September 2012
Hardly was there time to celebrate the
demise of Section 13, the infamous provision of the Canadian Human Rights Act
prohibiting "communication of hate messages," before we were reminded this was
not the only unwarranted restriction on freedom of speech on the books.
Section 319.2 of the Criminal Code,
for example, forbidding the "willful" promotion of hatred "against any
identifiable group," is currently getting a workout in a Regina courtroom in the
case of Terry Tremaine, a sometime math lecturer and avowed neo-Nazi. While Mr.
Tremaine will have available to him the sorts of due process rights denied to
those hauled before the human rights tribunals – the defence of truth among them
– the end result is much the same: the suppression of speech society finds
objectionable, for the sole reason that it is objectionable. If convicted, he
faces up to two years in jail.
The National Post, in an editorial,
made the case that such prosecutions only provide a platform for the promotion
of the very ideas that were supposedly so toxic as to require suppression. In
the age of the Internet, moreover, only a tiny fraction of such material is ever
likely to be caught in the state’s web, raising questions as to what, if
anything, is being achieved.
But these are practical arguments. I
want to raise a more fundamental objection. Societies that maintain such laws,
after all, are making a statement about who and what they are, the sorts of
principles they value and why.
I’ll make the customary disclaimer
here: freedom of speech is indeed not absolute. But the classical exceptions
developed over the centuries – libel, fraud, and so on – typically find
justification in the concept of harm. It isn’t enough that the speech is
considered offensive. It must be shown to have caused, or be likely to cause,
some demonstrable harm to some identifiable person.
This begins from the recognition of
what an extraordinary thing it is, in a free society, for the state to stop up
people’s mouths. Speech is not merely useful for debating political ideas. It is
innate to us as human beings, built into our very thought processes: to prevent
us from speaking is the next thing to preventing us from thinking. The burden of
proof must therefore be on those who would seek to restrict freedom of speech,
and not on those who wish merely to enjoy that freedom. And that burden must be
a heavy one.
How heavy? In a criminal trial, as
everyone knows, the accused enjoys the presumption of innocence. The state is
required to prove his guilt "beyond a reasonable doubt." What is more, there are
no exceptions. Often the law requires the courts to weigh one principle against
another, most famously via the Charter’s "reasonable limits" clause. But in a
criminal trial, the requirement to prove guilt beyond reasonable doubt is
absolute.
To deprive someone of their freedom of
speech is perhaps not so grave a matter as to deprive them of their physical
liberty. But it is not that far off. It is defensible in certain limited cases,
and only with the most rigorous justification. The harm asserted, therefore,
cannot be vague or subjective. It must be of a kind that others can agree is
harm. That is why the classical exceptions have tended to focus on individuals,
and on the more tangible forms of harm.
Physical injury is an obvious example.
And indeed, the ban on hate speech is often justified by invoking the threat of
violence. But there are other areas of the Criminal Code to deal with that. For
example, Sect 319.1, the section just before the one in dispute, outlaws
inciting hatred against an identifiable group "where such incitement is likely
to lead to a breach of the peace." The purpose of 319.2, then, can only be to
cover cases where no such breach is likely.
Is there another kind of harm that
would justify its imposition? Hurt feelings, as I’ve said, aren’t enough: all
sorts of things can cause subjective offense, with no objective basis for
distinguishing between them. Attempts have been made to draw an analogy to
libel, on the grounds that hate speech amounts to defamation of an entire group.
But the broader and more abstract the claim of harm, the harder it is to show.
Probably the strongest case is that
recently made by the American legal theorist Jeremy Waldron, in his book The
Harm in Hate Speech. Hate speech, he argues, is nothing less than an assault on
the dignity of the targeted groups, robbing them of the "implicit assurance" a
just society owes to all of its citizens: that they are accepted as members of
that society. Without such assurance, it becomes difficult, if not impossible,
for them to participate fully in the community.
I can see that applying, in a society
where such views were dominant. But a handful of neo-Nazis? How is anyone’s
membership in society threatened because somebody, somewhere, has an Adolf
Hitler decoder ring? Perhaps it might be argued that it is only the law that
prevents the few from becoming the many: that in its absence, hatred would be,
not the exception, but the rule.
Yet that is not the experience of free
societies. Rather, it is in backward dictatorships that hatred of minorities is
most virulent. How, indeed, does the impulse arise to protect vulnerable groups
in this way except amid the general climate of tolerance of others that is the
very basis of freedom of speech? Is it the ban on hate speech, then, that
protects them, or the broader absence of such limits?
National Post, July 10, 2012.
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