Vice Dean A/P Victor Ramraj responds to Asst/P Yvonne Lee

The freedom to disagree, respectfully
Victor V. Ramraj, For The Straits Times
9 May 2007
Straits Times
English
(c) 2007 Singapore Press Holdings Limited

IT HAS been argued that the decriminalisation of sodomy is the first step on a slippery slope towards a 'homosexual agenda' that includes civil unions and same-sex marriages.

I disagree with this view and the arguments advanced in support of it. Still, the debate on this subject has provided us with a key lesson on the importance of public discussion on matters of deep moral significance - and the importance of respectful disagreement.

First, a few comments on some of the claims in the debate.

Even in societies abroad where legal structures such as same-sex civil unions have been introduced, this did not happen overnight, but only after significant shifts in social and political attitudes.

If the majority of Singaporeans find homosexuality offensive, then there is little reason for them to worry that the entire legal landscape will change in an instant.

If change eventually does come, it will follow only after open and respectful debate and a conscious choice on the part of Singaporeans to become a more tolerant and hospitable society.

Others, particularly in cyberspace this past week, have challenged the accuracy of empirical claims behind the argument to retain sodomy as a crime - and the debate will no doubt continue. I will not repeat these arguments here. As for constitutional law, formal constitutional doctrine on such matters is hardly conclusive. In 1930, Lord Sankey likened a Constitution to 'a living tree capable of growth and expansion within its natural limits'. Particularly in Singapore, where the methodology of constitutional law is still evolving, there is much to be said for this vision.

Intolerant vs criminal

I WANT to turn, however, to a rather different point that arises from this controversy. Does branding opponents of decriminalisation 'intolerant' undermine or effectively censor free speech?

Surely, the answer to this question is no. Indeed, the reverse may be more likely; opponents of decriminalisation effectively silence others by continuing to regard the behaviour they oppose as criminal. To be branded intolerant is one thing; to be branded a criminal is quite another.

The publication of letters and commentary in this newspaper shows that those who disagree with decriminalisation are perfectly free to express their views. Perhaps, then, the deeper concern is not that these views will be censored (plainly, they haven't been), but that others will not find them convincing. If that is the true concern, then rigorous and respectful persuasion would be the answer.

If the discussion on Singapore blogs is any indication, recent exchanges about the decriminalisation of sodomy have provoked an important debate, one that demonstrates that Singaporeans, including many tertiary students, are far from apathetic when it comes to issues of great social significance. An issue of profound social importance is receiving the serious public attention, reflection and debate it deserves.

The sources of identity

FOR those who choose to engage in this debate, let us remind ourselves that our words have profound personal impact on those around us, on both sides of this controversy.

Those whose religious views are tolerant of homosexuality, and especially those of us with secular-humanist inclinations, must remain sensitive to the deeply personal and communal role that religious doctrine plays in the lives of many.

At the same time, we must have faith that those who oppose the decriminalisation of sodomy on religious grounds will acknowledge that personal identity need not be a matter of religion at all. It is possible, even common, to define one's identity outside of religion - in terms of one's intimate relationships, career goals, community service, life-long projects and deep personal convictions. A person's sense of identity is no less worthy of respect in the public square on account of its secular sources.

I can only imagine the deep personal anguish experienced by gays and lesbians in Singapore when confronted by the criminal law. Their voices should be heard in the spirit of an open, respectful and meaningful discussion.

Whatever is said in the course of this debate, it is clear that someone, somewhere, will take offence. But the ability for all to speak out should not be taken for granted. There are reasonable limits to be placed on hateful speech - a view that I have defended elsewhere. But in the present context, in a society that is increasingly more open, I find myself drawn to the pithy comment sometimes attributed to Voltaire: 'I disapprove of what you say, but I will defend to the death your right to say it.'

Just some background, A/P Ramraj runs the Criminal Law/Criminalization aspect of Introduction to Legal Theory for 1st year NUS Law Students and having read his book, I can assure you he is well aware of both sides of the debate but having come down strongly on one side for obvious reasons.

He's obviously a lot more polite and cordial than I would have been but this is still a very punchy article. Separately, he takes a much more accommodationist stance with regards to religion than I would (the difference between fairy tales/myths and religions is the number of adherents. Watch the rise of Scientology and I predict it will go the way of the Church of the Latter Day Saints in becoming mainstream).

This is probably the last I will say on this particular matter because the good Asst/P doesn't have much of a leg to stand on beyond whining about personal attacks (accurate insults much less insults don't detract from the substance of the argument) and playing the two-step by shifting the grounds of her argument.

Not impressed then, not impressed now.

Addendum: Link to my original response added above and here.

Equal Protection, Sexual Orientation and the Homosexual "Agenda"

Been busy but have found some free time now that I've got drafts out on my Philosophy of Law paper and International Merger & Acquisition.

Anyway, Asst/P Yvonne Lee wrote the following article articulating her viewpoint about why decriminalization of homosexuality in Singapore would be an error and I think her article is pretty much logically fallacious on a number of grounds. I had her as a lecturer and thought she was decent and fairly sensible unlike the other constitutional law profs who have made their (erroneous) feelings on this matter pretty clear. As such I must say I am sorely disappointed by her views (not that she would care of course)

A/P Victor Ramraj has a response here. He makes most of the major arguments that need to be made but unlike him, I don't have space constraints.

READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.

The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.

This is an over-simplistic reading of the equality clause.

It should be worth noting that given she was US educated and cited a US Supreme Court case upholding Affirmative Action in University Admissions, she ought to have been aware of Lawrence v. Texas as well, which struck down Texas's anti-sodomy laws as violating the 14th Amendment (Equal Protection Clause). I raise this because despite raising the constitutional issues, I believe it is her analysis that is the overly simplistic one, one governed primarily by parochial and a highly formalistic approach. As we shall come to see, she simply relies on a logical fallacy that the status quo is good in defending the legality of this homophobic piece of legislation.

Worse still, she never provides a substantiation for why we ought to discriminate between heterosexual and homosexual couples. To reframe the issue, it isn't about the right to homosexual sodomy but rather the right for consenting adults (which takes out the fucking stupid pedophilia and bestiality argument out of the water) to engage in sexual acts in the privacy of their bedroom.

Context
FIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.

Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.

Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.

True but primarily irrelevant because she never establishes how a) it is in fact in the public interest to criminalize sodomy, b) to criminalize it only for homosexuals and not heterosexuals and c) to criminalize it only for male homosexuals but not female homosexuals.

At this point, under US Equal Protection Doctrine, it fails not only the rational basis test of Lawrence v. Texas but also the anti-animus principle of Romer v. Evans.

To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.

Again irrelevant and begging the question.

When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.

I could make the same critique again but I want to do it on a deeper level this time. She's begging the question on a meta-systemic level in that she is asserting that the current judicial interpretation of the Equal Protection Clause is necessarily the right one and the only one at that.

I will proffer instead that the whole idea of individual freedoms is that they cannot be at the mercy of the majoritarian will. Yes, no right is absolute as she correctly points, but her balance is one that would sacrifice the individual's right on the altar of "the public good" when she has provided no grounds for doing so. Short of "because" this is currently the way the legal rational basis review test is structured.

I also want to point out what the rational basis test can stand for. It stands for discriminating on any basis the government wants to. Quotas for women in medicine? Easy, allocation of scare resources, we have statistics that show women don't stay in medicine long. Only families with more than a certain level of income may have 2 or more children. Why? Because only they would be able to afford it etc. I submit that the rational basis test simply is incapable of striking down discriminatory laws, law which would strike the majority of us as unjust.

Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.

1) This should then apply to heterosexual sodomy as well
2) Preventive measures can be taken
3) It proves too much: on that highly paternalistic basis, we can ban any activity that is "harmful". Smoking, alcohol, skydiving, driving, eating fast food etc.
To claim that it threats public health is scare mongering and ultimately irrelevant to the consideration here. To iterate, if it's okay for heterosexual couples, why is it not for homosexual couples.

In fact, this is a good example of a measure being both "underinclusive" (why only gay men then?) and "overinclusive" where the ends-means nexus is not particular rational much less tight (preventive measure not bloody criminalization). Of course, our rational basis test is not going to strike it down.

Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.

Assertion, begging the question, non-sequitur. I find it utterly hysterical that a Constitutional Law professor is running this argument. Article 4 of the Singapore Constitution states that any law that is inconsistent with the Constitution, is to the extent of that inconsistency, void. So major premise, Constitution trumps any normal piece of law. minor premise, the notion of equality before the law is enshrine under our Constitution (yes one could make the argument that sexual orientation is not a protected class but I want to focus on the idea that the Penal Code trumps these individual freedoms). Therefore, the "abstract notion of equality' does in fact trump the Penal Code.

Oops.

Broader agenda
RECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:

It becomes clear at this stage, her arguments boils down to homosexual sodomy is icky and somehow morally wrong, despite never proving this particular point. I understand that in her exchange with Mr. Selby she takes offense to a great many things that he says. But not once does she actually demonstrate that she is not in fact myopic or homophobic etc.

Sorry, an accurate insult is not an ad hominen attack, Asst/P.

• If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'.

So what? Unless the right of consenting adults to engage in sexual activity in the privacy of their bedrooms is somehow wrong?! That's why I don't buy any of her arguments that she is not perpetuating an anti-homosexual agenda (see how framing and tossing terms around work? Except in my case, it's probably true).

• The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.

Again so what? I can legally have sexual intercourse with a secondary school girl. This is an appeal to emotions (another logical fallacy).

• The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.

Poisoning the well. Non-sequitur. The interesting thing is that unlike anti-gay activist here in the US, she can't use the Teflon coated slippery slope of polygamy because our legal system already sanctions it! Oops.

So what's the basis for why decriminalizing homosexual sodomy (as oppose to homosexual cunnilingus or masturbation which is legal by the way under the new Penal Code) will lead to such horrors and not the legal ones? Hmmmm now... Inquiring legal minds want to know!

Separately, so what if sexual orientation is a vague term, consenting adults, privacy of bed room. Yup that settles the problem of pedophilia or bestiality.

Whether one is "born gay" to me is an irrelevant question. One isn't born Christian or Hindu or Buddhist of Marxist etc. etc. It's a false argument. But the evidence tends to lean towards a genetic basis.

• An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.

So we smack them down if that happens. Big whoop. And besides, how is this even bad or worse than the current criminalization?

And gee, we do have something called the Maintenance of Religious Harmony Act which places quite a few restrictions on what religious figures can say so that's a legitimate restriction on her so-called religious liberty there. If preaching hate from the pulpit against political figures is illegal, why not homosexuality? And if rights aren't absolute, why should the balance swing against them? So once again, begging the question.

People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.

So what? Begging the question. And because I haven't seen a rational argument against homosexuality yet, yes I will brand them as intolerant, bigoted, homophobes and hateful. Please, I readily await being proven wrong.

Besides, oh boo hoo... Being called a bad name is worse being branded a criminal, or deviant or abomination unto god or specifically immoral as her article has insinuated. And because of religious privilege, one can't strike back as effectively.

I say that beliefs should not get a free pass just because they are "religious" in nature. And separately, Muslims and Christians aren't a majority and even there are divisions as to their viewpoints on homosexuality. And last I check, Singapore was a secular state. Between hurt feelings and genuine deprivation of liberty, I think I'll pick the latter thank you.

Public good? What's sauce for the goose is sauce for the gander. The claims is easier made that it is in the public good that valuable members of society ought not to subject to impermissible discrimination because of certain erroneous interpretations of some bronze age religions.

• The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.

So what? Assertions as to the nature of marriage. It so was not a bed rock in Roman Civilization. Under Roman Law, marriage (assuming it was not in manus which fell out of favour rapidly anyway) was purely consensual and divorce was simply a matter of deciding that one did not want to be in a marriage anymore. Changes to marriage and divorce occurred when Christianity became the state religion. As long as we're engaging in post hoc fallacies, we can also say that Christianity caused the downfall of the Roman Empire because its adoption preceded it.

And oh, the real fundamental basis of marriage and bedrock principle was that women were chattel and wives a extension of their husbands (under a Roman manus marriage, wives were consider children to their husband which explains their massive unpopularity and disuse). So what exactly is she arguing about here?

The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.

So what? Actually I would up the case of Plessy v. Furgeson where the US Supreme Court held that "separate but equal" did not harm the Blacks because any notions of inferiority was simply self-inflicted. The law does have normative force. The US Supreme Court eventually had to make a massive mea culpa in Brown v. Board of Education and reject this doctrine because they were proven wrong empirically and recognized that if the law says you're different or deviant, people actually buy that.

While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.

Non-sequitur. Firstly, presumes that the law should ban some and not all immoral behavior, I would love to see where she can logically draw that line. Second, begging the question that homosexuality is immoral. Third, my moral views on adultery can be grounded on non-religious grounds. I challenge anyone trying to do so for homosexuality on non-religious grounds.

The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.

This very neatly exposes her real agenda. The only explanation left for her argument is that she opposes homosexuality.

Back to US Constitutional law, the Court should not (especially under Equal Protection Doctrine) give succour to private prejudices, Palmore v. Sidoti, where the Supreme Court reversed a decision to give custody of the child to the father because the mother had married outside of her race to a Black man.

So why have this special provision which signals out homosexuals and only male homosexuals at all?!! We already have public indecency laws. Sorry ma'am, you can't have you cake and try to eat it. Now the article is just incoherent.

S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.

Assertion. Begging the question. Legitimate in the eyes of the law perhaps. But hardly moral. In fact if you're a Natural Lawyer, Lex Injusta non Est Lex, An Unjust Law Is Not Law. So even if the Constitution does not prohibit it, Natural Law does.

Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.

Assertion. Prove it.

So is adultery, so is the marital rape exemption which is finally going to be repealed. Using phrases like "aggressive homosexual rights agenda" just marks you out as a religious conservative right wing fundy using the same old repeatedly debunked talking points.

This has been a monumentally wrongheaded and badly written piece. I am always very happy to stand by what I say and always remain ready to defend them.

Addendum: Here is a philosopher's take (Editor of Royal Institute of Philosophy Journal Think) on the common arguments against homosexuality. It's a marvelous taking apart and a great read to boot.

Addendum 2: I realize that not all of us have such a distinct lack of life as to read up obsessively about logical fallacies and/or debaters. So I have included links that explain some of the terms I have used.

Name and Shame: Part of Broader Societal Game?

(h/t: The Kway Teow Man: Is it public shaming? Isn't it Citizen Journalism? and Tomorrow.sg)

Mocking Andy Ho shouldn't be this much fun but dang he doesn't disappoint with every single article he writes. Although to be fair, his articles against woo were pretty good, but being a medical doctor, he should be ashamed by his misleading article on the Terri Shiavo case, especially after the entire premise of his article (that she could actually feel "pain" i.e. suffer as opposed to simply reacting to external stimuli was thoroughly debunked by the subsequent autopsy).

But apologies for poisoning the well, here's what he has to say on this subject.

The Straits Times, Jan 11, 2007

For shame, stop this indignity

By Andy Ho, Senior Writer

SOME Singaporeans have taken it upon themselves to shame their fellow citizens when they do not like what they see.

A recent example: Someone posted on the Internet a video of a woman carrying a six-month-old child and boarding a train, whereupon some young, already seated, commuters seemed to fall asleep instantly.

Bloody hell! Why didn't I think of this earlier? As a general rule, I give my seat to anyone whom I think deserves it more than I do. Admittedly, I've stopped giving my seats automatically to females unless they're carrying more stuff than I am (or are carrying particularly unwieldy stuff) but as a general rule of thumb, anyone who looks older, or pregnant women or even kids with those ridiculously large school bags "get a free pass" from me.

As an aside, there was a spirited discussion from a group of elderly (rather elderly in my opinion) after I gave up my seat to one of them. According to my mother (who understands more dialects than I do and was closer to them anyway), they were split into two camps as to whether there was an obligation on my part to give up my seat to any of them. But it generally boiled down eventually to, it's nice but not an obligation.

While I certainly don't expect others to do it to me i.e. not a general obligation, I personally believe that I ought on the simple basis that it's a minuscule sacrifice on my part i.e. small disutility in contrast not only to the potential harm for someone who really needs that seat but also the much large utility accrued. And quite sometimes, I've manage to "persuade" others to do the same. I only bring this up because lately I've been coming across the canard that atheist are amoral since they lack the fear of a big sky fairy punishing them after they die and it's really annoying me no ends.

This act of public shaming drew a lot of online support. But it also evoked much criticism.

By inflicting disgrace on someone for many others to see, such cyber-pillories remove any ambiguity about what some in society expect from others. Friends and families might chide the perps (perpetrators) while neighbours may snicker.

Those who support the action say that not only are offenders chastened, but such shaming could also deter others from misbehaving. It might even rehabilitate the offender, if he is persuaded that his actions were wrong.

Shaming is democratic, they say, in the sense that it reflects a community's values rather than some norm that the authorities may choose to impose willy-nilly. For example, while the Nazis marked the Jews with a yellow star to shame them, the same symbol is now worn proudly in Israel. Same for the pink triangle worn by homosexuals.

Almost Godwin but the point is taken that public adopting of a mark of derision transforms it into a form of cohesive unity and pride. It's a toss-up, Dan Savage used to call on his readers to start any letter to him with "Hey Fag" to diffuse the negative connotations associated with him but there was a huge debate over this particular technique used.

Is cyber-shaming par for the course then?

No, I find something disconcerting about it.

In a sense, shaming is an attempt to coerce conformity. Notice that to make the claim that shaming can be morally reforming requires those who dispense it to do so in the spirit of a parent punishing a child. It also requires the perp to repent and make amends.

But getting offenders to repent sounds like a cleric's job. It may also be how punishment functions in the intimate setting of one's family. If that is the case, we should not be shaming our fellow citizens. After all, who appointed us to guide their moral development?

The "perp"? What the hell? It's one of those times where you really wonder whether he keeps any distinctions straight or it's just one huge mess to him.

Well first off, could we please draw a distinction between criminal law (perp), Positive Morality (the morality, values, norms and mores of a paritcular institution or society) and Critical Morality (think of it as morality with a big M i.e. the values we use to critique positive morality) and a distinction between secularism and theocracy.

Positive Morality (much less Critical morality) is not the sole purview of religion. Society inevitably exerts certain forms of positive morality. Here all these people are doing to to highlight (without criminal sanction mind you) examples of flouting of societal norms.

It's remarkably strange to see Dr. Ho write, "who appointed us to guide their moral development?" considering his rather paternalistic view of the State (societal rights over human rights). Perhaps he believes that only the State ought to have the ability to lay out moral rules, but this runs inconsistently with his disavowal in the previous block quote of the democratic pressure to rein in those who do not conform to societal norms.

Anyway, for the whole thing to work, the offender must first care about what others think of him. The broader and deeper one's communal attachments, and the wider similar views about morality are held, the greater will be one's shame if shown up.

Thus while shaming sanctions are widely and effectively employed in homogeneous Japan, the diversity in Singapore means that their efficacy may be less than obvious.

I think our communities do not have the Japanese level of interdependence or strong norm cohesion, so shaming would be largely retributive - an eye for an eye - in effect.

A better argument but a very strange cultural relativistic one. Considering the uproar which he claims occur, it would be reasonable to say that we believe that people ought to be giving up their seats to obviously pregnant women and that on the whole we frown upon faking sleep to get around it.

And it's also a bit of a non-sequitor because we can draw upon a broader claim that there are certain values, norms and rules that can get a consensus even amongst diverse cultures. And even if we could not, respect for another's culture must end in a line somewhere e.g. the Picairn Island incident and the whole notion of honour killing. At his point, I can't think of any culture on where public transport there isn't a sense that we ought to be giving up our seats to those who need it more than us.

But let's just say, for the sake of argument, that shaming sanctions do turn out to be very effective. This may cause the shunned offenders to form a deviant sub-community where people are numb to shaming: After all, people can adapt quickly to the emotion.

Some economists have even modelled shaming penalties and found that the more people are shamed, the less effective such shaming penalties become. Also, the stigma attached to such penalties decreases as more people are subjected to them.

Maybe, I really wouldn't know about it. The extent of my knowledge is that shaming is much more effective than a monetary penalty system, see Steve Levitt's Freakonomics.

But considering the failure of status quo, we should be doing something about it. And furthermore his argument seems to be premised that too much shaming is a problem i.e. it's not a problem inherent in the policy but one which requires that the policy mechanism be tweaked.

In The Scarlet Letter, Nathaniel Hawthorne's classic about 17th-century Boston, Hester Prynne, who bears an illegitimate child, is forced to wear a scarlet 'A' on her chest. Embracing the contumelies heaped upon her, she even embroiders the scarlet letter herself. And with Pearl, her daughter, she establishes a defiant mini-community on the margins of the town that shamed them.

Likewise, some criminals develop new 'families' made up of fellow criminals who share a perverse pride in their immorality. When this happens, shame no longer deters bad behaviour.

Of course, in reality, there are few completely 'shameless' people, but the risk that deviant sub-communities may form is one instance of a more generic problem: How to achieve the optimum amount of deterrence or retribution? How can we know if the amount of suffering we inflict is proportional to the perp's blameworthiness? Moreover, shame can spill over to the non-guilty family members and close friends of the person shamed.

That's seriously stretching. And brought to its logical conclusion we ought not to shame anyone for any reason whatsoever.

That might well work because I tend to believe that reason is much more effective than shame and in fact reason can counteract shame e.g. if through Reason I establish that my actions were not contrary to it and therefore is no stain on my conscience. But nevertheless, shame appears to a integral part of any culture for wrongdoing and I think that it can be harnessed for good if it is not shaming for shaming's sake but there is also good reason to explain why that particular action is wrong in that regard.

Here is another problem: Shaming invokes the crowd's help, so it may quickly become a form of lynch justice. Publishing the names of sex offenders to shame them, as in some United States jurisdictions, has led to instances of rioting. Even if this does not happen, shaming leaves too much power in the hands of a fickle public.

Alright. Fair enough, I buy the point about Megan's Law (publication of sex offenders details etc.) and there was that ludicrious case of a paediatrician who nearly got lynched because the stupid mob mistaken though it mean pedophile. As it was her property got destroyed.

But the most basic problem with this assertion is that it is a massive non-sequitor. I mean to go from shaming to lynch mob justice is the worst sort of slippery slope argument I've seen in sometime. It's one thing to say that our baser instincts to protect our youth can manifest itself in lynch mob justice. But over spitting in the streets or not giving up a seat? This begins to feel like a descent into Alice's rabbithole

Then again, shaming is too easy a task to do, so private enforcers may use it indiscriminately while alleged offenders could have little opportunity to defend themselves. Eyewitness accounts can be faulty and even video captures could be misinterpreted since the context may not be obvious.

Not a new problem, we already have PIs doing it for unfaithful spouses. And again, it's a problem with the policy mechanism rather than anything intrinsically wrong with policy justification itself. Would it become a big problem? Maybe and if that happens, we shut it down.

While the shamed may suffer disproportionately, those who do the shaming might not themselves be left unscathed either. In many respects it is like any practice that 'in' groups use to make 'out' groups feel inferior, unwanted and rejected - as any teenager can tell you.

I am not saying that all instances of shaming are irrevocably bad.

*Giggle snort* ye gods, it feels like a bad secondary school essay. In and out groups are an intrinsic part of any society. Outside of criminal laws (the most obvious example of in and out groups) society also creates norms which are essentially just part of the social contract. And they are not stagnant either. Some may be good, and some others bad, stupid, ridiculous, foolish and just plain wrong, but society and its norms are not stagnant.

But while it may be a good thing for one to feel guilty and ashamed when one does something wrong, eliciting shame in another person is quite different. The former reflects a conflict between the kind of person I am and whom I had hoped I was or want to be. But the latter - condemning a wrongdoer in the guise of shaming him - involves the desire to see him squirm or suffer: Its goal really is to degrade and dehumanise someone - publicly.

Degrade and dehumanize? Alright, seriously, what was the editor doing when reading through this article? This runs almost contradictory to his premise that the goal of shaming is to ensure conformity. Conformity i.e. a desire to bring someone back into the fold i.e. rehabilitation (of a sort) is based on a desire to bring back someone into the fold of "civilized society". So unless the society is degrading and dehumanizing e.g. totalitarian and theocratic states, this argument simply holds no water whatsoever.

While shaming others publicly may seem impartial - we like to believe we are doing so on the basis of some higher moral principle - what it actually permits is for us to feel justified in expressing raw anger and moral superiority, negative emotions that are usually nicely kept under wraps.

Thus shaming is like very public gossip, whose shock value is what entertains. Its shock value, in turn, comes from the fact that it allows our strongest negative emotions such as hate and vindictiveness to be ventilated. This is why shaming others not only coarsens our own sensitivity to the dignity of others but also fosters the wrong dispositions in those of us who dole it out.

Shaming: It is undignified. Let's not do it.

What?! Can anyone parse this for me? It's just reads like a lot of handwaving and really brings to mind that "it's not even wrong". All I see is a whole bunch of non-sequitor assertions ("Thus shaming is like very public gossip, whose shock value is what entertains") or that it "comes form the fact that it allows our strongest negative emotions such as hate and vindictiveness to be ventilated". These are not arguments, it's rhetoric!

Well, putting all those aside, just one last final point about what I believe is the difference between these and CCTV. I believe the line is very fine and for now (until we descend into the dystopia of Dr. Ho's totalitarian state where citizens are an extension of state secret police apparatus) there are the following two distinctions.
1. Power. I have an innate distrust for any concentration of power in the believe borne out by history that Power tends to Corrupts, and Absolute Power tends to Corrupt Absolutely. CCTV may have very benign intentions are first, but the temptation to use those captured footage in a bid to embarrass political opponents or simply to keep tab on the state's "subjects" is a very real and present danger especially when there isn't transparency.

In contrast, individual citizens occasionally shooting what they feel as unsocietal behavior is nowhere near the threat to privacy that the state through its and resources can bring to bear on this issue.

2. Transparency. Does anyone know what's on those tapes, who has access to it etc.?

3. The law. The state can always change the law to suit its purposes (whether benign or malign) subject to constitutional restrictions and judicial review. The individual citizen is always constrained by the law. And I submit that there is a notion of "reasonable expectation of privacy" which can be used against someone who infringes upon your privacy. The most immediate and obvious example would be those upskirting or spying on changing rooms.

It's not as comprehensive or cohesive as I would have liked it but that's pretty much all the time I have so....

Peace

Addendum: CL points out that it also involved a video of a couple making out at the back of the bus and the discussion of the justification of making the video. And it's true that I do not explicitly state the justification for why I think that the video making was not wrong.

1. It's not legally wrong. There is no right of privacy in Singapore so your likeness can be used subject to copyright. The best that can be said is the "reasonable expectation of privacy" which I point out above is simply not present in these two cases.

2. It's not morally wrong. While a general distinction should be made between law and morality, in this case, I really don't see a moral claim for not publishing the video in light of the fact that given it was a very public place and that our culture (legal or otherwise) does not impute this notion of privacy in public places, there really cannot be any sustaining of a reliance claim on that of privacy.

Public Law Assignment 2006

This essay cost me an A in Constitutional Law but I quite like it and it saves me from having to think of something to blog about. The citations have been omitted but the most important articles have been put in the essay itself.

If nothing else, this acts as a decent primer on Constitutional Developments since Independence. So enjoy.

Constitutional Amendments since 1966: Whither withered effects on Constitutionalism, Limited Government and Representative Democracy


I. INTRODUCTION


In the intervening period between the original Wee Chong Jin Constitutional Commission ("Commission") with its subsequent report ("report") and now, Singapore has come a very long way particularly with regards to its economic growth as well as subsequent social, political and constitutional developments.

The terms of reference of the Commission reflect what was felt to be the urgent problems that Singapore faced in the latter half of the 1960s. But despite the differing socio-economic-political climate, the assumptions and solutions advocated by the report have an as strong a force today, in its advocacy of a non-racial approach with a strong emphasis on protection of the individual's fundamental liberties as the best way to preserve multi-racialism and also formal institutional checks on the government.

This paper will be looking at Constitutionalism from the viewpoint of constitutional supremacy and the type of constitution that the Constitution of the Republic of Singapore (“Constitution”) purports to be and its reality. In the area of limited government, this paper will focus on the mechanisms of constitutionalism that limit governmental power e.g. rule of law, separation of powers, institutional and political checks and balances.



II. CONSTITUTIONALISM: SUPREME OR SIMPLY THE SUPREMES?


The issue of constitutionalism revolves around the notion of constitutional supremacy. Article 4 of the Constitution states clearly its supremacy. And any law that is inconsistent with it, is to the extent to which it is inconsistent, void.

So the issue then becomes how easily is the Constitution amended and how often it is amended. There have been 2 major constitutional amendments in this respect, firstly, the restoration of the super majority of 2/3 amongst parliamentarians to amend any aspect of the constitution itself, and the subsequent additions of articles 5A and 5(2A). The first has the effect of making our Constitution a controlled one i.e. it requires something more than a bare majority to amend. That was a positive development for it clearly delineates how the Constitution is a superior law to ordinary legislation i.e. requiring more than a bare majority to amend. The second set of amendments would force any amendments to the stipulated constitutional articles, to also be subject to a 2/3-referendum passage. This strikes an apparent balance between flexibility and rigidity of the Constitution that the Commission captured well when they expressed the opinion that:

We are aware of the adage that a Constitution that will not bend will sooner or later be broken. We are also aware that a Constitution that is too flexible may well turn out to be worse than having no Constitution at all.

However, it must be noted that not only are the entrenching provisions not in force, but they are subject to the discretion of the President, whether to require a referendum. Additionally, amongst all the branches of government, the judiciary is not amongst those entrenched under the provisions. This has disturbing implications as to its role as a check and balance on government. Even so, since this is now a matter of when they would come in force rather than whether they ever will, it should be acknowledged as a positive development to Constitutionalism and applauded.

While the Constitution may be controlled, it is very flexible. The near absolute monopoly the People’s Action Party (PAP) has in parliament, together with its use of the party whip, ensures that any Constitutional amendment would automatically be passed. Furthermore, the Constitution's remarkably flexible can be observed through the great number of amendments made since our independence, in particular the ease in which the EP scheme was passed. Despite being a major amendment to the Westminster system we operated on, there was a refusal to allow submission of the scheme to a referendum. But that the government chooses to amend the Constitution does go towards showing the acknowledgment that it is legally supreme.



III. LIMITED GOVERNMENT: THE LIMIT ON LIMITS


Any study of “limited government” will need to examine how governmental power is theoretically limited with its concurrent reality. From the above analysis on Constitutionalism, it is clear that the Constitution is at best a weak restrain on power. For a number of reasons examined below, the dominance of the party is such that recourse to the ballot box insofar as it provides for an alternative government (and thus a removal of a bad government) is currently not serviceable as an external political check.

Thus we have to turn to internal political checks and balances with the most significant Constitutional amendment to this area being the introduction of the Elected President (EP) scheme in 1990. While the scheme might have been originally promising, subsequent developments have created a relatively much diminished institution.

This development’s significant is its furthering of the doctrine of the separation of powers. Being a Westminster System, Singapore does not have a 'pure' separation of powers. Instead we have a fusion of personnel because the cabinet is drawn from parliament. With the introduction of the EP, who may not be a member of any political party, we now (ostensibly) have a formal check and balance against the Legislature/Executive.

While the pre-EP's powers were almost exclusively ceremonial, in contrast, the EP's role is by far more custodial and was envisaged to be a check on a free-spending, rash and irresponsible government out to drain the nation's hard earned reserves through populist measures. In addition, he too was to be the safeguard of our fundamental liberties, protect the integrity of the civil service, and be a force of anti-corruption.

However, subsequent constitutional amendments and clarifications have diminished his powers. The most significant is probably the introduction of article 151A, which ousters the President's ability to disapprove of any defence or security measure at his discretion. Furthermore, the determination of what constitutes a defence or security measure resides solely in the purview of the executive thereby diminishing the President's ability to be a financial guardian in this respect. In addition, the greater fear would be that a fiscally irresponsible government, which the EP is meant to check, would be able to use this article as a loophole.

Similarly, articles 22B(9) and 22D(9) curtails the EP by removing his oversight of the transfer of reserves and placing that in the hands of the Executive (minister) or political appointees (statutory board chairperson, CEO and various directors). Furthermore, it appears that the power of the EP to act as a restraint on cabinet’s power would tend to be construed narrowly, as was the case of article 144. And while this was not a constitutional amendment per se, it lends credence to the general notion that power ultimately resides in the Executive/Legislature and greatly circumscribes the concept of limited government.

It would have been a positive development if the White Paper on past reserves, been instituted into the Constitution. However, it remains a convention, which though ‘binding’ on future governments and EPs, has an “easy escape clause” in that any party simply needs to notify the other party that it does not wish to abide by the principles enunciated.

But where the EP has the most potential to act as a check on the government is to be found in articles 5 and 5(2A). However, this is only a potential power as these articles are still not in force after over a decade and a half. Furthermore, the amendment of art 22H, which was referred to the Constitutional Tribunal and achieved, now establishes as long as article 5(2A) is not in force, the President only has the power to withhold his assent to (non-constitutional) bills that would circumvent or curtail his discretionary power. It is recommended that these articles be instituted to give the EP his full powers and to strengthen Constitutionalism and Limited Government.

Turning to non-political checks and balances, we observe through the Parliamentary Debates on the rule of law (Lex Rex), that there are two competing (though not mutually exclusive) concept i.e. Natural Justice i.e. procedural fairness and Substantive Justice. Closely correlated with its capability to restraint government is the notion of judicial review and subsequently that of an independent judiciary. For the judiciary must be able to examine and strike down laws that are inconsistent with the Constitution and hence void.

It is in this context that a focus on our fundamental liberties serves as a bulwark against an arbitrary and autocratic government whether it exerts a tyranny of the majority or of a minority. An independent judiciary capable and willing not only to examine the Executive's decision but to also act as the guardian of our fundamental liberties, best serves such a system.

Prior to 1989, the judiciary had been willing and able to take a robust interventionist stance i.e. taking an objective test to and looking behind the decisions of the executive as part of judicial review. Wee Chong Jin CJ said: "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power."

This was subsequently overturned in 1989 with an amendment to "restore the law on judicial review" i.e. back to the subjective test. At the same time, appeals to the Privy Council were limited i.e. abolished "in respect of judicial review of decisions under the ISA, of interpretation of the ISA and interpretation of any provisions in the Constitution relating to subversion and emergency powers contained in Part XII of the Constitution." The result is that at least in matters of national security pursuant to article 149, there is really no limit to governmental power or discretion beyond that of the ballot box.

And similarly, while it is heartening and gratifying that the courts have asserted the right of any individual qua citizen to bring a suit alleging a legislation to be inconsistent with the Constitution, nevertheless, the approach adopted has been more akin to a "bathroom scales" than a "balancing" one. Thus, as long as any of our fundamental liberties clashes with national security, it is axiomatic that national security will prevail absolutely.

Such approaches see Parliament as the principal guardian of our fundamental liberties. However, this does not derogate from the necessity of having the recommended formal institutional checks and balances on government.



IV. REPRESENTATIVE DEMOCRACY: WHO REPRESENTS WHOM FOR WHAT?


Representative Democracy refers to “a limited and indirect form of democracy based upon the selection (usually by election) of those who will rule on behalf of the people”. The practice in Singapore is that of parliamentary democracy where the emphasis is that on deliberation through an adversarial ‘loyal opposition’ which is capable of forming an alternative government i.e. political pluralism and plurality of views.

A. G(reat) R(acial) C(ommitment)s?

In general, it can be said that the constitutional amendments made to this area have had a positive effect in the short run but a detrimental in the long term, based upon a cost-benefit analysis (CBA). Firstly, the GRC system, both in its original intent as well as the subsequent enlargements in 1994 and 1996, have had the effect of undermining the notion of one person one vote. As a result, people are selecting on the basis of teams, which prima facie limits the choice of the electorate to “cherry-pick” individual candidates. Furthermore, there is no necessity to have by-elections in the event one of the team members is unable to execute his duty, as an MP as was the case in 1999, where the reason given by then PM Goh was the need to focus on economic recovery.

The GRC scheme also works against parliamentary democracy by effectively eliminating opposition parties as a possible alternative government. This has as much to do with the strength and track-record of the PAP as it does the weakness of the opposition, which is simply not capable of fielding enough viable candidates to contest a true general election while adopting the election tactic of simply allowing the PAP to form the government and offer themselves up as alternative voices in government. Additionally, by prolonging the period the opposition is not in government, this hurts their credibility as a viable opposition.

These detrimental effects are partially offset by the fact that the GRC system was originally conceived and continues to ensure minority (non-Chinese) representation in parliament in a bid to maintain the necessary multi-racialism. This thereby ensures true popular representation in parliament thereby bolstering parliamentary democracy. Unfortunately, the subsequent enlargements of the GRCs to 4 and then 6 member teams in 1991 and 1996 respectively, have reduced the total number of guaranteed minority parliamentarians.

One may well applaud the intent, however, it does presume and perpetuate a very stratified notion of race and race relations, with possible detrimental effects in the long run. The is so given that the “non-racial” approach advocated by the original commission, the reasons for which still has force today, coupled with over half a century's worth of Religious Harmony Days and constant “National Education” to drum the importance of harmony. But if one accepts the premise of the necessity of minorities representing minority views, then in the modern context, the most woefully underrepresented segment of society has to be Women. If so, the GRC system ought to be adapted to ensure female political participation.

B. The non-elected, not-quite-elected, and not-so-elected

Any evaluation of the Non-Constituent Member of Parliament (NCMP), and Nominated Member of Parliament (NMP) scheme, must be done via a CBA taking into account Singapore's context. So while on the one hand, such members, not being elected or having a popular mandate should be considered to be undermining Representative Democracy, at the same time, these MPs may well be representing the protest voters or the voters who did not vote for the PAP in the elections.

But the great uneasiness over these schemes can observed via the NMP scheme being subject to a "sunset clause", while the number of NCMPs are limited constitutionally. Particularly so when seen in light of the PAP’s approval of NMPs apolitical nature and presenting of non-partisan 'opposition' views in Parliament with their subsequent expansion in 1997 and 2001. There is nevertheless much force in the critiques levered against the concept of the NMP scheme, ranging as far back as the Randel Commission, and to the parliamentary debates.

However, these schemes were conceived that they would be able to provide an alternative viewpoint in parliament. Thus, while acknowledging the so-called ‘Opposition Gap’ i.e. the lack of opposition members providing opposing viewpoints in Parliament and the necessity of improving the quality of debate, nevertheless a question is raised as to whether this erodes representative or parliamentary democracy in the long run by “co-opting” the best and removing the impetus for an opposition/alternative government.

There is also the further downside of non-elected bodies sharing executive/legislative powers. For example, the provisions for the EP ensures that he has to share power not only with the cabinet but also non-elected bodies like the Council of Presidential Advisors, and Presidential Elections Committee, thereby entrenching them in the Constitution and undermining the concept of representative democracy in our parliamentary system. Similar to this is the Presidential Council for Minority Rights, which bears some similarities to the Council of State envisioned in the report in protecting minority rights. Unfortunately for parliamentary democracy, not only is this a far more limited version of the council originally proposed, but even on the protection of minorities front, it has yet to raise any adverse reports despite the prima facie "differentiating measure" inherent in many of the above-mentioned constitutional amendments.



V. CONCLUSION


The constitutional amendments have constituted a mixed blessing for the three specific objectives evaluated. However, even those can be said on balance to further these objectives, only achieve this in the short run will questionable to detrimental effects in the long term. We would do well to adopt the general advice of the Commission to focus on protecting the individual's fundamental liberties through strengthened and independent institutional checks and balances.

Local incoherent homophobe

Just read it and the comments. At last he's thrown off the pretense that he's not a homophobe and gone into full blown rightwing, bigoted lying that homosexuality promotes pedophilia.

Read the post and in particular the comments. His arguments have been shredded repeatedly, but like a boxing trainer, he just keeps coming back by ignoring the points asserting he's right and generally going "la-la-la I can't hear you".

As CL says, his argument is more against casual sex than homosexuality per se. Or as I put it, his arguments (and I use the term loosely) apply equally against heterosexuals.

So I suggested that he change the name of his blog to "Why Be Sexual?".

Well, let's see what he comes up with next.

Update: Well boo hoo. For the third time, he has called me stupid and refused to engage in debate.

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.

Peace.