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The Week in Review: Tom Flanagan, Child Porn, and Questions We Don't Want to Hear

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CBC Screengrab
CBC Screengrab

This week was spent re-evaluating and debating where the legal balance should be struck between protecting Canadians from harm and protecting Canadians' civil liberties. No, it wasn't only the Supreme Court's Whatcott decision -- which upheld most of the hate crime portions of Saskatchewan's Human Rights Code -- that sparked conversation (and disappointment for libertarians like me) on Wednesday. The arguments got far more heated the next day in the wake of a YouTube video showing academic Tom Flanagan telling a University of Lethbridge audience that the viewing of child pornography does not "harm another person," and that he "has some grave doubts about putting people in jail because of their taste in pictures."

As a result of the comments, Flanagan was quickly dropped from his CBC gig, disowned by the Alberta Wildrose Party, denounced by the Prime Minister's spokesperson and his long-time employer the University of Calgary (which also chose the moment to publicly announce, for the first time, Flanagan's impending spring retirement) and dumped from the upcoming program of the conservative Manning Centre's Networking Conference.

Is it a surprise that remarks that could be (and certainly have been) read as showing a failure to appreciate the profound, wide-ranging and heart-breaking damage done by child pornography would cause outrage? Perhaps not -- but frustrating still that the whole affair has been largely cast simplistically as Flanagan revealing himself to be "okay with child porn," when in fact, as inelegantly as he may have gone about it, Flanagan seemed to be trying to get at a legitimate question: Is criminalizing the act of viewing evidence, after the fact, of a disgusting crime a reasonable curtailment of freedom expression?

Obviously, the reaction to Flanagan's words gives a pretty good indication of where most Canadians would come down on the question, but that doesn't mean it isn't one worth asking and thinking about. Consider: We didn't prosecute people who took to the Internet to watch the repugnant snuff video alleged to be at the heart of the Luka Magnotta murder case, in which a man is apparently seen killing, dismembering, violating and doing otherwise unspeakable things to another man. We prosecuted Luke Magnotta.

In the United States, the Supreme Court struck down on free expression grounds a federal ban on "virtual" child pornography (material depicting images that looked like children engaged in sexual actions, but which involved no real children), suggesting that for the highest court in the land of one major democracy, at least, the ill effects of viewing child pornography alone are not enough to warrant censorship -- it's the actual abuse of children that justifies criminalizing the material. In other words, you can ban bad deeds, but not words (or pictures) that could simply lead to them.

Is this what Tom Flanagan meant by his remarks on Wednesday? I don't know. As the National Post's Jonathan Kay points out, Flanagan's off-the-cuff answer to a question from the audience at a live speaking event was too truncated and lacking in context and preparation for us to be able to tell for sure. (Kay says, "In such situations, people express themselves in all sorts of clumsy, and sometimes bizarre ways," and then goes on to give his own embarrassing experience of repeatedly mistakenly calling "Osama" "Obama" during public speaking events as an example.) But the point is that Flanagan's words could be read as a maladroit expression for what is nonetheless -- as Flanagan's fellow U of C professor Barry Cooper put it -- a defensible position.

It would be a shame if the ultimate outcome of the incident were to lead the country further down the path the Whatcott decision set us on: making the debating of society's most sensitive and difficult subjects off limits.

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