The Limits of Civil Liberties
I first met the B.C. Civil Liberties Association (BCCLA) in classically romantic circumstances –- well, “classically romantic” from the perspective of a student radical in his mid-20s living through a politically tumultuous decade. It was March 1968. I was in jail at the Vancouver police station at 222 Main St. My alleged crime, and that of my 16 fellow and sister prisoners, was “loitering” in the public square on Georgia St. in front of the then Vancouver Courthouse (today, it’s the Vancouver Art Gallery).
It was from my cellmates behind bars that I heard that my University of British Columbia philosophy professor, Bob Rowan, was protesting our arrest in front of the station with other placard-bearing members of the BCCLA.
The rumour about the usually undemonstrative Professor Rowan, who I knew was one of the founders of the BCCLA, demonstrating against the forces of dubious law and too much order may be apocryphal (I’ve managed to keep forgetting to ask Bob about this for three or four decades now). In terms of demonstrativeness, I was the hot-headed radical who burst into Rowan’s classroom one morning to announce that “Thrasymachus was right!” Thrasymachus, in case you’ve been away from school for too long, is a character in Plato’s Republic, the ancient Athenian classic we were calmly reading that semester in Rowan’s class, while campuses around the world (including ours) were engulfed in protests, speeches, and heated arguments.
I regarded good ol’ “Thras” as a proto-Marxist rebel in the ancient Athens of Socrates and Plato. Thrasymachus was the one who saw through the power ploys of the local ruling class, and also saw through the academic jabbering of Socrates and his pals, as they diverted attention from the real problems of the day by abstractly searching for knowledge and truth. Professor Rowan took my brilliant discovery about the real meaning of The Republic with surprising calmness, standing, as was his habit, at the windows of the classroom, aimlessly twiddling with the cord attached to the windowblinds, and picking imaginary lint from his trousers, his leg hoisted onto the radiator to facilitate the task. Rowan suggested we talk about it – about Thrasymachus, political power, ideology, ruling classes, knowledge, truth and all the rest. Which we did, for the next several weeks (and years), interrupting our academic discussions only to occasionally go into the streets to right the wrongs of the world.
That’s how I got to Courthouse Square. The Vancouver mayor of the day, Tom “Terrific” Campbell, a lawyer and one of a long line of real estate promoters who ran the funky but financially ambitious West Coast provincial city, was, for some reason, infuriated by “hippies.” The object of the mayor’s wrath was mostly young people who had made the pilgrimage to Vancouver from Quebec, and were now sitting, or lounging, or “loitering” on the steps of the Courthouse at noon hour, getting in the way, according to the authorities, of innocent, “decent” office workers who were also hanging around the square, as was their custom at that time of day, rummaging in their brown paper lunch bags for sandwiches neatly wrapped in waxed paper.
The mayor also had some local hippies to worry about. Some of them had launched a weekly newspaper, The Georgia Straight, which was apparently in favour of such arcane ideas as free speech and other rights, but not in favour of the mayor. Some of them were teaching in so-called “free schools” that had clever names like Knowplace and the Free University of Canada in Kitsilano (the acronym of this mythical institution was apparently not printable in local “family” newspapers). Others were providing “alternative” social services, such as attending to psychedelic drug overdoses, through such organizations as Kool Aid.
Others were living in “communes” and planting gardens instead of mowing their lawns. Some of them were smoking dope. A few were playing “rock n’ roll” music. And all of them, the mayor and other “decent” folk were certain, were engaged in a continuous sexual orgy. There was even a Town Fool garbed in harlequin costume and plying his trade on a government grant. No wonder Mayor Tom Terrific dubbed these lazy, unemployed, loitering types a “scum community” who were making life unpleasant for “decent” (“decent” was an important word in the mayor’s vocabulary) people, decent citizens, and decent families.
I may as well confess I was guilty of most of the above crimes. A founding member of the hippie newspaper, a volunteer teacher in a nearby free school, an “acting mayor” of a loose civic coordinating group known as the “Alternate City Government”: portrait of a youthful activist. What’s more, I was dwelling in a beachfront Kitsilano commune (the rent totalled $225 for the seven of us), writing the lyrics of romantic rock songs for a group called The French Hand Laundry (our big hit was a marijuana song titled “What’s in the Doctor’s Bag?”), and attending Professor Rowan’s political philosophy courses and several other academic offerings, as well as working at a part-time job and doing a good deal of campus politicking.
Somehow, I managed to find time in a busy schedule (this was the era before digital day-planners slowed you down) to take my free school class to the Courthouse Square in order to deliver a talk about the history of colonialism in Canada, with special emphasis on the role of the Hudson’s Bay Company. We went to the square because the Hudson’s Bay department store, kitty-corner across the street from the square, provided a vital visual aid to the lecture (this was also the era before PowerPoint tools). It was the day, we had learned in advance, that the mayor had decided to send in the local constabulary, armed with anonymous “John Doe” warrants, to clear out the square. I was soon rounded up.
Whether the story about Professor Rowan and the BCCLA demonstrating outside the local lockup is apocryphal or not, my connection to the association was soon made formal when then BCCLA president Sid Simons, and his associate Joe Woods, volunteered to represent the loiterers in court. Eventually, Simons and I appeared before a magistrate as a “test” case (charges against the others were stayed) and I was offered a conditional discharge. The condition was that I sign (and pay for) a bond pledging to keep the peace. In my best Thrasymachean manner, I pointed out that I was already keeping the peace, and that it was the foul-mouthed mayor and his police, enforcing arcane laws, who were disturbing it. The magistrate dismissed this bit of sophistry and shipped me off to Oakalla provincial prison to think it over. Armed with my copy of Henry David Thoreau’s “On Civil Disobedience” and a toothbrush, I was duly carted away.
Since I was making a point rather than defending a principle about peace bonds or attempting to display “contempt of court,” I remained in Oakalla only long enough to declare myself a one-person Blue Ribbon Royal Commission inspecting prison conditions and to write a couple of columns for the Georgia Straight. In the interim, we received maximum sympathetic media coverage and the local top radio DJ, Terry David Mulligan, even dedicated a rock song to me that perked up my spirits as I listened to it in my prison cell. Once the point had been made, I checked myself out of the hoosegow, a privilege not available to most other denizens of ancient Oakalla, except the flocks of birds who flew into and out of the atrium around which the floors of cells were stacked.
In due course (“due course” usually means several legal light-years), the flimsy “loitering” and “vagrancy” laws by which the mayor sought to stifle freedom of assembly, speech, and the right to be a pain in the butt came under judicial scrutiny, thanks to organizations like the BCCLA and lawyers like Sid Simons and many others who contributed their time and skills, “pro bono,” to defend a notion of “public good” that’s almost always under threat. And, for a while, laws originally designed to control the poor and harass prostitutes, but occasionally also used to handle political dissidents, were either repealed or rendered obsolete. (Still, craftily updated versions of such decrees are regularly hauled out even today against poor people and sex workers.) Eventually, the mayor retired to private life and, much to his credit, never again uttered a public word about anything. He died in 2012.
In further due course, I grew up, became a philosophy professor, and was dragged onto, er, elected to the board of directors of the BCCLA, thanks to the urgings of then BCCLA president John Dixon, who, coincidence of coincidences, had been a classmate of mine in Professor Rowan’s political philosophy class where we had discussed Plato’s Republic all those years ago. As students, Dixon and I were shipped out for a stint with Rowan’s teacher, Joseph Tussman, at the University of California at Berkeley. And, almost inevitably, we were introduced by both Rowan and Tussman to the works of Tussman’s own teacher, Alexander Meiklejohn, a philosopher, educational reformer, civil liberties activist and the most powerful proponent in the U.S. of the notion that citizenly education and free speech in the public forum were at the core of any viable democracy. Thus, by luck and accident, Dixon and I were among the inheritors of a civil libertarian legacy and lineage, or as Dixon likes to put it, We’ve been living off the crumbs from their table ever since.
As the association celebrates its 50th anniversary, I find myself inclined not so much to reminiscing (although, as you can see, I’m willing to do that, too) as to, in the spirit of good civil libertarians everywhere, worrying. I find myself thinking not so much about our accomplishments as about both the limits of civil liberties and what lies beyond, the broader field of our political and cultural condition.
Since I want to, in part, ponder what civil liberties can’t do, I should, to forestall accusations of apostasy, preface my comments by declaring that I’m pretty much in agreement with all the major positions of the BCCLA. Not only am I in agreement with the association’s ideas on such matters as prostitution, polygamy, free speech, abortion, civil disobedience, and most of the rest, but I’ve also had a chance to throw in my two cents and raise my hand when it came to devising those positions about freedom in a democratic society over the last quarter century.
Here’s some of what I mean about limits: there’s a “Twilight Zone” type community in British Columbia called Bountiful, B.C., home to about 1500 stranded souls. It’s run by a breakaway fringe group of the Mormon Church, and it endorses the concept of polygamous marriage, especially for the male church leaders. It not only endorses such practices, it also more or less successfully indoctrinates its young female members to believe in and abide by this holy doctrine.
There’s a Canadian law that criminalizes polygamy. It bans not only multiple marriages but any form of polyamorous relationship. After considerable hemming and hawing, the government of B.C. decided to enforce this law against the leaders of Bountiful. Naturally, the church leaders claimed that the law was unconstitutional, a violation of their freedom of religion. When the challenge to the law headed to court for some judicial scrutiny of its constitutionality, the BCCLA promptly intervened to help the court’s deliberations, as it has done over the decades.
The civil liberties view about Canada’s anti-polygamy law is that it’s unconstitutional. It violates the section of the Charter of Rights and Freedoms that protects our liberty and the “security of the person.” As the BCCLA’s pro bono lawyer put it, the anti-polygamy law “invites the state to inspect the bedrooms… of consenting adults who find fulfilment in plural relationships.” A press release added that the BCCLA believes “individuals should be free to make the life choices they wish so long as those choices do not harm other people and they engage in them with free, informed and full consent.” As for claims of child abuse and sexual interference alleged to be associated with polygamy in Bountiful or anywhere else, the BCCLA favours vigorous investigation of criminal activity, and rigorous enforcement of sexual abuse laws by the police, rather than intrusive anti-polygamy laws.
As it turned out, the judge in the case disagreed with the BCCLA. He decided that polygamy in itself causes harm and that the anti-polygamy law is constitutional and probably a good idea. And there matters stand for the moment. The law is upheld and might be used anyday. Civil libertarians like me think the judge is wrong and are wary of laws that tell people how to live their private lives (remember those old laws against mixed marriages, homosexuality, etc.?). And meanwhile, life in the Twilight Zone, aka Bountiful, B.C., goes on.
So while I think the civil libertarian position is morally and legally right, I’m worried about life in the Twilight Zone. I know just as well as the next person that what goes on in Bountiful is wingnut brainwashing of young girls, and a whole bunch of other dubious practices. But I doubt that I could prove it in a court of law. As with other religious and political cults, you can seldom find members of the cult or anyone else to provide evidence that there was brainwashing, absence of consent, or abuse of any kind. Sometimes it’s suggested that we protect Bountiful by means of education. Since Bountiful, like all other communities, is required to live up to B.C. school laws, all we have to do is send our school inspectors in and prevent brainwashing. Except, in practice, it just doesn’t work.
It’s certainly reasonable to favour liberty when it comes to interpersonal relations, up to and including genuinely consensual polygamy. But it doesn’t solve the difficult problem of what actually goes on in places like Bountiful. And that, it seems to me, is a limit of this particular civil liberties position. We could say, I suppose, well, we have a sensible position about individual liberty; as for what goes on in the Twilight Zone, we should send in the police if we have grounds for believing a crime has been committed, and if we don’t have good grounds, gee, that’s unfortunate. Or perhaps we can say, We have a sensible position about polygamy, and while we think something bad is happening in Bountiful, we don’t know what to do about it or how to get at it legally. And we might add, We already know about the limitations of the civil liberties position, but we try. We try.
Something similar can be said about prostitution and pornography legislation, issues that the association has been actively involved in for a quarter-century or more. The BCCLA’s position is that actions between consenting adults that don’t cause direct and measurable harm to others should not be forbidden, or otherwise interfered with, by the Canadian state. In Canada, prostitution is legal, but the activity is hedged in by a series of laws preventing brothels, or living off the avails of prostitution, and that prohibit communication in a public place for the purposes of soliciting for prostitution. The BCCLA opposes all those subsidiary laws on the grounds that they’re unconstitutional, and endanger the lives of sex trade workers. As recently as this year, we’ve intervened in court on behalf of the rights of such people to individual liberty and safer working conditions, and we’ve even made some progress.
At the same time, civil libertarians, like other citizens, are aware that the world of prostitution is rife with violence, drug addiction and exploitation. What’s more, heterosexual prostitution especially engages the larger question of sexism against women. What I notice is that all our ponderings about what to do about prostitution – whether to decriminalize it, fully legalise it, or regulate it by means of the state –- do little to undercut the real exploitation, violence, and associated criminal activities that permeate the activity.
We’re also aware of more extreme possible remedies. For instance, the Swedish state is currently attempting to extirpate prostitution in Sweden by criminalising and arresting the customers of prostitutes, on the theory that the very act of prostitution is itself harmful to the prostitutes. But we think this description of paid sexual services is a partial rather than accurate account, and that arresting the mostly male customers is a dubious moral proposition, even though it’s the sincerely held view of a certain segment of the feminist movement as well as the Swedish state. Even if substituting the evil of the curtailment of liberty for the evils of prostitution could conceivably produce an improved human condition, we retain our doubts. In the end, while not abandoning our view that consenting adults who aren’t causing harm to others should be allowed to do as they please, we also have to dispense with any illusion that our upholding of civil liberties in this instance does anything more than mildly alleviate an unsolved social problem. Again, most civil libertarians are already aware of the limitations of our interventions. Still, better to intervene than to do nothing. We try. That’s the battle cry that provides what small comfort is available to the liberal enterprise.
Finally, there’s the issue that is more at the heart of civil libertarian endeavours than almost any other: free speech. The BCCLA holds the view that free speech ought to be pretty much an absolute in democratic society, excepting only speech that incites immediate harm, false and harmful advertising (such as that for tobacco products), and libellous speech that deserves punishment. Civil libertarians have fought the good fight, with some success, to protect the expression of unpopular views, the right of artists to experiment with discourse, and the broadest speech rights possible in the political forum.
Yet, what I think of as the “Antinomy of Free Speech” is perhaps the most insoluable of all present problems. Here I think there’s something different from the recognized practical limitations of our specific efforts to improve the lot of both ordinary citizens as well as oppressed and/or unpopular people in our polity.
I want more or less absolute free speech in a democracy and yet it’s also free speech that produces a dangerously dumbed-down, commercially obsessed, distracted and devalued society. Here, I’m not thinking about merely false, harmful commercial advertising or the heavily-financed “negative” political advertising that distorts contemporary election campaigns; we might be able to do something about such things through laws prohibiting false, harmful advertising, and limiting spending for campaign advertising.
Rather, I’m thinking of the much broader categories of normal communication that undercut education, public intelligence, and critical thinking in the democratic forum and everyday life. In a sense, we have a surfeit of speech these days. The current technological revolution ensures that people are incessently chatting, texting, tweeting, Facebooking, blowing up stuff on video games, and filling their heads with the musical messages imparted by an endless soundtrack of iTunes. Speech these days is both banal and apocalyptic. (Yes, yes, I know: so it ever was.) An ad for the latest violent video game offers as its voice-over punchline, “The end of the world never looked so good!”
It is the competing messages conveyed by speech that produce, at present, a cultural, political and moral condition in which serious book reading is in decline, especially among the young, as well as a diminished capacity to read with understanding or to write competently. What’s more, this qualitatively reduced literacy is correlated to “knowledge deficits” in history, geography, politics, science, the arts and civic participation. Actually, when it comes to competing messages, there’s not much competition. The messages that might counter the erosion of intelligent public-mindedness are pretty much drowned out by the commercial wisdoms of the day. Instead, there is vast “ignorance in the desert,” as one social critic put it, and this ignorance flourishes in a society that has achieved the broadest degree of free speech in history.
As should be apparent by now, I’m not really talking about civil liberties but about the condition of our minds in contemporary society. Those minds, and what they pay attention to, or are distracted from, are shaped by a very complex ensemble of factors that constitute our intellectual context. There’s an extensive data base of empirical evidence in support of the rather grim interpretation I’m offering of our intellectual state, but this isn’t the place to rehearse the facts and figures.
What to do about it? Well, in The Republic that we studied in Bob Rowan’s classroom long ago, Plato had a proposal for a utopia. As my longtime colleague and friend John Dixon remarks, “And what a dangerous utopia The Republic offered, with its glorification of a garrison state sustained by lies, censorship, eugenics, arranged marriage, the rigid enforcement of a class system, and… relentless indoctrination from birth to grave.” Worse, as Dixon adds, “Plato explicitly attacked democracy as the next to last station on the road to political and cultural perdition, just short of tyranny… One of the principal points of his Republic is that democracy puts freedom and power in the hands of people who don’t know what they’re doing.” Despite all that, Dixon and I agreed that The Republic, which puts education at the heart of public life, is, with a bit democratic tweaking, one of the more sensible proposals to date of how to organize a society.
For those of us who are attracted to, and despair over, the democratic commitment, the people, in whose hands democracy puts freedom and power, more than ever “don’t know what they’re doing.” But our remedy for the erosion of public intelligence and consequent ignorance has long been and still is the institution of education. Yet that institution is itself under siege by a prevalent ideology that seeks to make education merely instrumental to job training. Not only are we assailed by commercially generated trivia, we are also told that you don’t need to know anything except what’s technically necessary to secure employment. As a society, we have little appetite for focusing education on citizenship, cultural enlightenment and critical thought, though we pay perfunctory lip-service to those values.
An antinomy is a description of an irreconcilable condition that by definition doesn’t admit of easy, or perhaps any, remedy. That condition has to be of vital concern to civil libertarians since it renders irrelevant much of our effort.
None of this exploration of civil liberties and beyond is a recommendation to retreat from any of the ideas that organizations like the BCCLA have advanced. Rather, it’s a recommendation to be diffident in the face of what may be insurmountable difficulties. Perhaps Thrasymachus, as I thought upon first reading, really was warning us about the dangers of mindless political power and the intellectual distractions of the day. If so, he may not have been completely right, but he had a point.
Berlin, May 12, 2012.