suggestions.

When we expect something to make us ill – electrodes wired to our temples, for example, or, more routinely, a medicine with known side-effects – we start looking for signs of illness. And we’ll probably find some, says [psychologist Brian] Hughes, even if the pill is a dummy one or the electric field a sham. That is because unpleasant physical symptoms are a normal part of life for perfectly healthy people. Headaches come and go. Some nights it is hard to get much sleep, and some days it is difficult to keep our eyes open. We might feel light-headed one moment and in a bad mood another. These are all experiences that we would not think twice about were we not looking for signs that things are wrong. But when we are looking, it is easy to interpret a bad night’s sleep as insomnia, tiredness as fatigue, light-headedness as dizzy spells or a bad mood as depression – and then to reattribute those symptoms to whatever it was that we expected to harm us. And once we start believing that something is making us ill, we get anxious, which can itself exacerbate existing symptoms or induce others. “Anxiety generally leads to elevations in blood pressure and immune deficiency,” says Hughes. And more symptoms mean more anxiety.

A telltale sign is that the symptoms produced by any particular alleged cause are often manifold, so electrosensitivity, for instance, may result in headaches, insomnia, nausea or depression in different people; but then the whole symptom cluster is reproduced by multiple different causes: electromagnetic fields, chemicals, allergens, dietary imbalances, chronic fatigue viruses and so on all produce the same symptom cloud. (The usual list pops up again, for example, in this story about wind farms). On the other hand, measurable physical symptoms don’t seem to be produced with any regularity.

This is not to say that these kinds of unspecific symptoms never have an objective cause. Just that this is not the case anything like as often as claimed. The odds are that the well-publicized concerns of the worried well (in the developed world) about the ubiquitous wellsprings of toxicity are themselves the source of real distress and suffering on a wide scale. This also suggests that the alternative health industry, which specializes in treating the cases which flummox conventional medicine, is, by focussing people’s attention even more on their nocebic suffering, actively helping to make things worse.

Carbon mis-economics

A clear, simple and common-sensical article in City Journal on the delusions underlying the drive to Green Power, by Peter Huber. Some of the key points:

• The poorest 5 billion people in the world already produce more carbon than the developed world. In the future the gap will grow.
  

• The poor are motivated almost entirely by price. Unless the developed world pays them to not use oil, coal and wood for fuel they will do so.
  

• Alternative energy sources such as wind and solar may cost 5 to 10 times as much as the cheapest conventional source, coal. Regardless of any possible technical breakthroughs collecting energy from these sources will require major infrastructure costs and huge areas of land (for wind or solar farms), making them even less attractive to less developed regions.
  

• Increased use of expensive alternative energy in the developed world gives the rest of the world a competitive advantage in industries based on cheap and dirty energy. In particular, reducing Western oil consumption by a significant amount would simply make oil even cheaper and more attractive. With much of the world’s oil supply costing only $10 per barrel to produce it is impossible to imagine it sitting in the ground.

A couple choice quotes:

Cut to the chase. We rich people can’t stop the world’s 5 billion poor people from burning the couple of trillion tons of cheap carbon that they have within easy reach. We can’t even make any durable dent in global emissions—because emissions from the developing world are growing too fast, because the other 80 percent of humanity desperately needs cheap energy, and because we and they are now part of the same global economy. What we can do, if we’re foolish enough, is let carbon worries send our jobs and industries to their shores, making them grow even faster, and their carbon emissions faster still.

We don’t control the global supply of carbon.

Also:

Poor countries all around the planet are sitting on a second, even bigger source of carbon—almost a trillion tons of cheap, easily accessible coal. They also control most of the planet’s third great carbon reservoir—the rain forests and soil. They will keep squeezing the carbon out of cheap coal, and cheap forest, and cheap soil, because that’s all they’ve got. Unless they can find something even cheaper. But they won’t—not any time in the foreseeable future.

And:

The United States would be in compliance with the Kyoto Protocol today if we could simply undo [anti-nuclear activists’] handiwork and conjure back into existence the nuclear plants that were in the pipeline in nuclear power’s heyday.

Finally:

The grand theory for how the developed world can unilaterally save the planet seems to run like this. We buy time for the planet by rapidly slashing our own emissions. We do so by developing carbon-free alternatives even cheaper than carbon. The rest of the world will then quickly adopt these alternatives, leaving most of its trillion barrels of oil and trillion tons of coal safely buried, most of the rain forests standing, and most of the planet’s carbon-rich soil undisturbed. From end to end, however, this vision strains credulity.

None of which is to say that environmental issues, and global warming in particular, are to be dismissed. And like most commentary on the environment, this sidesteps the central issue (too many people). But it's still a bucket of cold water over green daydreams.

Our ADD culture

Robert Fulford’s Saturday column in the Post was a surprising endorsement of the Internet from the point of view of a literary journalist. Surprising because one would have expected someone as old and bibliocentric as Fulford to take a dim view of the new technology. On the other hand, he does point in that direction, referring to an item by Rebecca Traister at Salon titled “Stop the Internet, I want to get off!” This is mainly about a program called Freedom, a Mac application which turns off connectivity for those who need to work on their computers but can’t stop themselves from surfing, Twittering and otherwise wasting what is supposed to be working time. Traister has a nice take on the vortex of distraction:

And yet ... even as a comparative Luddite, I find myself bewitched, bewildered and deeply bothered by the number of minutes, hours, days I spend circling the online drain. As anyone who spends most working days staring at a computer screen knows, there is no such thing as sitting idle anymore. Those little desk toys they used to sell -- the plastic bird who teeters and totters until its beak finally dunks into the water glass -- are relics at this point. Like the notion of being unreachable at certain hours of the day or night, they are laughable reminders of a world long gone. Who would have the patience to wait for the beak to hit water? We'd all be hitting "reload."
. . .

Instead of watching plastic balances, we stare idly into a scrim of ever-updating images, words, videos, letter threads, some that calm us, some that raise our blood pressure, until finally the day is over, and we go home, log on, and do it again. Or at least I do.

This is right on the money. The whole cyber-experience appears to be deteriorating into a devils’ playground of nonstop diversion. The positives of instant access to supposedly edifying and relevant content out there are increasingly outweighed by a large scale destruction of attention spans. Old habits – at least among the literate – of reading for hours at a stretch look like they’re going the way of the printed newspaper. Eye-movement studies have discovered the notorious F-pattern used by many readers of Web pages: read the first two lines, scan halfway down, read another line, scan to the end. Done. Speed-browse the comments. Skip to the next article and then hare off on some totally random collection of links with no discernible thread at all the end of which you can’t even remember where you started.

Martin Amis’ the term “The Moronic Inferno” (originally intended as a description of the US) was evidently ahead of its time. But it’s not just the Net. The explosion of entertainment options, music movies and gaming seem to be creating for more and more people a new normal of 12 or more hours a day of screen time – a life of onscreen work, surfing, gaming, flat screens, iPods and smart phones embedded in an ADD culture which leaves less and less time for reflection and in which no individual cultural artefact really matters much because there is just such an overwhelming and incessant stream of output.

Paradoxically, the onslaught of electronic modernity seems to be undermining one of the key attributes needed to cope with it, namely the ability to focus, which is the common element to most high-skill, high-paying “top jobs.” The elite will no doubt continue to master the skills they need to attain the wealth they covet, include the skill of concentration. And they’ll teach them to their kids. So it isn’t inexorable doom: we’ll still have doctors and software architects. On the other hand the learning and studying capacities of the lower socio-economic 50% don’t look so likely to improve in the new attention-deficit world order, which may create widening social gaps in terms of both culture and life opportunities. The status of literacy, at least literary literacy, as opposed to being able to read a menu, as a defining element of middle class identity likewise seems to be facing long odds of coming through the intensifying cyberian gales. The consequences of this remain to be seen. But apart from the broader social implications, simply on a personal level, it is just not very appealing to spend more and more of one’s time in something like the mental state of a baboon on amphetamines, which is what the online experience tends to induce. If a little backlash is building up it’s not past time.