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3. Freedom of Expression and the Regulation of Hate Speech
The debate about section 13 of the CHRA is at root a debate about whether or to what extent the legal restriction of hate speech can be reconciled with our political and constitutional commitment to freedom of expression. The issue is often framed in more general terms as a contest between, on the one hand, the right to equality, advanced by hate speech laws, and on the other, the freedom of the individual to express her/himself. Framed in this abstract way, the issue appears intractable. A resolution is possible, however, once we recognize the limited potential of hate speech regulation to advance equality and the limited value of hate speech.
(a) Equality, Human Rights and Hate Speech
The purpose of the CHRA, as set out in section 2, is to advance "the principle that all individuals should have an opportunity equal to other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices...." More particularly, the object of human rights legislation is "to remove discrimination."38 The focus of the law is on the effect or impact of a particular act or practice rather than on the intention of the actor. The purpose "is not to punish the discriminator, but rather to provide relief for the victims of discrimination."39 The appropriate response to effects or systemic discrimination is education, conciliation, and compensation. In the words of Howe and Johnson: "In dealing with rights abusers, commissions were not to punish but to reform, by bringing the parties together in recognition of the importance of human rights and the need to rectify past misdeeds."40
Section 13 of the CHRA restricts hate speech as a form of discrimination. According to the CHRT: "The purpose of section 13 is to remove hate messages from the public discourse and to promote equality, tolerance and the dignity of the person."41 Hate messages are said to be harmful "in two significant ways": "First they undermine the dignity and self-worth of target group members and, secondly, they erode the tolerance and open-mindedness that must flourish in a multi-cultural society that is committed to the idea of equality."42 The object of the section 13 ban is to protect the members of identifiable groups from the impact of discriminatory expression. A finding that section 13 has been breached is based on the effect or character of the communication and not on the intention of the communicator. The remedies for breach of section 13 are compensatory rather than punitive – a cease and desist order and monetary compensation (although, as noted above, a fine may be imposed in exceptional circumstances).
Freedom of expression protects the individual’s freedom to communicate with others. The right of the individual is to participate in an activity that is deeply social in character, that involves socially created languages and the use of community resources. There are many arguments for protecting freedom of expression, but all seem to focus on one, or a combination of, three values: truth, democracy, and individual autonomy. Freedom of expression should be protected because it contributes to the public’s recognition of truth or to the growth of public knowledge; or because it is necessary to the operation of a democratic form of government; or because it is vital to individual self realization or is an important aspect of individual autonomy. According to the Supreme Court of Canada, a commitment to freedom of expression, which extends protection to political, artistic, scientific and intimate expression, must rest on the contribution that freedom of expression makes to all three values.43
Each of the established accounts of the value of freedom of expression rests on a recognition that individual autonomy or agency is deeply social in its creation and expression. We become individuals capable of thought and judgment, we flourish as rational and feeling persons, when we join in conversation with others and participate in the life of the community. The social emergence of human agency and individual identity can be expressed in the language of truth/knowledge, individual self-realization/autonomy, or democratic self-government. Each account of the value of freedom of expression represents a particular perspective on, or dimension of, the constitution of individual agency in community life.
Recognition that individual agency and identity emerge in communicative interaction is crucial to understanding not only the value of expression but also its potential for harm. Our dependence on expression means that words can sometimes be harmful. Expression can cause fear, it can harass, it can mislead, and it can undermine self-esteem. The inclusion of section 1 in the Charter of Rights and Freedoms is an acknowledgement that even basic rights, such as freedom of expression, may be limited when their exercise causes harm to the public interest or the rights of others.
Freedom of expression is a moral or political right that is constitutionally protected in Canada. However, the proper scope and limits of the freedom should not be debated exclusively in legal or constitutional terms and should not simply be left to the courts for resolution. A determination by the courts that a particular law is consistent with the Charter should not terminate public debate about its wisdom as public policy, including whether it pays adequate respect to important rights and interests such as freedom of expression. In the discussion that follows I refer to judicial decisions about the constitutionality of hate speech laws, but I do not consider that these decisions resolve the public debate about section 13 and other forms of hate speech law or that the issue should be understood simply in terms of the proper scope and limits of the constitutional right to freedom of expression.
(c) Judicial Review of Hate Speech Laws
As noted earlier, the Supreme Court of Canada in a split decision ruled that section 13 of the CHRA is consistent with the Charter. In reaching its decision in CHRC v. Taylor,44 the Court drew heavily on its analysis in the companion case of R. v. Keegstra,45 which affirmed the constitutionality of the Criminal Code prohibition on the "wilful promotion of hatred." And so I will briefly outline the Court’s judgment in Keegstra before examining the Taylor judgment.
James Keegstra was a teacher in the high school in Eckville, Alberta. For almost 10 years he taught his students about an all-encompassing conspiracy on the part of Jews to undermine Christianity and control the world. He told his students that Jews were "treacherous," "subversive," "sadistic," "money-loving," "power hungry" and "child killers." He used the teacher’s punishment and reward powers to ensure that his students parroted his ideas. Students who did not adopt, or acquiesce in, his views did poorly in his class. When Mr. Keegstra’s teaching finally became a public issue, he was dismissed from his position. A year later he was charged under section 319 (2) of the Criminal Code with wilfully promoting hatred.
Keegstra challenged the constitutionality of section 319 (2), arguing that it violated his freedom of expression under the Charter of Rights and Freedoms. Chief Justice Dickson, writing for the majority of the Supreme Court of Canada, accepted that section 319(2) of the Criminal Code restricted expression, so that the provision violated freedom of expression under section 2(b) of the Charter. However, he found that the restriction was justified under section 1, the Charter’s limitation provision, because it limited "a special category of expression which strays some distance from the spirit of section 2(b)," advanced the important goal of preventing the spread of racist ideas and advanced this goal rationally and with minimal impairment to the freedom. Madame Justice McLachlin, in her dissenting judgment, agreed that preventing the spread of hateful ideas was an important end but did not accept that the criminal prohibition advanced this end effectively and at minimal cost to freedom of expression.
At the outset of his section 1 analysis, Chief Justice Dickson described the harms caused by hate promotion. He referred first to the emotional or psychological injury experienced by the target group. "It is indisputable," he said, "that the emotional damage caused by words may be of grave psychological and social consequence." The "derision, hostility and abuse encouraged by hate propaganda ... have a severely negative impact" on an individual target group member because her/his "sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to the groups to which he or she belongs." Because an individual ’s identity is partly constituted by her/his association and interaction with others, she/he experiences attacks on the group(s) to which she/he belongs personally and sometimes very deeply. The second injury or harm identified by Dickson CJ is the harm that hate speech has upon "society at large." If members of the larger community are persuaded by the message of hate speech, they may engage in acts of violence and discrimination, causing "serious discord" in the community. Dickson CJ quoted from the report of the Cohen Committee, which found that "individuals can be persuaded to believe almost anything if the information or ideas are communicated using the right technique and in the proper circumstances.... It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause." According to Chief Justice Dickson the state is justified in restricting the extreme expression of hate-mongers such as James Keegstra because this expression may lead (cause) others to hate the members of the targeted group and to act towards them in a violent or discriminatory way or because these views may be internalized by group members, damaging their self-esteem. He accepted that there is a causal link between expression and the spread of hate because he was sceptical about the role of rational agency in the communicative process, at least in certain circumstances. We should not, said Chief Justice Dickson, "overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas."
Dickson CJ accepted that the hate promotion provision restricts only a narrow category of expression. Merely unpopular or unconventional communications are not caught by the ban. Hatred, he observed, is an emotion that is "intense and extreme" in character: "To promote hatred is to instil detestation, enmity, ill-will and malevolence in another." He also noted that the restriction applies only when an individual "wilfully promotes hatred." The speaker must intend to promote hatred or he/she must recognize that the promotion of hatred is the likely consequence of her/his expression. This mental element, said Dickson CJ, ensures that only the most extreme statements will be caught by the Code provision. The accused must "have subjectively desired the promotion of hatred or have foreseen such a consequence as certain to result from the communication." Dickson CJ acknowledged that the causal link between a particular act of expression and the generation of hatred in the community is difficult to establish. It is enough, he said, that the speaker knows or is aware that his or her expression creates a substantial risk that hatred will be spread or that acts of violence will increase. The hate-monger must intend or foresee "as substantially certain, a direct and active stimulation of hatred against an identifiable group."
In Taylor, Chief Justice Dickson, again writing for the majority, followed a similar line of reasoning in upholding section 13 of the CHRA.46 Dickson CJ adopted an interpretation of section 13 that was not "particularly expansive" and was confined to a relatively narrow category of extreme expression. At the same time, he acknowledged that "the nature of human rights legislation militates against an unduly narrow reading of section 13(1)". Section 13, in contrast to the Criminal Code provision considered in the Keegstra decision, did not require proof of an intention to spread hatred. As Chief Justice Dickson observed, the focus of the section "is solely upon likely effects, it being irrelevant whether an individual wishes to expose persons to hatred or contempt on the basis of their race or religion." Dickson CJ held that the absence of an intention requirement did not undermine the constitutionality of section 13 because the purpose of human rights legislation is to "compensate and protect" the victim rather than "stigmatize or punish" the person who has discriminated. Even though "the section may impose a slightly broader limit upon freedom of expression than does section 319(2) [the hate speech provision] of the Criminal Code ... the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision."47
There are two difficulties with the Court’s attempt to reconcile the regulation of hate speech with the right to freedom of expression. The first is the claim that there is a causal link between the expression of hateful views and the spread of hatred in the community. The second is the claim or assumption that it is possible to isolate a narrow category of extreme or hateful speech that reinforces, or contributes to, hatred in the community.
In the Keegstra and Taylor judgments, the majority of the Supreme Court of Canada was prepared to treat hate speech as responsible for the spread of hatred and for increases in racist violence because they were sceptical that the audience would always exercise rational judgment when it considered racist claims. The concern was that those who hear racist views may come to view the target group differently and act towards its members in a discriminatory or violent way. Hate speech damages the group’ s position in the community because it changes or reinforces the way that members of the dominant group think about the target group and its members. This was the view taken by the Cohen Committee in its report recommending the criminalization of hate promotion:
[W]e are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them.... While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumph of impudent propaganda such as Hitler’s, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.
The readiness with which millions can be reached with messages of every kind is a changed circumstance of importance. Radio, television, motion pictures, the pervasiveness of print are new elements in the 20th century which the classic supporters of free speech never had to reckon with [...]
Those who urged a century ago that men should be allowed to express themselves with utter freedom even though the heavens fall did so with great confidence that they would not fall. That degree of confidence is not open to us today. We know that, as well as individual interests, there are social interests to be protected, and these are not always protected by unrestricted individual freedom. The triumphs of Fascism in Italy, and National Socialism in Germany through audaciously false propaganda have shown how fragile tolerant liberal societies can be in certain circumstances. They have also shown us the large element of irrationality in human nature which makes people vulnerable to propaganda in times of stress and strain.48
If some individuals are persuaded of certain views, which they then act on, we might say that the expression has "caused" the action. However, under most accounts of freedom of expression, the state is not justified in restricting expression simply because it causes harm in this way, by persuading its audience. The listener and not the speaker is responsible for the judgments she/he makes and the actions she/he takes. The familiar freedom of expression position is that ideas cannot be censored simply because we fear that members of the community may find them persuasive or that an individual’ s self-understanding or self-esteem may be negatively affected. It is often said that we should respond to racist claims not with censorship, but by offering competing views that make the case for equal respect or by creating more avenues for marginalized groups to express themselves. Faith in human reason underlies most accounts of freedom of expression and cannot simply be cut out and discarded from the analysis. The implications of downplaying this faith in reason are enormous. Upon what is our commitment to freedom of expression based, if not on a belief in human reason and its power to recognize truth? What restrictions on expression are not acceptable once we have lost faith in human reason? If we are unwilling to trust, or give space to, individual judgment and public reason, then the question of censorship will turn simply on whether the particular expression conveys a good or bad message or whether we think that public acceptance of the message will have good or bad consequences. But this amounts to a rejection of freedom of expression as a political/constitutional principle. A commitment to freedom of expression means protecting expression for reasons more basic than our agreement with its message, for reasons independent of its content.49
The other difficulty with the Court’s approach is its attempt to isolate a narrow category of extreme expression for restriction. It is difficult to see how a particular instance of bigoted or hateful expression, however extreme, "silences" the members of a target group (damages their self-esteem so that they withdraw from public discourse) or leads others to hate them or discriminate against them. The spread of hatred in the community is a systemic problem. No one instance of expression leads to hatred or silencing, but a wide range of discriminatory representations (some extreme and some more temperate and even commonplace) may contribute to hateful attitudes and discriminatory actions in the community or to the marginalization of an identifiable group. It is difficult to imagine that the bizarre views of Keegstra would be taken seriously by anyone who was not already deeply mired in irrational hatred or prejudice or who was not limited in his or her capacity for reasoned thought, or who was not in a subordinate or vulnerable position in relation to the speaker. But if the problem is systemic, then there is no way to isolate a narrow category of extreme or hateful expression that "causes" or leads to hatred, discrimination and silencing. The choice seems to be to restrict nothing or everything.
In the Taylor decision there is an obvious tension between the Court’s affirmation of the larger purposes of human rights law and its narrow definition of the scope of section 13. The Court said that the purpose of section 13, as part of a human rights law, is "to prevent the spread of prejudice and to foster tolerance and equality in the community." To advance this purpose, it might be necessary to ban any expression that encourages a negative view of the group or undermines its position in society – that defames or stereotypes the members of the group. However, the courts, and the CHRT, have limited the scope of section 13 to the most extreme and hateful forms of discriminatory expression. This has been necessary because a broader restriction on group defamation would involve a significant intervention into the conduct of public discourse and would severely compromise freedom of expression in the community. In section 4 of this report, I will argue that the section 13 ban cannot be confined to extreme or hateful expression, if its purpose is to prohibit speech that negatively affects the dignity or status of the members of an identifiable group. The purpose of a narrow hate speech ban must be less ambitious.
(d) Hate Speech on the Internet
The Internet offers a low-cost way to communicate with a potentially large audience. It enables individuals and groups with common interests to connect and interact with one another, even if they are geographically remote. It is also an effective way to reach young people, who may spend a significant amount of time online and who may either look for or stumble across particular websites. Individuals can access material on the Internet easily and without personal risk.50 These attributes have made the Internet a key source of information for members of the public and an important communication vehicle for individuals who do not have the resources to reach an audience through the traditional media. The Internet has, because of these characteristics, been described as a democratic medium – and an important alternative to the mainstream media. These characteristics have also made the Internet the preferred medium for hate promoters.51 Moreover, because the Internet audience is highly fragmented, it is easy for a particular website to operate at the margins and avoid critical public scrutiny. While most Internet websites are public in the sense that they are generally accessible, the audience for a particular site is often self-selecting and sympathetic and sometimes quite small. Thus these sites can be an effective means for individuals and groups who hold hateful views to encourage others to adopt more extreme views or to take violent action.
If the purpose of hate speech law is to prevent the circulation of discriminatory views or the defamation of identifiable groups, then the size of the audience for a particular communication may be an important factor in the decision whether or not to censor. The larger the audience, the greater the potential for harm. However, if the purpose is instead to prevent the advocacy or threat of violence, then audience size is less important. Indeed, smaller hate sites (or those that are less easily accessed such as chat rooms) that link like-minded individuals are able to encourage a sense of intimacy and identity and to operate below the radar. These sites ought to be of particular concern because they may be more effective in promoting extreme views and encouraging others to take radical action. Hate mongers can use these sites to attract new recruits or encourage violent action, without exposing themselves to a broad and potentially critical audience. This is why some effort and expense is required to investigate hate on the Internet. Its complex public and private character makes the Internet a potent vehicle for the reinforcement of hateful views and the advocacy of violence.
Internet content is notoriously difficult to regulate because material can be posted anonymously and redirected quickly and because it can be generated anywhere in the world. As long as hate speech remains substantially unregulated in the United States, it will be accessible to Canadians on the Internet. Indeed, it is sometimes argued that there should not be a law prohibiting hate on the Internet, for the simple reason that it will be ineffective.52 This argument, I think, rests on a mistaken or unrealistic understanding of the purpose and scope of hate speech law. I will argue in section 4 of the report that hate speech regulation should target the threat, advocacy or justification of violence. Every instance of hate speech – every threat and every incitement – is harmful in itself and ought to be prohibited. Even if we are unable to prevent some, perhaps even most, instances of hate speech, we ought to prevent those that we can. I might add that a threat of violence or a call to violence will seem less abstract, and more immediate, when it comes from an individual or group within the same geographic area or political jurisdiction as those who are targeted. Moreover, a prohibition on extremist speech, even if it cannot prevent all such speech, represents an important affirmation to minority communities of their right not to be subjected to intimidation.53
The mainstream media are subject to non-legal or market constraints that ordinarily prevent them from engaging in the extreme expression that is the subject of hate speech laws – although not necessarily expression that stereotypes or defames the members of an identifiable group. These constraints include a reliance on advertising revenue and the need to attract a large audience. Section 13 of the CHRA applies to the mainstream print media in a roundabout way because most mainstream publications are reproduced on the Internet. Even if this was not anticipated at the time section 13(2) was enacted, there is no principled basis for excluding mainstream publications (that are reproduced on the Internet) from the application of section 13. The application of section 13 to the mainstream press might not be a concern since these publications do not generally engage in hate speech. Nevertheless, a newspaper may be the subject of a complaint that it has unfairly depicted or described the members of an identifiable group. Unless the complaint is trivial, vexatious, frivolous or made in bad faith (and this may not be a straightforward determination, given the courts’ generous description of the purpose of section 13) it must be investigated by the CHRC. As I will discuss in section 5 of this report, every time a complaint is investigated by the CHRC, even if it is ultimately dismissed, the freedom of expression interests of the respondent are compromised.
