When Progressives Start Abandoning Free Speech

In the wake of attacks in Charlottesville, Virginia there were a number of rallies in Canadian cities.  The anti-racist counter-demonstrators hugely outnumbered their rally opponents, constituting phenomenal public solidarity against racism.  There was much to be cheered in these events.

One thing dampened this amazing response.  It was how, for some, denouncing hate slid into denouncing speech rights and into dangerous calls for governments to prevent rallies.

It appeared that time-honoured arguments for free speech simply were being overwhelmed by concerns about racial hatred.  Many people seemed to feel (correctly) that criminal hate speech laws aren’t expansive enough to capture what was happening at these rallies and (incorrectly) that therefore we needed a wider range of criminalized speech.

Here’s why that argument is wrong and dangerous.

What would happen if, instead of the current, narrow criminal hate speech laws (more about those below), we had a much more expansive prohibition of ‘hate in general’? 

In fact, we just had something of an experiment along those lines: The highly controversial omnibus legislation Anti-Terrorism Act, 2015 (known to almost everyone as “C-51”) contained a widely denounced speech crime of promoting “terrorism in general.”

You don’t denounce this law because you are in favour of the promotion of terrorism. 

You denounce this law because it is impossible to work within community to support individuals at risk of radicalization to violence if, even having a discussion to understand their views, puts them in the position of potentially committing a crime.  You denounce this law because you want people who hold such views to be seen to hold such views, so we don’t elect them to school board or municipal council.  You denounce this law because the definition and/or interpretations can and do put a chill on genuine political speech.

The same concerns would apply were there a broad criminalization of hateful speech. Over and over we have had to learn this lesson: that we do not support our own safety through criminalizing thought, speech and ideas that we find abhorrent. 

Human rights activists, journalists and academics have the most reason to know this.  Recall, for example, the police response to Sunera Thobani’s comments concerning 9/11 and US foreign policy.  Note that the vast majority of BCCLA workshops to explain how criminal hate speech laws work are delivered to organizations promoting human rights in Palestine and the Boycott, Divestment and Sanctions (BDS) movement, who are habitually under threat from allegations of hate speech. Recall that members of the racialized communities and religious minorities on the pointy end of national security surveillance would be even more broadly exposed to monitoring and profiling in the context of expanded hate speech laws.  Not to mention that vast swathes of the last decade’s freedom of the press arguments would be endangered by broadened hate speech prohibitions. Imagine the ignominious slide from “Je suis Charlie” to “Charlie is over there and go arrest him”. 

People who care about rights and freedoms should already know that if you weaken rights protections, the weaknesses do not map equally across the spectrum of society.  Those weaknesses will be felt disproportionately by the most vulnerable members of our communities.   Think about who is likely to have the most to lose in sweeping discretion given to the state for shutting down speech it doesn’t like or finds potentially “pre-criminal”. 

We must find the moral courage to disagree with friends and allies who equate upholding of speech rights with supporting bigotry. Not only because they’re wrong.  But because they undermine so much of the human rights protections that the people we most want to defend rely on. 

And, in answer to the question I’ve answered over and over in the last few weeks – “Are you seriously suggesting that there is nothing we can do!?” -- I am seriously suggesting no such thing.  The list of what we can do includes everything from counter-demonstrations to anti-radicalization efforts to endorsing and supporting substantive equality at every turn.  Being exposed to hateful rhetoric is not, as it has sometimes been egregiously minimized, a matter of merely being offended.  It is fair and right to acknowledge harm, at the same time as rigorously maintaining that the appropriate remedy is censure, not censorship.

As well, we should understand what does and does not constitute criminal hate speech, so we aren’t accusing people, however heinous they may be, of crimes they are not committing.  

Here is an extract from a case out of Nova Scotia (R. v. A. B., 2012 NSPC 31) that does a good job of unpacking the legal meaning of s. 319(2) of the Criminal Code which involve statements made, other than in private conversation, that willfully promote hatred of an identifiable group [emphasis added]:

[13] The presence of the word “willfully” in subsection (2) is significant in that it requires that there be a subjective element of intent. The person must have intended that the statements as communicated, promote hatred. …

[15] That intent is what sets the bar relatively high and makes the legislation a legitimate limitation on speech. It is unfortunate that the concept of freedom of speech is so often sullied by invoking it in defense of crude epithets. At the same time, it is not illegal simply to say things that are grossly rude, wildly offensive, blatantly false, callously hurtful, or even disgustingly hateful. The law does not make the use of specific words or symbols criminal. Society’s condemnation of those things comes from sources other than the criminal law.

 [18] The promotion of racism, anti-Semitism or homophobia to name only three examples, as outrageously offensive as they are to any right thinking person, are not in themselves criminal acts. Racism is not a crime. It is a curse, but not a crime. Even the promotion of racism is protected by free speech. What is criminal is the promotion of hatred.

[19] The law distinguishes between hatred and racism. On an intuitive level they seem to be a lot alike. There is a legal difference. Hatred is an intense and destabilizing emotion. It goes beyond racism. It may naturally develop from the ignorance and fear that underlie and drive racism. Racism is an attitude or a twisted way of seeing the world through a distorted lens of misconceptions. That way of seeing the world causes people to act in ways that are offensive to the rest of us and pointedly hurtful to the victims at whom it is directed. Hatred takes it a step further. It is intense, aggressive and dangerous. Hatred is not simply disrespect but vilification and detestation.

[20] Promotion in this context means actively supporting or instigating hatred. The Supreme Court of Canada has determined that promotion goes beyond encouragement. In other words, it is not a criminal act to encourage people to hate. An act of hatred or a hateful comment could act as an example or an encouragement to others by emboldening them. Promotion must go beyond uttering hate filled comments and thereby encouraging others to act in the same way.

A final note, a new bill (C-59) has been introduced that amends, by narrowing, the terrorism speech offense of promoting terrorism in general.  This is a win for rights and freedoms, not a loss.  The same holds for very constrained criminal hate speech laws.