Friday, December 08, 2006

TODAYonline: Penal Code Public Feedback

When the Going gets Tough, I get to Blogging

I suppose I could say that I don't have much reason to doubt the veracity of this article. But what's omitted is as important as what is expressly said.

I belong to the Young Republic, a non partisan mailing list which discusses a whole bunch of issues ranging from social to political to economic to science and even literature (rare but it happens). Admittedly we've lost a couple of conservative voices over the past 2 years but quite a number of us, even if considered extreme liberals or libertarians or whatever jargon that's being mentioned, hold sufficient centralist views and even conservative ones (on economics, I would be considered rightist and there's always the libertarians to count on).

So even if we account for the general social liberal bent that the vocal posters on the mailing list (and the blog(s) that we sometimes refer to), it doesn't explain the one paragraph mention of s. 377 and s. 377A (which currently are just sexually regressive but if the recommendations pass, it would just be anti-homosexual and for no good reason). According to 3 different persons who were at the Women's Forum, they was unanimous support for getting rid of the provisions outright, yes even among the presumably straight older section of the forum participants.

As such, making a one paragraph reference to it and giving Alex Au a one line quote is simply not doing the issue any justice. I would venture as far as to say, it's akin to giving the NAACP a one liner when deciding whether to decriminalise inter racial marriages during the Civil Rights Era. It's simply ludicrous in the face of the disproportionate length the other issues get.

Anyway, at the very least that was mentioned. The part about criminalising the act of hurting a person's racial feelings on top of the already criminal act of hurting a person's religious feelings was not even mentioned.

But the more entertaining debate occurred on YR when I shifted my stance on free speech and expression and argued for the extension of such laws to stamp put "hate" speech on the basis of gender, sexual orientation and medical condition in circumstances that we're seeing now i.e. the extension of speech protection to groups who arguably need it least given all the socialization that we've had from NE and the multitude of Racial and Religious Harmony Day.

Of course I got called out on it but it became an issue of whether it was sensible/rational/right/proper for someone who takes the intellectual position that all speech should be free regardless of their viewpoint (not incitement to violence mind you) to nevertheless argue for an even more encompassing anti-speech protection. It was a good debate as these things go, given the constraints of having our respective exams on at the same time but it is revealing insofar as how for me now political expediency trumps intellectual positions in certain situations.

And I think the reason for my shift in thinking is I'm seen the extremes to which intellectual positions can be taken, particularly in the legal field. I will not deny the attractive of the proposition especially in Constitutional law that Judges ought not to make law but merely declare it and as far as possible give effect to the original intent of the drafters/legislators (if alive) who at least are accountable to the people through elections. Of course, I think this disregards the fact that the original drafters of the Constitution (any constitution for that matter) were made by people from a different era (*insert joke here of how EU Parliament legislators are seen to be from the Country of EU Parliament), and it would behoove us as the living to be controlling by the dead hand of law givers long past.

I don't want to make this a post on Originalism and why I think it is simply currently used as a facade to advance certain socially conservative positions but I want to explain how an intellectual position can be taken too far if divorced from reality. [I want to emphasis here that this point and from here onwards now has no bearing on the issue I mentioned above except very and I do stress very tangentially.]

I generally do not think that the government is necessarily bad. That whether big or small, governments can do harm or ill. But, it is true that the larger the government, the more power it has and the more it can generally impinge on our lives if it chooses to do so. Anyway, the discussion was on First Amendment constrains on the government when it chooses to subsidize speech or penalize speech. One of the more controversial areas was whether the government could in effect force a particular decision on you in return for giving a benefit.

To take an example (and this was an actual exchange between me and the interviewer for my law interview), should the government be allowed to require you to take a specific subject in return for a scholarship? At that time, I couched my answer in terms of a benefit that the government does not have to give and hence, could put restrictions or make it a criterion for acceptance i.e. if they give you money, they sure can put strings on it. But when pressed for an opposite viewpoint (why oh why couldn't they ask about something else instead), I couched my argument in terms of the negative consequences of people doing something they did not enjoy. Note that my argument was based on a cost-benefit analysis i.e. it does not answer the basic principle that I was originally advocating.

And for all intent and purposes, I still adhere to that particular principle. But the problem comes when the government gets so large that it can through these problems effective buy your speech or to dry up speech. So for example, a particularly odious program effectively forces doctors to say that abortion is not a form of family planning and they could not speak about it when women come to a federally funded family planning clinic. Or to take another example, the government could simply pay every single journalist to write glowing reports about it and it would be perfectly constitutional.

There is of course, a strong principle behind this i.e. the government should not have to fund competing speech e.g. if it funds anti-smoking campaigns, we do not expect it to fund pro-smoking campaigns. What the government is entitled as the representative of the people to represent their speech i.e. governmental speech. In the earlier examples, the government is simply purchasing speech from those who would speak on its behalf.

But the most important distinction is that in one case there is no worry about the eradication of a particular viewpoint, so Philip Morris and gang, having sufficient money, will still be able to continue to buy their own speech. But even then, it is not inconceivable that the government will be able to outspend them and basically flood the advertising world with so much money that no one will work for the tobacco companies. What more when we are talking about individuals or smaller organisations? That's the problem, that big government can silence speech more easily than small government can.

So it's one thing to adhere to a principle when it is premised on a particular groundwork but it's foolhardy to adhere to it when the premise of that principle has been reversed.

I still think that speech should be as free as possible and it's ridiculous for any worldview (I don't think race or even verifiable history is a worldview but I think hate speech is better combated by showing how inane it is rather than trying to criminalise them) granted immunity from being criticized or offended but when it's a done deal that religion is going to be protected through anti-speech provisions, I figure it's the lesser of two evils.

I don't like it and I sure as hell could be wrong and it could set off a wave of vindictive reporting (I'm just less sad that homophobes will be targeted now). Or even entrench anti-speech provisions so tightly that they will never be eradicate (that's what a constitutional amendment is for). Furthermore, between this and a choice to eradicate all anti-speech provisions altogether, I'll go for the latter.

Anyway, it's a fairly academic debate seeing as how "teh gheys" still have to deal with their expression of sexuality being criminal. I think anti-speech protection is less of an issue for now.


Labels: , , ,


Post a Comment

<< Home