• John G. Stackhouse, Jr.

The Supreme Court Protects the Hateful “Hate Speech” Law

A rump of the Supreme Court of Canada (several justices did not participate in the ruling) voted unanimously to uphold parts of Saskatchewan’s hate speech law, parts that square with similar legislation in other provinces and at the federal level. I will look forward to legal experts’ opinions about the ruling, but here’s my initial reaction:

I wish this country’s leaders would act like adults, rather than adolescents.

Slander is a bad thing: it’s illegal. So is libel, and it’s illegal. So are other varieties of dangerous speech, such as inciting to riot, treason, and other manifestly intolerable speech-acts.

“Hate speech,” however, is something else. Here’s the key paragraph in the Supreme Court decision:

The definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisions prohibiting hate speech.  Three main prescriptions must be followed.  First, courts must apply the hate speech prohibitions objectively.  The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.  Second, the legislative term “hatred” or “hatred and contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”.  This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.  Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others.  The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant.  The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.  In light of these three directives, the term “hatred” contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

Christians, of all people, should be against speech that promotes hatred. Our Lord tells us to love our neighbours as we love ourselves. Our Bible tells us that every word we utter should be wholesome and helpful (Ephesians 4:29). We’re officially (if not always consistently) in favour of speech that promotes love, not hate.

Among the speech that Christians count as loving, however, is speech that describes evil as such. Loving speech includes accurate names for things, includes denouncing what is wrong, and includes exhorting people to be and do what is right. Such loving speech might come from an addictions counselor, a physician, a psychologist, a psychiatrist, a pastor, or a parent.

Such speech is not always welcomed by its recipients. Sometimes it is, instead, resented. But sometimes it is still the right speech for the occasion. Telling the truth in love is sometimes exactly what is needed, and to withhold it would be wrong.

The Supreme Court’s ruling, it seems to me, leaves dangerously wide open the prospects of free and even helpful speech being curtailed and, indeed, punished.

The issue at hand, of course, was a Christian preacher publicly naming homosexuality as evil and condemning certain behaviours by some kinds of homosexuals.

Well, then, to put the shoe on the other foot, Thomas Mulcair says that evangelicals, because most of us believe that homosexuality is not within the range of acceptable sexual outlooks and behaviours, are positively “un-Canadian.” I look forward to a successful prosecution of him before the provincial Human Rights Commission of his choosing.

More broadly, Richard Dawkins says that Christian belief is a cultural virus, horribly deforming and ultimately destroying everything it can. I look forward to Dawkins’s books being banned in Canada and to him being arrested the next time he sets foot in this country.

But let’s forget, for the moment, the categories most prominent in the actual case before the Court, namely, “Christians,” “homosexuals,” and so on. I think pimps are loathsome. So are child-molesting clergy. So are torturers of pets. Am I to be liable to hate-speech prosecution because I think and say that such people are terribly, terribly wicked? It would seem so. And that seems just ridiculous. And obviously dangerous.

What’s most troubling about this judgment is its implications for everybody. The law prohibits any speech that manifests “abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.” Note that no one has to demonstrate that the speech produces any “discrimination.” It just has to “risk causing discrimination” OR “other harmful effects.” Such as what effects? A surge of anger at being labelled something bad? A moment’s discomfort? A twinge of sadness?

I think this decision was foolish. Therefore, I think that the members of the Supreme Court of Canada who rendered this judgment were, at least in this instance, foolish. I submit that you should think so too. And now, off I go to defend myself in court because I have challenged their competency, which surely has to wound their feelings at least somewhat—and, worse, I have encouraged you to doubt their wisdom also. To cause my fellow Canadian citizens to question the intelligence and prudence of the highest court in the land surely must count as a “harmful effect,” however slight.

And that’s the point: “however slight.”

Inciting to riot is a big deal. Ruining someone’s reputation is to cause obvious and significant damage. Treason really matters. We have laws against these and other forms of demonstrably intolerably harmful speech, speech that produces effects that render the normal functioning of our society impossible.

But so-called hate speech does not make the normal functioning of our society impossible. I don’t like it, sure, when a prominent author says that people like me (Christians) are manifestly more stupid and wicked than people like him. I don’t like it, of course, when the leader of a national political party asserts that I am not fit to hold the passport I do. So when these things happen, I have a good cry, and then I pull myself together and get back to work. That’s what adults do.

If, to be sure, someone tries to sabotage my livelihood on ideological grounds, as has happened to me once, at least, then I’ll jolly well hold them accountable. And I’m glad that, in my case, the system worked to prevent that person’s damaging speech doing me lasting harm. But a democratic society requires the maximum latitude for people to speak freely: to disagree with their politicians and their bosses, to render negative judgments on their students or employees, to criticize plays and books and movies, and to denounce evils, as they see them—and those that do them.

I think Islamists are not just “different” or “less good”: I think that they and their ideology are simply inimical in Canada. I think the same about their Christian counterparts, and about anyone else who wants to replace our pluralistic democracy with a totalitarian regime. I think you should think so, too. So what? If they happened across this weblog post, they might feel a bit badly about my not immediately affirming them. But for them to have any greater reaction than that, let alone to demand that the law of the land require that I not say such things, is to act like a petulant teenager, not like a responsible adult.

Speech that demonstrably results in important damage is one thing. Speech that might result in anything that “a reasonable person” might find “harmful” in some unspecified way and degree does not warrant outlawing.

I fully recognize that the rejoinder will come, “Oh, stop being so alarmist. You’re worrying about nothing. Only really, really bad speech will be prosecuted in this way.”

Well, I warn you now that I will find any such a response to my argument to be harmful and may well have to report it to the Human Rights Commission. Make your comments, then, with great care.

[Sigh]