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Hate Speech Laws

I want to argue now that Canada’s hate-speech legislation, specifically 319(2) of the criminal code, is a form of unilateral censorship. Section 319(2) states that

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against an identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.
Section 319(3) narrows the scope of the application of 319(2):
(3) No person shall be convicted of an offence under subsection (2) (a) if he establishes that the statements communicated were true; (b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
The legislation defines ‘identifiable group’ as any section of the public distinguished by colour, race, religion or ethnic origin. In 2004 Bill C-250 amended the law to include ‘sexual orientation’. It is generally agreed that this Canadian piece of legislation is directed towards curtailing the expression of racists and other bigots. The incentive to employ such legislation is obvious: racists and other bigots challenge central values of most contemporary democracies. For instance, the judicial opinion in Keegstra is that hate speech challenges, “Canada’s commitment to the values of equality and multiculturalism in ss.15 and 27 of the Charter.”15 Western democracies (at least recently) by and large promote the idea that it is possible for people from a variety of religious, ethnic and racial backgrounds to live together in peace and harmony. While this is often referred to as the value of ‘multiculturalism’, we will refer to this as the value of ‘inclusivism’ for a couple of reasons. First, there is no natural antonym for ‘multiculturalism’, whereas ‘exclusivism’ can be taken as the antonym for ‘inclusivism’. Second, sometimes ‘multiculturalism’ is narrowly understood in terms of a thesis about different cultures, and sometimes more broadly to include both culture and race. Obviously these two notions are logically independent because people of different races may share the same culture, and people of the same race may have different cultures. (The Supreme Court judgment in Keegstra is best seen as using the broader understanding, and so dovetails nicely with our understanding of inclusivism).

Racists who make noxious statements such as “my race is my nation and my nation is my race” propose to exclude membership in a certain community based simply on race: they promote the value of exclusion. To most of us, this strikes us as primeval thinking and a serious threat to the value of inclusion. True, the value of inclusion cannot be said to be fully realized in Canadian society, nevertheless considerable strides have been achieved in the last three centuries, e.g., Canada no longer permits slavery, there is no legislated exclusion of franchise based on race, and in the last century women were finally allowed to vote. So it is with much horror that we hear that racists want to “hang their enemies” where they may mean by their ‘enemies’ those who are not of their race, and inclusivists of the same race who oppose their exclusivist (i.e., racist) doctrines.

There are two points worth making about this most distasteful speech. First, in broadest terms, it has a political message. Theirs is a (repugnant) view about the good life: the good life consists of living with people of the same race, and only of the same race. This view about the good life has obvious political implications: the one race per nation stance is a view about how a polity should be constituted. Thankfully, it is clearly not a political view most share, but it is a political view. As much as we find racist speech offensive, it is difficult to see how it could be maintained that all or even most racist speech is not politically relevant. As we have said, it offers a view on how the polity should be constituted. Also, racists often have reasoned views. Let me hasten to add that they are not what we would recognize as good reasons, but it would be a mistake to think that we can dismiss exclusivists simply because they assault us with expression that is simply emotive speech. Racists, for example, will sometimes support their view with an appeal to the “naturalness” of races living in separate nations, or that this is part of God’s plan.16 On occasion, there is an appeal to justice: affirmative action may preferentially give jobs or some other perks to persons based on race, but this is unjust according to racists. They argue that such problems would never arise if a “one race per nation” policy were adopted. Sometimes the appeal is to economic or political advantages: racists in America point to the success of nations like China, Japan or Northern European countries which they claim have more racial homogeneity than Canada and the U.S.A and these can serve as economic models. Therefore, it is a mistake to think that their speech is not political or that it is mere emotional vitriol. Nor is it plausible to think that 319(2) is only used to prosecute those who spew merely emotional vitriol. For example, the following is taken from the judicial decision in R. v. Andrews:
The ideology expressed by the material was summarized as follows by counsel for the appellants:

... the material argues that God bestowed his greatest gifts only on the "White people"; that if it were God's plan to create one "coffee-coloured race of `humanity' it would have been created from Genesis"; and that therefore all those who urge a homogeneous "race-mixed planet" are, in fact, working against God's will. In forwarding the opinion that members of minority groups are responsible for increases in the violent crime rate, it is said that violent crime is increasing almost in proportion to the increase of minority immigrants coming into Canada. A high proportion of violent crimes are committed by blacks. America is being "swamped by coloureds who do not believe in democracy and harbour a hatred for white people." The best way to end racial strife, an excerpt opines, is by a separation of the races "through a repatriation of non-whites to their own lands where their own race is the majority..."17

The Court18 did not challenge that this was a fair summary of the appellants’ views, nor that the appellants offered reasons for their views. So, it is clear that the Court convicted in a case where expression went beyond mere emotional vitriol. Again, I cannot stress enough that I am not saying these are good reasons for believing their position—in my opinion they are not—but they do appear to be reasons.19

It might be thought that to the extent that racist and other exclusivist speech has a political message it might be protected under the exception 319c, which, again, reads: “(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true.” The courts have paid surprisingly little attention to the political dimension of this speech. Again, the Court did not challenge the appellants’ description of the racist materials just cited, and this material clearly has a political message. The fact that there is a political message here cannot be disputed because the Court itself acknowledged the connection between the censored expressions and the political activities of the accused:

the appellants belonged to the Nationalist Party of Canada, a white nationalist political organization. Mr. Andrews was the party leader and Mr. Smith its secretary. Both were members of the party's central committee, the organization responsible for publishing and distributing the bi-monthly Nationalist Reporter.20
So, by the Court’s own admission, 319(2) can be used to suppress the expression of political material of a political organization and incarcerate political leaders. This seems especially surprising given that the Court acknowledged the connection between political speech and the value of freedom of expression.21

In the terms developed here, 319(2) is a piece of unilateral censorship because it does not prohibit speaking against the position of exclusivists in the strongest terms or speaking in favour of inclusivism in the strongest terms; but it does prohibit speaking in the strongest terms against the inclusivist position and speaking for the exclusivist position in the strongest terms. If there is any doubt that hate speech legislation privileges the inclusivism view—and I do not see how this can be doubted22—consider the following example. A racist-terrorist has managed to plant a nuclear bomb in a major urban centre and threatens to detonate the bomb unless a televised debate is held on the inclusivism/exclusivism issue. The debate question is this: “Should Canada become a racially homogenous white nation?” You are a well-known debater and strong proponent of inclusivism. The terrorist has chosen you to debate the exclusivist side for him. In itself this is not an impossible task: many good debaters can argue both sides of an issue. A well-known racist has what we would see as the more enviable task of debating the inclusivist’s side. Unbeknownst to your debating partner, the terrorist has arranged that an opinion poll will be taken before and after the televised debate. If you fail to bring more people around to the exclusivist side then the terrorist will detonate the bomb—a very strong incentive to debate forcefully. But not, it seems, an impossible task either. For you are not required to bring a majority opinion to the racist side, you only need to increase the number of persons who are persuaded, e.g., if 10% of the population have racist sentiments before the debate you need only raise this to 10.1%, conversely, you cannot lose even .1% in the debate or the terrorist will detonate the bomb. The terrorist says that he will ensure unequivocally that it is a fair debate: each side will get equal time and the laws of the land must be obeyed, e.g., you cannot assault your debating partner and hope to win by hurting her or drowning her out. Naturally you should enquire about 319(2). Does it apply in this case? The terrorist answers yes, after all, it is a law of the land. Surely you might wonder whether the terrorist is correct in saying that this is a fair debate. You will be prevented from speaking in the strongest terms in favour of the exclusivist’s viewpoint, but your debating partner will not face any similar restrictions. For example, she may invoke the idea that we have a duty to love and respect people of all races and ethnicities whereas you will be prevented from arguing the converse. You will be prevented from using a typical racist ploy of invoking racial stereotypes in order to denigrate. Suppose you suggest to the terrorist that this is unfair and that you are more than willing to suffer the consequences if you violate 319(2). The terrorist replies that it is very noble of you to be willing to go to jail for up to 2 years in order to strengthen your side of the debate, but if you violate 319(2) the terrorist will instantly detonate the bomb.

It seems in order to make this debate fair, 319(2) would have to be suspended precisely because it enforces upon you unilateral censorship: you are forbidden to speak in the strongest terms for your position. In other words, there seems to be a contradiction in the terrorists’ claim that this will be a fair debate, if 319(2) is in effect. You are forbidden to say that races are essentially different and unequal and we should exile or kill those races and ethnic groups that will not leave. Your opponent is allowed to say that races are not different or unequal and that it is morally abhorrent to think of exiling or killing different races. If we accept the point that the terrorist has arranged an unfair debate, then a similar point applies to the question of whether 319(2) usurps the democratic process: 319(2) makes it much easier to speak in favour of inclusivism and much harder to speak in favour of exclusivism. In short, 319(2) rigs the political debate, and if you have rigged the political debate then you have rigged the election.

It is worth reminding ourselves that Canadian and American legislation differ significantly on what might be said in favour of inclusion and exclusion. Unlike Canada, the United States of America does not have content restrictions. If one were forced by a terrorist to debate as described above, one might argue that the debate should be moved to the U.S., for there the laws of the land do not restrict your side of the issue, that is, it seems undeniable that it is much easier to argue exclusivism when one does not have to contend with a law like 319(2). In the U.S. the political debate (at least on this issue) is not rigged against the exclusivist.

Now it may be thought that the censorship of the political views of exclusivists can be justified in terms of the fact that their view of the good life and the good polity goes against the views of the vast majority of Canadians. There is some indication that this is the Court’s opinion:

Indeed, one may quite plausibly contend that it is through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers. In this regard, the reaction to various types of expression by a democratic government may be perceived as meaningful expression on behalf of the vast majority of citizens.23
As I have argued, the position of hate-mongers amounts to a (distasteful) political viewpoint, so when the court says in legislating against hate propaganda the state is registering its disapproval of the viewpoint of hate-mongers, it is also expressing its disapproval of the political viewpoint of hate-mongers. The fact that this happens to be the vast majority does not affect the underlying logic that this is a form of unilateral censorship, and so undermines the possibility of free and fair elections. An election is not free and fair if a single person is silenced on matters of governance by the others than if this same person had it in her power to silence the rest. In either case the complaint is the same: unilateral censorship rigs the debate; and, if the debate is rigged then the election is rigged.

What of the objection that what exclusivists are agitating for is a non-democratic form of government, whereas the inclusivist’s position is consistent with democracy? Does this give us reason to think that it is permissible to censor the speech of exclusivists? For a start, one might challenge whether the exclusivists’ position is undemocratic. After all, it seems to be within the purview of political debate to consider whom we should exile. As the summary from the Andrews’ case indicates, racists have a (detestable) view about who should be expatriated. But even assuming that exclusivists are advocating a non-democratic government, consider that we allow political debate on the possibility of transforming to non-democratic forms of government: we allow monarchists and those that advocate the dictatorship of the proletariat to have their say. So, even if it can be shown that what exclusivists recommend is undemocratic, unilateral censorship of exclusivists’ speech cannot be justified simply on the basis of its recommendation for non-democratic reforms.

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