The case of Tom Flanagan

Someone mentioned Tom Flanagan, so I thought I’d add a small footnote to the whole Flanagan “child pornography” story (documented in his book, Persona Non Grata, quick summary here), explaining a few things that may not be so obvious to non-academics. There are a lot of people, myself included, who have very little sympathy for Tom’s politics, or the contributions he has made to Canadian public life. And yet there were very, very few of us who did not feel some sympathy for him, after the mobbing he endured from the conservative movement in 2013 – spearheaded by Danielle Smith, the leader of the Wildrose Party at the time, as well as Prime Minister Stephen Harper’s office.

It’s important to understand that, in piling on Flanagan the way they did, they managed to do more than just traumatize him, they also alienated pretty much every conservative intellectual in the country. The reason is that the view Flanagan got pilloried for expressing was not some wild-eyed extremism, it was an extremely mainstream view in political and legal philosophy. Indeed, his argument was taken straight from the pages of John Stuart Mill’s On Liberty – and as such, is one that most of us academics who work in political or legal theory have taught to students. I myself have actually used Canada’s child pornography law as an example in the classroom of a law that Mill would have objected to.

So when Smith and Harper and the rest went nuts on Flanagan, anyone who knows anything about political theory, or anyone who is familiar with John Stuart Mill’s most famous work, took a step back and said “wtf is wrong with these people”? For Smith – who claims to be a libertarian – the reaction was inexcusable, since what Flanagan was expressing was an extremely modest principle in defence of individual liberty. But even if you’re not a libertarian, there’s no excuse for failing to recognize that what Flanagan was expressing was a mainstream and respectable position in conservative intellectual circles (sometimes called “classical liberalism”). I mean, he was practically quoting Mill (this is what he said: “It is a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person…”).

You shouldn’t be able to get in that much trouble for chanelling John Stuart Mill!

Okay, let me back up a bit and explain all this, for those who aren’t so familiar with On Liberty. In that book, Mill articulates a principle that went on to become one of the most influential legal ideas of the 20^th century. We call it the “harm principle”:

As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it… but there is no room for entertaining any such question when a person’s conduct affects the interest of no persons besides himself… In such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

Basically it says that, unless your action can be shown to harm some other person, then it should not be subject to legal regulation. Even if your action is harmful, if the only person being harmed is yourself, then the state has no business forcing you to stop. The action falls within the sphere of personal liberty.

Now obviously a lot of complications arise when you try to explain what should count as a harm, how you draw the boundary between self and other, etc. Nevertheless, the principle came to be extremely influential, leading to a strong shift in both public and legal opinion against “paternalistic” legislation. This led to a series of 20^th century court cases, striking down various forms of legislation that were thought to be unreasonably intrusive – the most famous being laws prohibiting the use of contraception, adultery, as well as laws that prohibit various non-procreative sexual acts. Undoubtedly one of the most influential consequences of this principle was the legalization of homosexual relations – on the grounds that, since they involve relations between consenting adults, they cause no harm to anyone else.

Another significant consequence of Mill’s principle was the legalization of pornography. There were, of course, intense debates (before the internet) about whether the consumption of pornography caused harm to others. The important point is that feminist critics of pornography largely accepted the Millian premise, that in order to make the case for prohibition, they needed to demonstrate a harm – thus they tried to show that consumption of pornography increased the propensity to rape. All sorts of studies and evidence were bounced back and forth, but suffice it to say that this argument did not win the day.

Turning now to the case of child pornography, what does Mill’s principle have to say? In the case of actual photos that depict actual children, there is nothing controversial about criminalizing the consumption of child pornography. To the extent that consumer demand encourages production of the material, it is easy to show the harm that is caused. The issue with the law in Canada is that it is much broader, criminalizing possession of material that includes drawings as well as mere descriptions (i.e. literature). To take the example more resonant in contemporary society, probably the majority of Japanese hentai comics are illegal in Canada. This is something that people have objected to from the very beginning. (I’m old enough to remember when the original act was passed, under Mulroney in 1993. People made exactly this complaint, and there was widespread public debate, with many people taking the same position that Flanagan took.)

So consider a work of child pornography whose production involves no actual children (say, a Japanese comic). Wherein lies the harm in possessing it? Here, if you want to satisfy Mill’s harm principle, you have to make one of two arguments: either that it causes increased propensity to rape, or that it damages the “moral fabric” of society. Both of these arguments have obvious problems. The “propensity to rape” argument tends to suggest that, if anything, all pornography should be illegal (absent some fine-grained evidence to show that depictions of 17-year olds and depictions of 19-year olds have dramatically different causal properties). The “moral fabric” argument is the same one that was used to defend the criminalization of homosexual relations – an argument that has not fared well in today’s legal culture.

There are lots of other fancy arguments that could be brought to bear upon the issue. All I want to point out is that if you take a very standard Millian perspective – which is a very mainstream view in contemporary constitutional jurisprudence – then Canada’s child pornography laws have some very serious problems, since it appears that they unjustly impinge upon individual liberty. Anyone interested in an academic legal view on Canada’s law is encouraged to read this article by Bruce Ryder, of Osgoode Law School. He summarizes his basic objection to the problematic parts of the law as follows:

The law causes harm to society by suppressing thoughts and expression concerning child and youth sexuality that involved no harm in production, fall short of advocating harm and that have at best a tenuous connection to the commission of harmful acts. The child pornography offence criminalizes a range of creative expression in the absence of any persuasive evidence of a risk of harm (103).

So what exactly did Flanagan say? Basically the same thing. He specifically pointed to the way that the law criminalizes depictions that involve no abuse of actual children, then questioned whether it was reasonable to jail people for actions that would appear to involve no harm to others. Actually, he didn’t even question it. He just said that it raises “a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person.” This is basically the same thing that Ryder says in the article linked to above, and the same thing that many, many academics have said about the law.

The point of this somewhat lengthy discourse is to explain some of the subtext of what Flanagan calls “the Incident,” which may not have been apparent to everyone — to explain why Harper evokes such loathing among not just people whom he has attacked personally, like Flanagan, but among intellectuals generally, the sort of people who can recognize a reference to John Stuart Mill when they hear one.

I guess what I’m trying to say is, today’s conservative politicians are such awful, know-nothing reactionaries, they made me feel intellectual solidarity with Tom Flanagan!