Liberty Under Attack -- by Equality?

by Steven Hill
This article has been published in Z Magazine and The Humanist

In February 1992, Canada's Supreme Court ruled 9-0 that obscenity in Canada was to be defined by the harm it does to women and not by what offends Canadian moral values. "Materials portraying woman as a class of objects for sexual exploitation and abuse h ave a negative impact on the individual's sense of self-worth and acceptance," read the court's landmark opinion, the first time a court had established the precedent that a threat to the equality and safety of women "is a substantial concern which justif ies restricting the otherwise full exercise of the freedom of expression."

This case typifies an ideological and legal battle that is being waged today in Western democracies, challenging age-old bedrock assumptions about liberty, freedom and equality. One of the distinctions of this battle is that it pits previous allies -- civ il rights advocates and civil libertarians -- against each other as foes. As Western institutions have been integrated with women and people of color, increasingly these institutions are being challenged from the inside, besides the traditional pressures from the street and the ballot box. Critical legal scholars are challenging the supposed neutrality of the law, maintaining that the law's alleged neutral principles are in fact driven by the exclusionary politics of the affluent white male status quo.< p> It's a tug of war, with liberty and freedom on one side and equality and justice on the other. These four cherished pillars of the liberal democratic capitalist ideal increasingly are coming into direct conflict. Some examples:

  • Hate Crimes: The civil libertarian position says that only acts, not beliefs or speech, should be punished, and that sentences should not be increased because the criminal perpetrating the act was motivated by or held unpopular beliefs, including racist or sexist ones.

    The civil rights position maintains that the government can punish some criminal acts more severely than others, particularly if the criminal's motives are racist or sexist and therefore harmful to society -- just as a murderer for profit can get m ore prison time than a murderer for passion.

  • Sexual Harassment: The civil libertarian position says that sexists have free speech too. If the alleged harassment consists only of non-targeted offensive speech -- hanging pornography in the workplace, dirty jokes, vulgar comments, e tc. -- it cannot be punished.

    Civil rights proponents say that women and minorities have a right to work in an environment not hostile to them. If a workplace is full of anti-female or anti-minority speech, the worker can sue, claiming harassment, and the employer can put a st op to such speech.

  • Free speech and Free Press: Many civil libertarians maintain that government should not restrict speech or the press, period. This proscription applies as equally to the speech of street corner radicals as it does to the campaign expen ditures of political candidates, or multi-million dollar corporate speech.

    Civil rights proponents say speech can be limited if that speech makes it impossible for women or minorities to get equal educational and employment opportunities. Also, in an age of corporate media conglomerates, sometimes the speech of some weal thy individuals and corporations can drown out the speech of those without such personal resources, tilting the "richness of the public debate." Accordingly, government may limit certain speech, like campaign expenditures, and provide subsidized media ac cess for underrepresented and marginalized points of view.

    These two camps -- the civil libertarians and civil rights advocates, the former concerned primarily with liberty and the latter with equality -- are becoming increasingly hostile toward one another, fracturing previous progressive alliances and coalition s. Friends and families are taking sides in this internecine struggle, fundamentally altering the political landscape.

    The battle between liberty and equality boils down to an even more fundamental question regarding the extent to which government intervention should be relied upon as a remedy for achieving equality. This elemental debate pits labor, environmentalists, a nd radical feminists versus a civil libertarian/laissez faire view of individual political and economic rights. On the one side we have a strong government intervention tradition in dogged pursuit of equality, growing out of the successes of post-war expe riments in social welfare policy and reform. Nationalized health care championed by Britain's Nye Bevin and the Labor Party, social security and unemployment compensation of FDR's New Deal, the Civil Rights and Voting Rights Acts of Lyndon Johnson's Grea t Society, a commitment to public education and low income housing -- all these and more have sprung from this tradition. This tradition calls for progressive taxes and expansionary fiscal policies, as well as government intervention to constrain the ind ividual property rights of developers and polluters, of pornographers, of multinational corporate free traders who want to pick up and move their factories -- their private property -- to the low wages and lax environmental standards of the Third World.

    On the other side we have the civil libertarian/laissez faire tradition, adamantly opposed to government intervention. Whether the group is the American Civil Liberties Union, the National Campaign for Freedom of Expression or Thatcher/Reagan-Bush/Mulron ey free traders, the goal is limited government and less regulations. The civil libertarian approach champions individual rights and limited government in the social sphere, while the free marketeers champion the same in the economic sphere.

    American conservative economist Milton Friedman, speaking of the classical liberal position -- roughly equivalent to the conservative position today -- posed the dilemma this way:

    "The [classical] liberal will therefore distinguish sharply between equality of rights and equality of opportunity, on the one hand, and material equality or equality of outcome on the other...At this point, equality comes sharply into conflict with freed om; one must choose. One cannot be both an egalitarian, in this sense, and a [classical] liberal."

    That was in 1962. Obviously this tension has been going on for a long time, especially between conservatives and progressives. But lately the debate is swelling within the progressive ranks themselves, as civil rights proponents press ahead for equality while civil libertarians defend their classical version of liberty.

    The First Amendment to the U.S. Constitution nicely illustrates the complexity of the current tension between the proponents of liberty and equality. The First Amendment says that the government "shall make no law abridging the freedom of speech or the p ress." In practice, the jurisprudence of the First Amendment embodies two distinct legal principles, the "autonomy" principle and the "public debate" principle. These principles represent a battle within the First Amendment itself about the meaning of l iberty, about two distinct ways of understanding the democratic purposes of the First Amendment.

    Those who regard the First Amendment as a protection of individual liberty, of "autonomy," believe that the individual must be allowed to say what she or he wishes, free from government interference. The classic example is the street corner radical, inve ighing from her or his soapbox unmolested by a police officer. But autonomy -- the first principle -- is protected not as an end in itself, but as a way of producing the second principle, a public debate that is, to use Supreme Court Justice William Bren nan's now classic formula, "uninhibited, robust and wide open."

    The jurisprudence of autonomy -- of the soapbox on the street corner -- stands as the cornerstone of the U.S. free speech tradition today. Expenditure limits for political candidates, despite their broad popular support resulting from a perception in the U.S. that elections are for sale to the highest bidder, has been struck down as unconstitutional based on the autonomy principle. Autonomy has been zealously protected, but some legal experts increasingly feel this hard-fought victory is a pyrrhic one. Nowadays, with the increase in private control of the ways we communicate by dominant players like NBC, Rupert Murdoch, the New York Times and other tentacles of the corporate media, autonomy is seen by these critics as increasingly insufficient to assur e the second First Amendment principle -- "a robust public debate." Oddly enough, they say, autonomy might even become destructive of that goal, since the domination of the London Times, NBC or the New York Times -- their "autonomy" -- may crowd out oth er agents, leading to the current situation, in their view, where autonomy/liberty and "robust public debate"/equality -- the two First Amendment values -- have diverged and become antagonistic.

    One of the most eloquent proponents of this view is law professor Owen Fiss of Yale University. "Control of the market," says Professor Fiss, "belongs to those who have the wealth and the advertising budget. To the extent that we rely on the market, we will be very far from the public discourse the First Amendment demands." The freedom to speak, says Professor Fiss, depends on the resources at one's disposal, and more is required these days than a street corner or a soapbox. Effective speech is neithe r free nor cheap.

    Proponents like Professor Fiss call for a more vigorous jurisprudence centered around the "robust public debate" principle, providing a foundation for remedying the impasses of autonomy (like political campaign expenditure limits). According to the publi c debate principle, autonomy is to be protected, but only when it enriches public debate. And there are times when it might well have to be sacrificed, particularly when the speech of some media giants or wealthy special interests -- say, the National Ri fle Association, or medical insurance companies, or an affluent political candidate -- drowns out the voices of others. At the core of the public debate principle is a conviction that any institution, corporation or individual with a lot of money can be as much an enemy of free speech and the public discourse as the government. The free market itself is a structure of constraint, just as governmental censorship may be, tending to channel, guide and shape how that autonomy will be exercised. Conversely, the public debate approach maintains that the government may be a friend or referee to speech and public debate as much as it may be an enemy, just as it has been a friend to civil rights, education, low-income housing and, in Great Britain, Canada and e lsewhere, national health care.

    Many civil libertarians cringe at the thought of entrusting government to intervene and act as a referee in matters of speech and the press, vilifying anyone who might suggest such a course. Yet the civil libertarian camp has yet to delineate any clear di fference between the other various spheres of government intervention and matters of speech and the press. While many civil libertarians are in favor of a strong public presence in matters of education, art, low income housing, regulation of banks, etc., they reserve special treatment for the arenas of speech and the press. Meanwhile, conservatives and free traders reserve special treatment for their favorite areas of government non-intervention, like for instance, the economy, public education and hous ing. No clear rationale has emerged as to why, where and when government should intervene in some areas and not in others. In that sense, every time Madonna, the Playboy Foundation, the American Civil Liberties Union, or the Center for Constitutional Ri ghts crow about the benefits of unmolested free speech, they are ironic accomplices to their counterparts from the limited government/laissez faire tradition, namely Thatcher, Mulroney, Reagan/Bush and the free marketeers.

    Herein, then, lies the conflict between the civil rights and civil libertarian positions. In the realm of civil rights, they don't so much disagree on the overarching goal to be attained --social justice -- as they do on the means that will achieve it, a nd on how much of someone's liberty/autonomy should be sacrificed to elevate someone else's equality. The "animal spirits" of liberty in a competitive free market society has a tendency to crush a fledgling like equality. Is it is wise to allow the democ ratic drive toward equality to be captured by an unrestrained desire to protect liberty and its offshoots, free markets and private property? Or must a balance be struck between the two competing interests, between equality and liberty? And what might s uch a balance look like?

    Such a balancing is essentially what the Canadian Supreme Court attempted to write into law. It considered both the freedom of expression provisions and the equality provisions of the Canadian Charter of Rights and Freedom, and then rendered its decision . Kathleen Mahoney, law professor at the University of Calgary who argued the case for the Women's Legal Education and Action Fund, commented on the court's decision: "The court said that while the [civil rights] law does limit the charter's freedom of e xpression guarantee, it's justifiable because this type of [pornographic] expression harms women personally, harms their right to be equal, affects their security, and changes attitudes toward them so they become more subject to violence."

    The women's equality forces hailed the decision as a victory. Meanwhile civil libertarians, claiming the decision came at the expense of some people's liberty and by enervating a sacred fundamental principle, immediately began plotting their counter-atta ck. Formerly allies, the two camps now fall upon each other with a sororicidal vengeance.

    As women and minorities continue their democratic drive into the mainstream, there will be many such challenges. Society is ever-evolving; today's principles get re-interpreted and reflected in the dialectic that produces tomorrow's public policy. The ro und of policy debate that is upon us will be asked to balance liberty with equality. The new kids on the block are in a feisty mood, having waited a long time for this day, and they will not be appeased easily.

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