January 2009
Lots of knowledgeable people have
already weighed in on Richard Moon’sreport
to the Canadian Human Rights Commission on the regulation of hate speech —
including Ezra Levant in
the pages of today’s National Post. Most of these commentaries have
focused on Moon’s welcome call for the repeal of Section 13 of the Human Rights
Act, which authorizes the CHRC to act as the nation’s politically correct
censor-at-large. But aside from that marquee conclusion, the report also
contains some other interesting nuggets, a few of which I’d like to touch on
here:
(1) Give Richard Moon credit: He is the first
person (to my knowledge) who has properly articulated the fundamental tension
between the concept of human rights and the regulation of hate speech. He
does so in Section 4(b) of his report, which I would urge readers to peruse
carefully — especially this part: “The principal recommendation of this
report is that section13 be repealed so that the censorship of Internet hate
speech is dealt with exclusively by the criminal law. A narrowly drawn ban on
hate speech that focuses on expression that is tied to violence does not fit
easily or simply into a human rights law that takes an expansive view of
discrimination and seeks to advance the goal of social equality through
education and conciliation. For reasons discussed in the next part of this
section, the process established in the Canadian Human Rights Acts (CHRA) for
receiving and investigating complaints of discrimination is poorly suited to
section13 complaints. More generally, there is a tension between the general
purpose or ethos of the CHRA and the narrow definition of hate speech adopted by
the CHRT and, with some refinement, supported in this report.”
This is an important insight, and one that critics of
the CHRC (such as me) would do well to appreciate. As Moon writes (in not so
many words), the CHRA is a touchy-feely document designed to address every
imaginable psychic threat to minority communities. It is therefore
understandable that bureaucrats tasked with upholding the CHRA would bring this
all-encompassing mission to every aspect of their labours — including
censorship. The result, Moon notes, is “a tension between the general purpose or
ethos of the CHRA, and the narrow definition of hate speech adopted by [Moon
himself].”
This, more than anything else, explains why Section
13 can’t be fixed with tweaks: It is not the statute per se that is the
problem, but rather the conflict between Canada’s free-speech constitutional
tradition and a CHRC bureaucracy whose mission in life is statutorily guided by
bleeding-heart political correctness.
Upshot: As a law professor, Moon clearly understands
the importance of free speech, and its preeminence over other lofty principles.
Or so I thought until I got to the section on press
councils …
(2) Richard Moon’s suggestion that media be forced
to join press councils smacks of the totalitarian attitudes he disparages
elsewhere in his report. In Section 5(b), Moon writes: “The familiar
refrain of those who oppose the censorship of hate speech or group defamation is
that the answer to bad speech should be “more speech” – hate speech should be
answered, not censored. But if we are serious about the “more speech” answer,
then we must think about the real opportunities individuals and groups have to
participate in public discourse and respond to speech that is unfair and
discriminatory … To advance this end, all major print publications should belong
to a provincial or regional press council that has the authority to receive a
complaint that the publication has depicted an identifiable group in an unfair
or discriminatory manner and, if it decides that the complaint is well-founded,
to order the publication to print its decision. A decision by the council that
its code of conduct has been breached results not in censorship but in “more
speech” – the publication of a statement that the newspaper breached the code
and, more particularly in this context, that it published material that unfairly
represented the members of an identifiable group. If the major publications in
the country are not all willing to join a press council, then the establishment
of a national press council with statutory authority and compulsory membership
should once again be given serious consideration. A newspaper is not simply a
private participant in public discourse; it is an important part of the public
sphere where discussion about the affairs of the community takes place. As such,
it carries a responsibility not to defame or stereotype identifiable groups
within the Canadian community.“
The word “press council” sounds warmer and cuddlier
than “government commission.” But if these councils have the coercive power of
the state behind them, then there really is no difference. Moreover, forced
speech is just as offensive to our free-speech traditions as gagged speech.
Recall that the whole legal fight between Maclean‘s magazine and the
Canadian Islamic Congress began when the magazine’s editor refused the CIC’s
demands to prominently publish a lengthy rebuttal to Mark Steyn’s hit-job on
Muslim radicalism. If Maclean’s had the right to say no to the CIC, why
should it have to say yes to a press council?
There is another flaw with the press-council idea: In
coming years, many — perhaps most — of the complaints that can be expected to be
filed under Section 13 of the CHRA will stem from spicy commentary published on
personal web sites, blogs and Facebook pages. Are all of these fleeting
electronic media supposed to join press councils, too — and pay dues, and be
bound by their bureaucratic dictates and forced publication edicts? If Mr.
Moon’s answer is no (which I suspect it is, since his report makes mention only
of “major publications”) then his press-council idea will be pointless. If the
answer is yes, then it will be completely unworkable.
Upshot: As a law professor, Moon doesn’t seem to have
a perfect grasp on how the media actually works.
(3) Moon’s proposal to strip Canada’s hate-speech law of its Attorney-General sign-off requirement is a bad idea. As I do,
Moon thinks that the best way to regulate truly extreme forms of hate speech is through our criminal law, not our human rights commissions. In this regard, he points to Section 319 of the criminal code, which covers anyone who “willfully promotes hatred against any identifiable group” — but which also notes: “No
proceeding for an offence … shall be instituted without the consent of the Attorney General.”
In Section 4(b) of his report, Moon argues that government should consider doing away with this hurdle, because some fear that
Section 319 prosecutions might be red-lighted “for political reasons.” As I see it, though, the involvement of a politically accountable official is one of the
great virtues of Section 319. It ensures that when a media outlet or pundit gets spuriously prosecuted for hate speech, elected politicians won’t be able to wash
their hands of it.
Which is to say: The government will have to take ownership of the act of censorship, rather than simply hide behind unelected bureaucrats working behind closed doors — as is now the case under Section 13 of the CHRA.
Final upshot: Moon’s basic idea to get rid of Section 13 is admirable. But one wishes that he had stopped there, instead of adding in all sorts of unfortunate ands, buts and howevers.
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