The Canadian Jewish Congress has just published a disingenous justification for Section 13 (1), I wrote about that here yesterday. Of particular note is their continued reliance on the flawed work of an obscure lawyer, Alexander Tsesis to justify 13 (1). Tsesis’ unsound reasoning thankfully contributed to the failed Justice Department effort to derail the Section 13 (1) Constitutional Challenge. In response to the CJC’s continued effort to misinform the public I am republishing in part a post I wrote in May of 2008 in which Professor Anuj Desai debunks the work of the CJC’s erstwhile legal champion “Specious Tsesis”.
I highly recommend you read Professor Desai’s criticism of Alexander Tsesis, “Attacking Brandenburg” posted in pdf format below.
Professor Desai authored Attacking Brandenburg with History:Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing It?
It is a criticism of the theory presented by Alexander Tsesis in his book: How Hate Speech Paves the Way for Harmful Social Movements. Tsesis work has been cited as a justification for Section 13 (1) in the legal brief prepared by the Department of Justice that attempts to dismiss the pending Section 13 (1) court challenge.
Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, “hate speech” lays the foundation for harmful social movements that ultimately result in the oppression and persecution of “outgroups.” From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis’s book then proposes a model statute to criminalize “hate speech” based on the long-term harm such speech can cause.
In this Essay, I question the book’s premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the “imminent harm” requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg’s “imminent harm” requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government’s view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.
With his kind permission I reprint Professor Desai’s reply to my enquiry about the work of Alexander Tsesis.( Why is our government basing Canadian Human Rights Law on the work of a middling legal scholar whose profoundly flawed theory has brought him virtual anonymity in his own country?)
I’m not aware of anyone else who has directly addressed Tsesis, in part because, as you imply, he is not particularly well-known here in the U.S. There was another review of his book in the Michigan Law Review by W. Bradley Wendel, who is now at Cornell Law School, although Professor Wendel doesn’t address Tsesis as directly as I do: The Banality of Evil and the First Amendment, 102 Michigan Law Review 1404 (2004) (reviewing Alexander Tsesis, Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements).
However, here are a few suggestions of reading on the general topic that might be of help. A comprehensive book that addresses the broader issue is James Weinstein, Hate Speech, Pornography and the Radical Attack on Free Speech Doctrine (Westview Press, 1999).
Despite its title, it is not polemical at all and very carefully goes through and responds to many arguments in favor of hate speech prohibitions.
There is also a collection of essays entitled Speaking of Race, Speaking of Sex (NYU Press, 1994). It includes a fabulous piece by Henry Louis Gates, Jr. entitled “War of Words: Critical Race Theory and the First Amendment.” Gates is the director of the W.E.B. Du Bois Institute at Harvard and probably the most prominent professor of African American Studies in the U.S. The piece was originally in The New Republic (Sept. 20 and Sept. 27, 1993) and its original title was “Let Them Talk.”
There is also another excellent article in that book by Robert Post entitled “Racist Speech, Democracy, and the First Amendment”. It was originally in the William & Mary Law Review- 32 WM. & MARY L. REV. 267 (1991).] Post is a law professor, then at Berkeley and now at Yale, and is universally viewed as among a handful of the finest constitutional law scholars in the United States. I can say unequivocally that all three of these scholars are far more prominent and respected than Tsesis, although again, I should emphasize that they don’t directly address Tsesis’s book (indeed, the pieces I’m mentioning are all written before Tsesis’s book).
Anuj C. Desai
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
Ezra Levant posted on Alexander Tsesis here.