Censorship, Press Councils And Hate Speech: Three Observations On Richard Moon's CHRC Report

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readers to peruse carefully — especially this part: "The principal recommendation of this report is that section13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law.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.