Uncompromising Positions (1997)
Source: 1997. Lorraine Johnson (Ed.), Suggestive Poses: Artists and Critics Respond to Censorship, pp. 137-149. Toronto: Toronto Photographers Workshop and The Riverbank Press.
Uncompromising Positions: Anti-censorship, Anti-racism, and the Visual Arts by Richard Fung
"For some, artistic freedom appears to be alive and well in Canada; these writers, however, pay not the slightest heed to the fact that the wider context includes many who, because of racism, cannot fully exercise that artistic freedom. In Canada, that wider context is, in fact, very narrowly drawn around the artistic freedom of white writers."
-M. Nourbese Philip, This Magazine
For many artists of colour, censorship is at best a peripheral issue, a luxury. At worst, anti-racism and anti-censorship are imagined to be in competition with one another. Over the last fifteen years, I have worked with other artists of colour on anti-racist and equity initiatives. Whenever I have involved myself with issues of artistic censorship, however, I have been able to count the number of non-white faces on one hand. The reasons behind this absence are seldom elaborated upon, but one need only think of the defence of genetic determinist Philippe Rushton, or the image of Holocaust-denier Ernst Zundel with "Freedom of Speech" emblazoned on his hard-hat, and it starts to become clearer why politically conscious people of colour may be reluctant to jump on any civil-libertarian bandwagon. Add to this the fact that when artists of colour address the effects of systemic racism and white privilege they are often themselves accused of censorship, and a degree of mistrust seems only natural.
The politics can be reduced to a simple equation: artists want freedom of expression; people of colour and ethnic minorities demand freedom from oppressive stereotypes and expressions of hatred. For the most part, anti-racist and anti-censorship activists stay out of each other's way: anti-racists don't normally comment on porn busts, gay and lesbian book seizures, or instances of artistic censorship; those who work on anti-censorship issues in the visual arts don't jump to criticize restrictions on the Heritage Front or the KKK. But for someone like myself, a person of colour and a cultural producer who sometimes works with sexual imagery (and queer representation at that), this segregation of anti-racist and anti-censorship politics, although expedient, seems intellectually shortsighted and strategically risky. As anti-hate-speech advocates team up with pro-censorship, anti-porn feminists, and civil libertarians defend the racist's right to speak, it becomes even more crucial to address these movements' central assumptions about representation, pedagogy, and the state.
While this article focuses on the campaigns advocating or opposing state censorship, the circulation of ideas and images in countries such as Canada and the United States is far more dependent on less obvious systemic factors, such as (the often narrow, often Eurocentric) notions of "innovation" or "excellence" when it comes to arts funding and curating, or marketability and audience in mass culture venues. So while it is rare for a piece of art to be banned by the government, it is normal that a film or video be refused distribution or airing because its audience is too "specific," it is not "objective," or it is in poor taste. This was driven home to me when I was doing research for a videotape about racism and policing, and various broadcasters refused to let me even see, much less purchase, television footage related to my subject's false arrest. The grounds they used included not selling material to "advocacy projects," not selling to "independent producers," and only allowing the purchase of "happy" footage, "such as if you were at the CNE" (the annual Canadian National Exhibition). Keep in mind that media rely on police tips for their stories and you get an important part of the picture.
The regulation of expression is accomplished by the everyday practices of thousands of decision-makers, from petty to powerful, simply doing their jobs. This includes the self-censor-ship of cultural producers themselves. It is ironic, therefore, that the relatively few incidents of state intervention in the capitalist liberal democracies are used to convey an image of a "free" world. This freedom then becomes a point of distinction from the backward or "despotic" countries, and is often cited when a justification for imperialist intervention is needed, or, as in the case of the hysterically squashed New International Information Order, to delegitimize Third World challenges to the hegemony of the Western media. As Dionne Brand and Krisantha Sri Bhaggiyadatta wrote in A Space's 1985 anthology Issues of Censorship, in this global context, narrowly defined anti-censorship campaigns may seem like "flaunting one's genitals against
the military-industrial complex."
In tracing the implications of what is called free speech, we find that the concept echoes in the mass silencing of four fifths of the world, just as the welfare state of the ACCs [Advanced Capitalist Countries] thrive on the super exploitation of or illfare of the rest of the world…Free Speech becomes a tool in legitimizing that exploitation, as a measure of the ACCs advertized freedom against the backwardness of the "third" world or the totalitarianism of the "communist bloc."
The point is not that the citizens of countries such as Canada don't enjoy a relatively high ability to express themselves without fear (or that we shouldn't fight to safeguard those rights), but that this advertised political and artistic freedom is not as absolute as it's made out to be: transgressive images and ideas are tolerated as long as they remain on the margins of social consciousness. With the regulation of voice accomplished through the building of a social consensus, state censorship only represents a failure in an otherwise effective system of control.
Way back, before some artists became "of colour," we used to say that censorship wasn't an issue for us non-whites because we didn't have resources to make work in the first place; there wasn't anything to censor. If that ever served as a legitimate justification, it no longer does. Although access and equity should be on the agenda of anyone who claims to have an interest in artistic expression (extending it, not simply preserving it for those who already enjoy the privilege), it is also true that non-white artists do make work and we do get censored, especially when that work deals with sexuality. (Political censorship is normally more systemic and taken care of before this stage.) Artists of colour have been at the centre of some of the biggest censorship controversies in North America. Think of Vancouver artist Paul Wong whose show Confused: Sexual Views was cancelled by the Vancouver Art Gallery in 1984, or the late San Francisco-based filmmaker Marlon Riggs, whose Tongues Untied was maligned by Senator Jesse Helms and was refused carriage by several PBS stations. More recently, in 1996, Cheryl Dunye's feature comedy, The Watermelon Woman, about the search for a black lesbian cinema icon, was attacked on the floor of the U.S. House of Representatives by Republican Peter Hoekstra (Michigan), who offered an amendment to decrease National Endowment for the Arts funding by $31,500, the amount the organization contributed to Dunye's film. In 1988, there was a campaign to censor a number of tapes from the inaugural video exhibition at the National Gallery in Ottawa. Susan Ditta, the show's curator, and Dr. Shirley Thomson, the gallery's director, stood firm and the storm blew over. One of those tapes, Chinese Characters, a critique of gay porn from an Asian perspective, was mine.
Much of this offending work attempts to reframe sexual representation from a non-white perspective and to dismantle the distorted sexual constructions of racist and colonial discourse. But while the spectacle of non-white sexual subjectivity, especially when coupled with the unapologetic display of gay desire, may have made these pieces more obscene in the eyes of their critics, discussion of racial difference was noticeably absent from the public campaigns against the works-though Susan Ditta received, on my behalf, private hate correspondence that combined homophobia with race hatred. For the pro-censorship forces to address the racial specificity of the work would have complicated and perhaps derailed their lines of attack, possibly precipitating a fracture along colour lines; not to address such issues would keep conservative clements within communities of colour on side.
These communities are not monolithic. If one thinks of the African diaspora in North America, for example, there are indeed conservatives and religious puritans, but there is also a whole rap youth culture, vilified precisely for its sexual expressiveness and censored for it. This fact is not always remembered in the confrontation between race and anti-censorship politics, however. In the art magazine MIX, for example, editor Margaret Christakos reports on the process through which an essay by Eli Langer, the Toronto-based artist whose paintings and drawings were put on trial under the child pornography law, was deemed unpublishable. Christakos writes about the censorship-induced obscenity chill that makes cultural producers cautious and self-censoring. But in this case, race was also factored into the magazine's decision-making process:
I find it important to be mindful of how women of colour involved with the magazine offered a different context altogether in which the Langer article raised issues of white male privilege…In this case, supporting going public with material that might have incurred conservative legal and social outcry might have endangered their grassroots broad-based politics of change that ranked anti-censorship around this particular type of imagery a luxury.
One makes choices about political priorities. Involvement in a costly censorship campaign can take resources away from issues deemed more urgent. This can produce resentment especially if one has reservations about the offending material or the motives of its producer. As this was the premiere issue of the magazine, the inclusion of Langer's controversial piece could have helped to define the publication's readership: a strong anti-censorship gesture could have demonstrated a vigorous, uncompromising editorial stance; or, it could have limited a grassroots audience. While I am sympathetic to the fact of these dilemmas, I am leery about the construction of community homogeneity that bolsters the anti-racism versus anti-censorship dualism described in Christakos' account. MIX is not a community newspaper; its roots are in the progressive artist-run movement. Given the magazine's format, writing style, and content (even without Langer's article), its readers-of whatever colour or ethnic background-would be, relative to most of society, politically and culturally sophisticated. In such a context, one could expect to be confronted with difficult, controversial questions of representation. But in any case, isn't the role of progressives to challenge conservatism in the communities? Especially in these times, frank talk about sexism, homophobia, and sex needs to flourish, not be dampened in the name of cultural sensitivity. Even if the artist is of a relatively privileged background, there is a need for building an analysis of the links between the state repression of non-white political voices and of artistic censorship: what might the similarities and differences be between Eli Langer's paintings and the rap song "Cop Killer," for example? How one raises these issues productively is another matter, of course, and this is where the dilemmas and priorities come in—censorship cases are almost never straightforward, as work that supposedly crosses legal boundaries is often transgressive from the perspective of other criteria as well.
In the eighties, there were strong attempts to produce a progressive anti-censorship coalition that attended to anti-racist concerns—A Space's anthology Issues of Censorship was one such effort. Visible and active censorship bureaus facilitated conceptual links between censorship of the arts and other forms of state repression. Recent anti-censorship organizing, however, has generally failed at effectively making connections between different forms of censorship and across "high" and "low" cultural forms-the films, videotapes, visual art, and literature that have served as foci for anti-censor-ship activism usually being of a high art variety. In the visual arts, this is at least in part because of the kind of work that has been censored, but there has also been a long struggle over the question of elitism: is it opportunistic to invoke the defence of artistic merit, which is available only to certain types of censored material, or for galleries and festivals to advocate (or accept) exemption from submission to film and video censor review? This discussion has evident implications with regard to the cultural products of minoritized communities. In the United States, for example, the defence of rap has come almost exclusively from black scholars such as Henry Louis Gates Jr. and Tricia Rose.
In fact, there is at this point no coherent anti-censorship movement as such but, rather, overlapping circles of individuals and organizations, which may be mobilized around specific issues or according to artform. In the visual arts, the political spectrum includes civil libertarians opposed in principle to any limit on expression, no matter the content; feminists and socialists concerned about giving more power to a patriarchal and/or capitalist state; artists fearful of limits to their practice; art institutions concerned about funding; sexual minorities, especially gay men and lesbians, who are used to being scorched whenever the fires of censorship rage; and, finally, fascists and porn producers who opportunistically take up the slogans of freedom of expression as a form of self-defence. Many anti-censorship activists fit in to more than one of these categories, but only hardcore libertarians would actively work to support the full range of anti-censorship causes, from the Eli Langer trial to the Little Sister’s Customs seizures, from Red Hot Video to the Keegstra and Zundel hate-speech cases.
What is thought of as an anti-racist movement also consists of interlocking circles of interest that span a range of organizations and individuals working in different milieux, and with different orientations toward strategy and even toward the concept of race-from various racial nationalists who see contemporary racial categories as real and natural (they may simply want to overturn the configuration of power allotted the different groups-or their group), to people who, like myself, regard race as a social not a biological reality and consider the idea of racial difference as socially constructed and historically bound. Those who pursue state intervention as a way of dealing with racist speech constitute a relatively small portion of this movement; grassroots organizing tends to favour community mobilizing, popular education, and, in some instances, direct confrontation. The legal route is primarily an option for those who find themselves comfortable traversing the corridors of power and who trust their own ability to manoeuvre the state's coercive powers. (Hate-promotion charges can only be laid with the consent of the Attorney-General.) This excludes most people of colour and most people in general.
The most visible force behind hate-speech prosecutions in Canada has been the Canadian Jewish Congress. Often working in tandem with the League for Human Rights of B'nai Brith Canada. In my opinion, the zeal of especially the CJC to engage the motors of the state reflects not only the political orientation of its leaders, but also the centrality of anti-Semitism in Nazi and neo-Nazi doctrine and the particularity of anti-Semitism as a form of racism. The Jewish community is not homogeneous economically or politically. There is, nevertheless, sufficient clout within the constituencies of these organizations to facilitate confidence in the traditional wheels of power. This attitude is reinforced by the fact that, today at any rate, anti-Jewish prejudice in Canada is not acted out at the level of government—Jews are not criminalized and policed in the manner of, say, Aboriginal or African Canadians. But the CJCs readiness to enlist legal methods to combat anti-Semitism runs its risks. Not only is it costly, time consuming, slow to resolution, and unpredictable in outcome, but there can be more direct fall-out as well. For instance, the CJCs unsuccessful attempts to ban Nation of Islam leader Louis Farrakhan from Canada put a strain on the anti-racism coalition and apparently produced a divergence from the B'nai Brith, which called for dialogue. Farrakhan, who is infamous in the mainstream media for flourishes against Jews, whites, gays, and others, is, since his Million Man March, increasingly popular with established African Canadian (especially heterosexually identified, male) leaders who find his message of masculine responsibility and community self-help appealing. So when the CJC invokes the force of the law to prevent black people from hearing a man they regard as inspirational, or are simply curious about, the Congress' justification, based on a discourse of racial victimization, certainly doesn't help to convince African Canadians that hate-speech legislation is a tool that will reliably work in their favour.
Hate speech has been a relatively minor and sporadic preoccupation for organizations of people of colour, compared to those issues that are far more constitutive of the everyday experience of colour racism: policing, discrimination in access to housing, racist violence, and systemic racism in education and employment. But going against the grain of what Henry Louis Gates Jr. describes as the civil rights legacy of resisting rather than enlisting power, is a growing movement of legal scholarship in the United States known as critical race theory. Encompassing a wide, even divergent, range of legal thinkers, mostly "of colour" and mostly teaching in universities, critical race theorists are unified, according to the editors of a comprehensive anthology of their key writings, by two common interests: 'The first is to understand how a regime of white supremacy and its subordination of people of colour have been created and maintained in America, and, in particular, to examine the relationship between that social structure and professed ideals such as 'the rule of law' and 'equal protection.' The second is a desire not merely to understand the vexed bond between law and racial power but to change it."
One of the areas to which critical race theory has been applied is hate-speech legislation, and of these thinkers Richard Delgado is one of the most prominent. A University of Colorado law professor and co-drafter of the University of Wisconsin's hate-speech regulations, Delgado has sought to broaden the notion of hate speech. Working with Laura Lederer, editor of Take Back the Night: Women on Pornography, Delgado organized a conference and subsequent anthology, which designate "hate speech" and "harmful speech" as "a catch-all to refer to all forms of racist speech, hate propaganda or pornography." Given their common approach to state intervention, it is only logical that anti-hate-speech and pro-censorship anti-porn activists would eventually team up. But, for me, whatever clarity the anti-hate-speech rationale might have it loses when such a conflation is effected. What this marriage does is apply a literal reading to the metaphorical rhetoric of pornography as hate propaganda against women; this is a qualitative and, in my opinion, untenable leap. Leaving aside the discussion of whether speech constitutes an act in itself, the invitation to violence and hatred is clearly and explicitly stated in the message of racist and homophobic groups; this is the message's purpose. But despite the radical feminist claim that pornography is the theory, rape is the practice, porn's causal relationship to sexual violence remains unproven, and the case against state censorship as a response to misogyny in heterosexual pornography is eloquently argued by feminist writers and artists.
Lisa Duggan, for example, gives a four-part answer to the question of why so many feminist historians are uniformly critical of the campaigns to ban pornography. Drawing on the lesson of the "fruitless, counterproductive strategy" of the nineteenth-century women's temperance movement to ban alcohol as a means of combatting spousal abuse, Duggan identifies the first reason as a problem of displacement. During hearings into a proposed anti-pornography ordinance in New York state, for example, men confessed to sexual violence with explanations such as "pornography came into my home and made me do it." As Duggan notes, "They confessed their acts of violence, but did not hold themselves accountable. Instead, they displaced responsibility for their acts onto pornography in exactly the way that is so familiar to people who have looked closely at the temperance campaign." The second lesson is based on an analysis of the social purity movement, which worked to strengthen anti-prostitution laws at the turn of the century. This led to a coalition in which feminist concerns about the economic and sexual vulnerability of women were overrun by conservative forces interested in regulating morality. This experience, according to Duggan, is mirrored in anti-porn feminist Catharine MacKinnon's alliance with Stop-ERA and Moral Majority activists in an effort to pass the 1984 anti-porn ordinance in Indianapolis. The third reason is based on the fact that, in the application of the aforementioned anti-prostitution laws, it was primarily women, not men, who suffered. As contemporary parallels, Duggan cites the defunding of lesbian, gay, and feminist artists from the National Endowment for the Arts, fuelled by the idea of obscenity as dangerous, and the prosecution of a lesbian publication as the first post-Butler interpretation of the Canadian obscenity laws. Finally, Duggan attacks the central assumption that pornography causes misogyny and violence against women:
That argument has absolutely no basis as an historical claim because the mass avail-ability of pornography since World War II certainly cannot have caused violence and misogyny; they have existed for centuries. This argument has no merit as a cross-cultural claim because the status of women does not increase in societies that suppress sexually explicit materials-whether it is the state of Utah or Saudi Arabia.
Duggan's point is not that pornography should escape criticism, but that the critique and protest around it should follow the lines and scale as for other forms of cultural representation, such as advertising, novels, or television: "It makes as much sense to organize a group called Women Against the Novel as it does to organize Women Against Porn.”
Their fixation on sexual explicitness has always placed anti-porn activists in an objective alliance with moral rightists. Suspicion of a moralistic impetus is strengthened by their inability or unwillingness to distinguish between different genres of porn, and between gay and straight pornography. In fact, whereas the Butler decision was celebrated for its apparent shift from a concern with sexual explicitness to an assessment based on harm against women and children, the opportunistic manipulation of the judges' homophobia hints at why the terms of policing haven't shifted that much. Law professor Kathleen Mahoney, architect of the campaign to enshrine the harms-based analysis in law, describes the strategy: "'How did we do it?' she said. 'We showed them the porn—and among the seized videos were some horrifically violent and de-grading gay movies. We made the point that the abused men in these films were being treated like women—and the judges got it. Otherwise, men can't put themselves in our shoes.’”
Gay anti-porn legal scholar Christopher Kendall goes even further along this path, condemning gay porn as "hate speech" against gay men that precipitates "precisely the types of harm addressed in Butler." Implicating gay pornography in causing gay spousal abuse, he argues that "[a]lthough research thus far has relied only on heterosexual pornography, I suggest that these findings are equally applicable to gay pornography-that is, that the presentation of real people in scenarios of violence and degradation (not to mention the exploitation involved in the production of these images) can in this case, too, lead to increased violence against real people.” He concludes, “while no research has been done to determine if gay men who abuse their partners use gay pornography, there is no evidence that they do not." Even if they did, it would not indicate a causal relationship, merely a correlation. One might also find (if one set up such research parameters) that gay spousal abusers drink beer, smoke cigarettes, and watch "Married with Children"; this represents the limitations—and the dangers-of this kind of functionalist research. Yet based on such a thin foundation of conjecture, the pro-censorship anti-porn lobby is willing to build its justification for massive controls.
The analysis of race in anti-porn writing is equally shallow and opportunistic, but to different purpose. In the early nineties, I wrote an essay on the representation of Asian men in gay video porn. Film scholars Richard Dyer and Tom Waugh had each written convincingly about the specificity of gay porn with its greater mobility in viewer subject position. What struck me when I began to research how Asian men figured in the narrative and the image, however, was the consistency with which the tapes reproduced some of the most stereotypical, orientalist tropes. The tapes I looked at were constructed for the pleasure of a white viewing subject; the Asians were on show. This, I argued, held some commonality with the gendered gaze of most heterosexual porn.
But the complaint of gay Asian activists is how Asians figure in gay erotic representation, not that they figure. And I cannot stress too much how crucial it is to distinguish between the seemingly coherent regimes of representation on screen, the idiosyncratic ways that these images are consumed, and the complicated social and interpersonal relations that exist between Asian and non-Asian gay men on the ground. Christopher Kendall lists an inventory of titles and sexual activities that is meant to shock the reader with the horrible reality of gay porn. When he hyperventilates about "bondage, watersports, fisting, bootlicking, piercing" or "torture to the genitals and nipples with hot wax," I imagine the frenzied tone of his invective reflects the difficulty of trying to convince gay men that gay porn plays any role in their everyday experience of violence and oppression. But when, in his anti-porn diatribe, he lists Big Black Cocks and Oriental Guys (a glossy magazine out of Southeast Asia collected by many gay Asian men, and one of the titles ,singled out for Canada Customs seizure from Glad Day Bookshop), I can only feel used. Kendall seems totally uninterested in the complex and contradictory feelings of gay Asian men toward these representations that simultaneously eroticize and orientalize them.
Kimberlè Williams Crenshaw, another critical race theorist, expresses similar misgivings about the way black women were used in the obscenity prosecution of 2 Live Crew's Nasty As They Wanna Be. Grounded in a notion of what she refers to as the "intersectionality" of race and gender (that the construction of totalizing and mutually exclusive categories of "blacks" and "women" is useless in understanding the problems faced by African American women, for example), Crenshaw is equally critical of those who would dismiss Nasty's misogyny and defend the lyrics as simply a black in-joke, and of the selectivity of the prosecution's case, which relied heavily on racist fears and stereotypes about black male sexuality: "Whereas 2 Live Crew was performing in an adult's only club in Hollywood, Florida, Andrew Dice Clay was performing nationwide on HBO. Well known for his racist 'humour,' Clay is also comparable to 2 Live Crew in sexual explicitness and misogyny.” Crenshaw also points out that 2 Live Crew was playing in a district in which sexually explicit, misogynist material is readily for sale.
Obscenity doctrine, Crenshaw argues, does little to protect the interests of black women. Nevertheless, "black women's bodies were appropriated and deployed in the broader attack against 2 Live Crew.” Crenshaw's deconstruction of a Newsweek article by George Will demonstrates the process:
Will invokes Black women—twice—as victims of this music. But if he were really concerned with the threat to Black women, why does the Central Park jogger figure so prominently in his argument? Why not the Black woman from Brooklyn who, within weeks of the Central Park assault, was gang-raped and then thrown down an air shaft? What about the twenty-eight other women—mostly women of colour—who were raped in New York City the same week the Central Park jogger was raped? Rather than being centered in Will's display of concern, Black women appear to function as stand-ins for white women?
The problematic construction of women as helpless victims of and in pornography has long been noted by feminist critics of anti-porn discourse. But some anti-hate-speech reasoning also relies on patronizing notions of passive victims in need of protection by a benevolent state. In their essay "Minority Men, Misery, and the Marketplace of Ideas," for example, Richard Delgado and Jean Stefancic argue that "[h]istory shows that one cannot effectively 'talk back' against the dominant narrative of the day. And, with race, the reason is that we simply do not see the racism of our time as such. We see it only years later, after the paradigm has begun to shift and society has adopted a different, sometimes more enlightened, view of the group in question.” The authors further contend that when counter-narratives are put forward, they are denied credibility and dismissed as biased; people of colour and other socially maligned groups have no hope of self-expression, the authors deduce. Although they do not explicitly argue for a remedy of state censorship, their pessimistic prognosis coupled with an attack on "reductionist First Amendment marketplace analysis" accomplishes this by default:
Not only does the system of images resist changes, our political system of free expression often makes matters worse. Writers and graphic designers feel freer to use racist images because another writer is free to make an anti-racist movie.
Delgado's and Stefancic's self-serving vision that racist ideas are monolithic, all pervasive, and unshakable bears many similarities to the determinism of pro-censorship anti-porn rhetoric. But if stereotypes are so deeply ingrained, not only impossible to counteract but unrecognizable as such, who will decide what is and isn't racist, and why turn for protection to the state, the very centre of hegemonic power? In answer to the first part of the question, I suppose Delgado and Stefancic propose people like themselves. However, when laws, policing, and judiciary are permeated with systemic racism, why should minoritized communities expect that the legal arm of the state—even under the guidance of an anti-racist mandate—will act in their interest? Certainly, this has not been the case with recent, supposedly feminist-informed censorship legislation in Canada. While the new laws have done little to unsettle sexist and heterosexist hegemony, the police, customs, and judiciary have maintained their inability or unwillingness to distinguish between "harms-based" and old-fashioned moral policing. Yet again artists and sexual minorities are the victims. With the discretionary nature of hate-law enforcement, satisfaction from a progressive viewpoint is hardly guaranteed, no matter how ostensibly clear the laws.
Consider, for instance, the work of Mari J. Matsuda, one of the most complex of the critical race theorists working in the area of hate-speech legislation. Writing within the framework of First Amendment rights, Matsuda attempts to formulate a progressive position that isolates racist hate speech for legal proscription, while protecting other unpopular ideas such as communism. Matsuda identifies three criteria that would have to be satisfied to make speech legally actionable: "1. The message of racial inferiority; 2. The message is directed against a historically oppressed group; 3. The message is persecutory, hateful and degrading.”
Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereotyping that avoids persecutory language remains protected. Hateful verbal attacks upon dominant-group members by victims is permissible. These kinds of speech are offensive, but they are, in respect of first amendment principles, best subjected to the marketplace of ideas. This is not to suggest that we remain silent in the face of offensive speech of this type. Rather, the range of private remedies—including counter-speech, social approbation, boycott, and persuasion—should apply.
Under Matsuda's stringent criteria, Jim Keegstra would be liable to legal sanction but Philippe Rushton would not, although he would be subject to other forms of reprimand, including academic censure. But no matter how airtight Matsuda's formulation is on paper, it is nevertheless subject to the vagaries of an unpredictable (or, some might argue, all too predictable) state apparatus. And as Henry Louis Gates Jr. has argued, while critical race theory is correct in challenging the notion of neutral application of legal principles in American jurisprudence, "[i]ronically enough, what trips up the content-specific approach is that it can never be content-specific enough...[T]he test of membership in a 'historically oppressed' group is either too narrow (just blacks) or too broad (just about everybody)... I suspect it is a matter of time before a group of black women in Chicago are arraigned for calling a policeman a 'dumb Polak.'” Gates further points to the fact that contemporary anti-Asian prejudice and violence are fuelled by a stereotype of Asian over-achievement, not Asian inferiority (think Philippe Rushton). And, of course, using the test of Matsuda's three criteria, homophobic hate speech would not be actionable.
In Canada, although the hate-propaganda legislation has survived several constitutional challenges, charges are very rarely laid. Provincial Attorneys-General are very reluctant to give their consent for prosecution under the sections of the Criminal Code related to advocating genocide (section 318(1)) or promoting hatred (section 319(2)). The case against Ernst Zundel, for example, was initiated independently by the Canadian Holocaust Remembrance Association under the spreading false news section of the Criminal Code (section 181), because the Attorney-General felt there was too slim a chance of successful prosecution under section 319(2). At the time of writing this article, I am part of an Asian coalition that rose to combat a viciously homophobic editorial in a Toronto Chinese-language newspaper and the fall-out that it precipitated. In considering available options, legal counsel advised a libel suit (the article was accompanied by photographs of Asians from the Lesbian and Gay Pride Day parade in Toronto), because the Conservative Attorney-General was unlikely to take on the case and the Human Rights Commission would involve too lengthy a process.
Perhaps the most useful aspect of hate-speech legislation is the fact of its existence. It represents a symbolic societal stand against hatred and a symbolic inclusion of minoritized communities in the body politic. This is different from private remedies such as group libel statutes. In the case of racist hate propaganda, these laws most likely act as a deterrent against reckless racist speech, although committed Nazis and other racists seem ready to pledge their resources and their time—even in jail—to support the cause.
In North America and much of the world, we are at an historical juncture in which the corporate bourgeoisie, aided by partners in government, is attempting to dismantle the "legitimizing" aspects of the state in order to increase their capital accumulation. A progressive politics therefore includes the demand that the state fulfill its responsibilities to education, culture, health, social programs, and human rights protection. In this context, finetuning hate-speech legislation is a laudable effort. But while we may press the police or judiciary to act in cases of racism, homophobia, or violence against women, we must be careful about the degree of state control that is made legitimate in the process of these efforts. And let's not forget that these same functions—education, culture, etc.—also support the needs of corporate state hegemony; we must
fight to preserve and to change them.
From my vantage point as a person of colour, a gay man, and a cultural producer whose work has variously faced difficulties for either its political or its sexual content, an intersectional approach would indicate the necessity for both enlisting and resisting power. From my perspective, free-speech campaigns that deny the fear and violence hate propaganda can cause are as limited as anti-hate-speech or anti-porn campaigns that stifle debate or that ignore the ways criminalization is used against artists and sexual minorities or to limit social dissent. Artists and anti-censorship activists need to make a wider range of people care and understand the importance of these issues; this involves a wider conception of expressive freedom. Artists of colour need to understand that we can't get our concerns on board unless we engage with the issues.
I would like to thank Bob Gardner for references. Professor John Manwaring for information on the Canadian legal context, and Amy Gottlieb, Tim McCaskell, and Kerri Sakamoto for editorial suggestions.
Richard Fung lives in Toronto where he writes, makes video, and stuffs as many plants as he can into a very small garden. His videotapes have been screened and collected internationally; his essays on race, sexuality and representation, and on cultural policy have been published in many journals and anthologies; and he has received several awards, including fellowships from the Rockefeller and McKnight foundations. He has helped develop grassroots and institutional initiatives toward the eradication of systemic racism in the arts, such as the Canada Council Committee for Racial Equity in the Arts and the conferences Shooting the System and Race to the Screen. He has also served on the boards of several arts and community organizations, including FUSE Magazine, A Space Gallery, and Gay Asians Toronto.