Civil Liberties

The Canadian Supreme Court Explains Why Expressions of Intolerance Are Intolerable


Philippe Landreville/Supreme Court of Canada

The First Amendment to the U.S. Constitution says "Congress shall make no law…abridging the freedom of speech." That seemingly categorical language has been interpreted over the years to allow restrictions on various questionable categories of speech, including obscenity, "fighting words," and even "electioneering communications." All things considered, however, it has been an amazingly robust protection against attempts to censor or punish the expression of controversial opinions. To fully appreciate how effective the First Amendment has been, it helps to consider not only horrible tyrannies that routinely try to control what people think and say but also liberal democracies that pay lip service to freedom of speech yet often sacrifice it on the altar of competing values. Canada, for instance.

The Canadian Charter of Rights and Freedoms supposedly guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." But the section on "fundamental freedoms" is preceded by one that adds, in essence, "void when prohibited by law." Section 1 declares that "the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 1 explains how it was possible for the Supreme Court of Canada to rule yesterday (unanimously!) that punishing a man for expressing disapproval of homosexuality is perfectly consistent with freedom of expression…subject to "reasonable limits."

The case involved Bill Whatcott, a resident of Weyburn, Saskatchewan, who in 2001 and 2002 distributed flyers condemning the normalization of homosexuality in public schools. The Saskatchewan Human Rights Tribunal ordered Whatcott to pay a $17,500 fine and to stop handing out anti-gay literature, citing a provincial law banning material that "ridicules, belittles or otherwise affronts the dignity of" people based on various prohibited criteria, including sexual orientation. While the Supreme Court deemed that language excessively vague, it upheld the basic principle that the government can ban speech aimed at inciting hatred, which it defined in a 1990 precedent as "strong and deep-felt emotions of detestation, calumny and vilification." The court tweaked that definition a bit, removing calumny because false statements are not necessarily hate speech and hate speech need not be false. But it concluded that two of Whatcott's flyers, headlined "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools," were indeed hateful enough to be banned:

Passages of these flyers combine many of the hallmarks of hatred identified in the case law. The expression portrays the targeted group as a menace that threatens the safety and well-being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred. The flyers also expressly call for discriminatory treatment of those of same?sex orientation.  It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred.

The court said prohibiting such speech "balances the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings." It explained why expressions of intolerance are intolerable:

Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.

There is no question that speech can be pernicious; consider the above passage, for example. But that danger is hardly limited to the kinds of expression that Canadian courts would consider hateful. Respect for freedom of speech is built on a distinction between force and persuasion, between the sort of harm that words can do, which depends on how others respond to them, and the sort of harm that violence does. Bill Whatcott attempted persuasion, and the government of Saskatchewan responded with force, which should never be acceptable in "a free and democratic society."

Canadian journalist Ezra Levant chronicled his brush with the Alberta Human Rights and Citizenship Commission, stemming from his decision to reprint the Jyllands-Posten Muhammad cartoons, in a 2009 Reason article. This is also good time to revisit Jonathan Rauch's classic Reason essay "The Truth Hurts," based on his insightful and profound book Kindly Inquisitors: The New Attacks on Free Thought

[Thanks to Pierre Honeyman for the tip.]