The ethics of debate: Attack the policy, not the person

July 26, 2009

By Janet Keeping

The dispute over whether human rights commissions should have legal authority to punish offensive or hateful speech rages on. But an important aspect of this and other public debates is too often overlooked: even if we had complete freedom of expression, it wouldn’t follow that “anything goes.” It’s not ethically OK to be obnoxious.

Our legal right to speak is one thing, but how we exercise that right is quite another. Even if you are legally entitled to be offensive, you are still doing a bad thing – acting unethically – if you deliberately set out to harm people by your words or if you just don’t care about the “collateral damage” your offensiveness causes.

Even in vigorous debate over public policy issues there are rules for verbal combat; there is an ethics of debate.

Rule number one: it is nearly always wrong to personally attack those who hold opinions different from yours. When done deliberately, attacking your opponents instead of their views is dishonest because it purports to be about one thing – the public policy in question – but is actually about something else, the destruction of your opponents’ credibility or integrity. It can also be self-defeating. When seen for what it is – basically, character assassination – it can undermine whatever validity there is in your policy position.

Regardless, the strategy is often employed, most notoriously at present, by Ezra Levant, lawyer, writer and blogger on human rights commission issues, in his campaign against Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission. Here is a small sampling of the things Levant has written recently about her: “Jennifer Lynch is a damned liar,” “an execrable woman” and a “pathological liar.” “What an odious woman. When she accosted me  . . ., I didn’t recognize her . . . She is much more haggard and old than her ancient publicity picture.”

This kind of personal attack, while not illegal unless false and thus defamatory (which some of this stuff might be), violates the ethics of debate because it targets a person, not the policy under scrutiny – whether the Canadian Human Rights Commission should have the power to regulate speech. And while Levant’s comments may be, taken cumulatively, intimidating, they have literally nothing to do with the law reform issue at hand.

It’s a complicated matter to spell out some of the other ethics of debate. While we have principles – for example, don’t cause avoidable harm – there is no definitive set of rules, nor could there be.

But, as the rule against personal attacks shows, some standards are pretty clear. Here’s another rule: it’s not always possible to say what needs to be said without causing offense.

One of my favourite American civil liberties cases, Cohen v. State of California, concerns a man ejected from a courtroom for wearing a “Fuck the draft” T-shirt. This occurred while the US was still waging war in Vietnam. It was argued that, in order to claim freedom of expression, Cohen should have expressed himself more politely – “Resist the Draft,” perhaps. The Supreme Court disagreed and applied the US constitution to protect “the emotive function” of speech which “may often be the more important element of the overall message sought to be communicated.”

In both ethics and law we have to cut people some slack for the spontaneity of authentic self-expression. But from the ethical point of view, in public discourse at least, we should try to moderate our language in order to avoid giving unnecessary offense.

Whether we are debating ethically turns for the most part on our intentions. Are we trying to get our point across in a way that is as productive and simultaneously harmless as possible? This is the ethical approach. Or are we trying to win by any means possible, including character assassination and the bullying of opponents into submission?

Those, such as Levant, who argue that human rights commissions should not have authority to regulate speech are, in my view, entirely right. But how some people advance that view is quite wrong. Those who attack their opponents personally, instead of arguing against their policy positions, are using freedom of speech in an unethical way. And it is no answer to claim that some human rights commission officials carry out their duties in an oppressive, even harassing, manner. If true, this should be remedied, but not through reverse bullying: just as our mothers told us, two wrongs really don’t make a right.

Janet Keeping is a lawyer and president of the Sheldon Chumir Foundation for Ethics in Leadership.

Published in the Edmonton Journal, Amherst Daily News, Truro Daily News, New Glasgow Evening News, July 29, Saskatoon StarPhoenix, July 30, Moncton Times and Transcript, Aug. 4, Yorkton News Review, Aug. 6, Vancouver Province, Aug. 11, Prince Rupert Daily News, Aug 13, Slave Lake Lakeside Leader, Aug. 27, 2009.

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