Something worse than hate speech

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?