The balance between free speech and hate speech has become one of the most contentious issues of late. Those who support the more orthodox view of liberalism are willing to accommodate even the most offensive speech. But two precedent-setting Supreme Court cases — Canada (Human Rights Commission) v. Taylor in 1990 and Canada (Saskatchewan Human Rights Commission) v. Whatcott in 2013 — pushed aside muscular liberalism in favour of restrictions.
In both decisions, the court’s aim was to protect minorities from becoming targets of abuse; however, we should continuously question whether state prohibitions are the most effective means of regulating hate speech.
In Taylor, the two appellants, John Ross Taylor and the Western Guard Party, distributed cards inviting calls to a Toronto telephone number answered by recorded messages. The thrust of the messages concerned a "Jewish conspiracy," one that set out to "control and program" Canadian society. When Taylor and the party refused to acknowledge a cease and desist order, the party was sentenced to a $5,000 fine and Taylor, its leader, was given one year of imprisonment.
In Whatcott, the appellant, William Whatcott, distributed flyers containing vile attacks against gays. The Supreme Court held that two — titled Keep Homosexuality out of Saskatoon’s Public Schools! and Sodomites in our Public Schools — did represent hate speech. Whatcott was eventually found guilty and ordered to pay one complainant $5,000 and another $2,500.
A dilemma exists, however, concerning the court’s subjective use of terms. Writing for the majority in Taylor, Chief Justice Brian Dickson held that the phrase "hatred and contempt" referred to "unusually strong and deep-felt emotions of detestation, calumny and vilification." In dissent, Justice Beverley McLachlin (as she then was) admitted that such wording made it difficult to determine where offensive speech ends and hate speech begins: "(T)he phrase does not assist in sending a clear and precise indication to members of society as to what the limits of impugned speech are."
Similar issues persisted in Whatcott. The court asked whether a "reasonable person, aware of the context and circumstances of the case, would view the expression as exposing the protected group to hatred." The problem is, "reasonable" people often disagree. Moreover, messages that are "repugnant" or "offensive" are not considered criminal unless they "incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects." In other words, "offensive" messages are fine, but the line is drawn at the use of "really offensive" messages.
The question begs: are there more efficient ways to address hate speech? Although not exhaustive, these include: counter-speech, a liberal education, government advertising, media condemnation and an engaged citizenry. An assumption exists that hate will spread without the threat of fines or incarceration, but as Maclean’s magazine observed in Whatcott, "Why expect, however plausible, that a harmful environment will be produced rather than the opposite: where individuals drown out the haters with expression of their own?"
In fact, it’s possible that hate speech could provide a social good. Journalist and author Dan Gardner argues even the most venomous hate speech is not worthless. He suggests hate speech "challenges people to recall why they believe what they do," and in doing so, it also forces us to address important philosophical questions, such as "why is hate wrong?" and "why do we think tolerance, diversity, decency and love are right?"
The Supreme Court, however, remains unconvinced. From its perspective, hate propaganda does not fall under the classification of protected speech since the former undermines both the dignity of minorities and the tolerance essential in a multicultural society. Yet in Whatcott, the evidence used to justify punishment was thin: "the discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians." In other words, "common sense" should prevail.
But courts of law require a higher evidentiary standard. It’s difficult enough to prove that a specific individual’s or group’s expression was the primary — or even a contributing — cause of social strife. And as Stefan Braun notes in Democracy Off Balance, censorship may be self-defeating: "With every toughening of the law, the racist is invited to hide his meanings in more socially pernicious and politically insidious forms — in subtle, symbolic, or coded messages of intolerance and prejudice."
If philosopher Charles Taylor is right in that liberalism is a "fighting creed," then Canadian society must ask itself whether prohibitive measures against hate speech are sensible, or whether more effective means can be used to combat the rhetoric of hate merchants. Supreme Court justices may view hate speech as self-evidently harmful, but in a liberal society, self-evident positions need to be constantly revisited.
Stuart Chambers, Ph.D., teaches in the faculties of arts and social sciences at the University of Ottawa.