No modern democratic country, to the best of my knowledge, has adopted the legislative possibility of multilateral censorship; however, if the previous argument is correct then we must concede that this possibility is consistent with democracy.24 So, in this section I want to explore what this option might look like with respect to the issue of hate-speech. To institute multilateral censorship, legislation would have to be carefully crafted to equally curtail expression in favour of both inclusivism and exclusivism. So, persons who promote (in the strongest terms) exclusivism would be charged as before, but now persons would be charged for advocating (in the strongest terms) inclusivism. So where we have hate laws we could also institute “love laws” that prohibit expressions of inclusion. Such a “love law” could use the same wording as 319(2) only it would add the view that is diametrically opposed to hating. Thus: Section 319(2) might be rewritten as, “Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against or love for 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.” Of course I don’t take this as a serious proposal about what we are likely to do, but it is worth, I think, exploring its shortcomings.25
The only positive argument in favour of multilateral censorship seems to be that it would allow us to consistently uphold our commitment to hate speech laws and democratic elections. On the other hand, I think it can be shown that it offers little to proponents of free expression and those that favour the unilateral censorship of 319(2).
Obviously, friends of freedom of expression are hardly going to be enamoured with multilateral censorship. If we accept Meiklejohn’s argument that freedom of expression contributes to good and wise governmental decisions then multilateral censorship will also seem a giant step backwards. For it is tantamount to addressing a perceived problem of censorship by instituting further censorship. Similar remarks apply to a rights-based defence of freedom of expression: if multilateral censorship were introduced it would clearly further infringe on individual rights. Those who advocate freedom of expression based on such considerations are hardly going to be consoled to hear that the problems of censorship laws like 319(2) are going to be addressed by instituting more encompassing censorship laws.
It seems quite likely too that friends of existing censorship laws would find discomforting the idea that inclusivist speech (expressed in the strongest terms) will now be made illegal. Politicians, community leaders and educators have often used the public forum to combat exclusivism. The instituting of “love laws” would mean curtailing the promotion of inclusivism. Thus, one would have to be very careful of how one promoted inclusivism for fear that it might infringe upon the love laws, for multilateral censorship would rob us of the possibility of speaking in favour of inclusivism in the strongest terms. This “chilling effect” seems a very undesirable effect for inclusivism, for an integral part of the hope for the triumph of inclusivism in our society seems to involve continually advocating and making manifest in public forums the reasons for inclusivism. It is true that lifting unilateral censorship on hate speech would permit a public forum for exclusivists, and so this might be seen as a less desirable result than having unilateral censorship. But the choice we are considering is between using the law to curb both inclusivism and exclusivism speech, or permitting freedom of expression on the inclusivism/exclusivism issue. So the question resolves to whether prohibiting both inclusivist and exclusivist speech is more damaging to the cause of inclusivism than allowing both types of speech. Although it is broadly an empirical issue, it seems likely that the free expression route is more beneficial to the cause of inclusivism. The basic reason for this is that it seems that speaking out in favour of inclusivism has done more for the inclusivist’s cause than prohibiting exclusivist’s speech has contributed to this same end. Specifically, public education programs and the impassioned speech of community leaders and celebrities have probably done much more for the cause of inclusivism than silencing the public voices of exclusivists. Indeed, as Wayne Sumner has recently argued, there is little reason to suppose that 319(2) has done much to promote the cause of inclusivism, and perhaps on occasion may actually hinder it.26
It is perhaps worth noting here that if it can be shown that free and fair votes must be informed then the possibility exists that there are good theoretical reasons, in addition to the more practical reasons noted here, for rejecting the idea of multilateral censorship. In terms of argumentative burden, however, it looks like merely assuming that the voting public must be informed comes close to begging the question against those in favour of censorship legislation. By not making this assumption we have had to face the possibility of multilateral censorship, but the argumentative benefit is that there is less risk of begging the question. In other words, I take it that the assumption that elections must be free and fair is more likely to be granted by many who advocate censorship laws.
To summarize, the rationale for multilateral censorship is simply that, given the assumption that elections must be free and fair but not necessarily informed, it is a possible means to consistently combine censorship with a commitment to democracy. However, as a practical proposal about how we might do things differently, it seems to have little merit.
Unilateral Censorship and a Section 3 Charter Challenge
The argument here raises the possibility of a different constitutional challenge to 319(2) and other unilateral censorship laws. Rather than challenging laws such as 319(2) under section 2 of the Charter which guarantees freedom of expression, it may be possible to challenge them under section 3 of the Charter of Rights and Freedoms, which reads: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The argument could be directed to both clauses in section 3, that is, to the right to vote, which I will refer to as our ‘3a right’; and to qualification for membership in legislative bodies, which I will refer to as our ‘3b right’.
Let us think about the 3b right first. Our previous discussion might not seem relevant, since it was largely framed in terms of voting on issues rather than voting for legislative representatives. However, the argument can easily be changed to accommodate this. Consider the case again of voting for either Mexican or Chinese for dinner. We can straightforwardly imagine this to be a vote for a “dinner representative”, the person who will lead the group to dinner. The candidate running on the Mexican dinner platform will have no reason for complaint against the unilateral censorship against pro-Chinese food speech, for this restriction will not hamper her campaign. A prospective representative running on a pro-Chinese food platform is going to have a much more difficult time. First, there is the problem of whether the bare announcing of a pro-Chinese food campaign will mean that one will run afoul of the unilateral censorship law. Supposing that it is permissible to run on a pro-Chinese food ticket, unilateral censorship will discriminate against this candidate. Imagine prior to the vote for the “dinner representative” the Mexican food candidate provides an impassioned speech for Mexican food, and a number of her supporters chime in with additional points. The pro-Chinese food candidate will be prohibited from mounting a similar campaign, and so too will her supporters be prohibited from any significant advocacy. So, such unilateral censorship is going to make it virtually impossible to be a pro-Chinese food representative. Similarly, unilateral censorship laws make it virtually impossible to be a representative for the political view that Canada should be a racially homogenous society, etc. So, assuming that even the bare announcing of one’s platform does not run afoul of 319(2), still 319(2), for all practical purposes, effectively disqualifies those with such (reprehensible) views from membership in the House of Commons and other legislative bodies, e.g., 319(2) would effectively make it impossible for racists like Andrews to run for parliament. As soon as they opened their mouths on the campaign trail to give an impassioned speech for their political views, they would face criminal charges. This point applies not only to racists but to homophobes as well, for as noted, the scope of 319(2) has been expanded to include sexual orientation. This emendation does not affect prospective parliament members running a campaign that recommends that we love and embrace those of same-sex orientation, but it will make it virtually impossible for any prospective member who campaigns on the platform that homosexuals should be hated for being “vile”, “unnatural”, “abominations” and so on. Unilateral censorship impugns the 3b rights of some.
Notice here that the complaint is not that there must be a candidate on a ballot that represents one’s views. Such a complaint would be met with the response that 3b does not guarantee this: there is nothing in the Charter that mandates that there must be a spectrum of candidates such that everyone has an opportunity to vote for somebody else who will represent one’s political view. However, the Charter does imply that there should be the opportunity to have one’s views represented, because the Charter guarantees that everyone is to be qualified to be a member of the House of Commons. So, it guarantees that there is at least one opportunity for having one’s voice heard in Ottawa: where one runs for the House of Commons. That is, the Charter guarantees the right to have one’s view eligible for the House of Commons because it guarantees that each person is eligible to be a Member of Parliament. It is nonsense to say that everyone is eligible to be a Member of Parliament, but not everyone has the right to speak in the strongest terms for his or her position. So, for all practical purposes, restricting what certain candidates might say is tantamount to denying their 3b rights.
Nor should the challenge be understood as suggesting that the Charter requires that candidates have an equal chance of winning a seat. Again, it would be unreasonable to interpret the Charter in this manner; after all, it would seem to open up a potential complaint from every loser in an election. Rather, a more reasonable interpretation is that, at minimum, there should be no legislative barriers to being eligible to run for the House of Commons. For example, legislation that prohibited qualification in terms of gender, race, or property are perhaps examples of previous legislation that would be incompatible with this Charter right. So, at minimum the Charter guarantee should be understood that there is no legislative barrier to a poor racial minority woman being qualified to sit in the House of Commons. A familiar historical example is the fact legislation in Canada at one time made it illegal for women to be members of Parliament; this legislation appears to be in direct conflict with 3b. Likewise, if legislation were passed that made it legal for women to run for political office, but made it illegal for them to express their views, this too would seem to infringe on the 3b right to be qualified to be a member of the House of Commons; for in this hypothetical scenario we are imaging a legislative impediment to women being qualified to sit in the House of Commons. If we accept this then it seems that we must accept that unilateral censorship that silences homophobes and other bigots has the effect of disqualifying, for all practical purposes, membership in the House of Commons.
In terms of the 3a right to vote, if the preceding argument is sound, then the right to vote has been infringed to an even greater extent than our earlier argument indicates. Recall that we originally imagined that there would be an opportunity to vote for both Mexican and Chinese food, but only the Mexican lobby could speak. This we said had the effect of pro-rating the votes of the Chinese food lobby. But if what we said about 319(2) means disqualification for representation in the House of Commons then we must suppose that the situation is even worse for the Chinese food lobby. We must suppose that they do not even get a chance to vote Chinese food. So, their vote is not like we imagined, namely: it counts, but not for as much as the opposing side. Since a vote for Chinese cannot be expressed, the Chinese lobby has no opportunity to vote. In other words, originally we were imagining the votes for Mexican as counting as 1.0 and Chinese as counting for some fraction (.66 was our example), but now it seems we must imagine their vote as counting as 0.0, for the Chinese lobby would not even have an opportunity to express their views because of a lack of a representative to vote for. Here the choice is between voting for Mexican and not voting at all. 27 But this seems a clear violation of the idea that everyone in the conference was going to be afforded the opportunity to vote his or her dinner choice.
It may be objected that this example trades on the artificiality of there being only two options. Suppose there is an Indian restaurant in town, and so there is a third possibility for dinner. Even if the Chinese food option cannot be voted on, still all the conference delegates can vote their preference on these choices and so nobody’s vote is being discounted. Each person’s vote for one of the two choices, Mexican or Indian, counts for one. Similarly, if racists cannot vote for racist candidates, still their vote for non-racist candidates counts just as much as anyone else’s vote. So, in this case there is no inequality of voting power.
However, when we think through the consequences of this line of objection, it appears to be patently absurd. To see this, imagine rather than unilateral censorship somehow the rule becomes instituted from previous conferences that a vote for Chinese food counts for only .66 of that of any other choice. Those attending the conference for the first time complain that this is to treat their vote for Chinese as of less value than that of the other delegates. To remedy this, it is proposed that no votes for Chinese will be allowed, as a means to restore equality. Of course this is absurd. If the complaint is that the vote for Chinese is treated as less valuable than that of other choices, it does not rectify the situation to prohibit any vote for Chinese dinner. Similarly, it does not rectify the complaint by homophobic individuals who assert that their homophobic vote is treated at a discount rate by unilateral legislation to offer them the remedial action of not even allowing their candidate to run.
This is related to the confusion that thinking that the number of choices on a ballot guarantees that any of them offer what individual voters will see as a significant choice. This can be illustrated by a slight twist on our previous example. Suppose you are a vegetarian and the Chinese restaurant is the only one in town with a vegetarian option. If you are forbidden to vote for this option it does not make a big difference if you can chose between 2 or 10 different non-vegetarian options. In fact, from your point of view the choice would be more significant if there were only two options: Chinese and any one of the 10 non-vegetarian restaurants. The seeming contradiction that you would have more choice with only two options as opposed to 10 options is dispelled when we note that the differences in the non-vegetarian options are not significant for you. Here is a slightly different example that illustrates the same point. Elections in communist countries were often derided because they were simply one party elections. Suppose in response a communist country allowed a greater number of choices. Here the ballot offers 15 different parties to vote for, including: “The Paris Manuscripts of 1844 Marxian Party”, “The Paris Manuscripts of 1844 with a bit of the German Ideology thrown in for good measure Marxian Party”, “The Progressive Das Capital Marxian Party”, “The Orthodox Das Capital Marxian Party”, “The Revisionary Pre-1922 Trotsky Party”, “The Trotsky in Mexico until that terrible thing with an ice-axe (not an ice-pick!) Party”, etc. Here the country escapes the one-party criticism because there are 15 parties to choose from on the ballot. In fact, this is much more choice than is offered on a typical Canadian or American ballot. The obvious criticism here is that this is a multi-party election in name only, because all 15 parties are variants of communism. For some, the choice would be more significant if there were only two parties: any one of the 15 communist parties and some free market alternative. For those who believe that some version of the free market is essential for the good life, none of the 15 communist choices offered aligns with their values. The same point applies to the views of some racists, homophobes and other bigots: our electoral choices are multi-party in name only. A very central value that they believe is important for the realization of the good life, exclusivism, is not present in any of the choices that are offered, nor can they organize to present this as an option to the Canadian electorate.
It is worth noticing here a distinction between legislation that requires political inequality and legislation that permits political inequality. A previous example, the fact that Canadian legislation previously forbade women the vote, may serve here again: this legislation legally required that women not be treated as political equals. Some argue women do not have political equality with men today; for example, women are under-represented in terms of members of parliament. Although women make up approximately half the adult population, women have tended to comprise a dismal proportion of the House of Commons, presently, only slightly more than 20%.28 There may well be social and institutional impediments to women being better represented, but there is no legal impediment, e.g., it would not violate any law if (as unlikely as this seems) women in the next election won 80% of the seats in the parliament. If we accept this inequality as something to be remedied, it must be a criticism that the law permits political inequality, not that the law requires the political inequality of women (as it once did). Whether Canada should permit this much disparity in gender representation in Parliament is a contested issue, for example, Canada could introduce legislation (as have other nations) that would require a certain percentage of seats in parliament be held by women. However, there is almost universal consensus that there should not be legislative barriers to equal political influence, e.g., a law that mandated women should hold no more than 30% of the seats in parliament would be nearly universally denounced. The complaint against unilateral censorship laws is of the less controversial sort, that is, the complaint is that such laws require political inequality, not that they permit political inequality.
So if this argument is successful, then we have established at least a prima facie case that 319(2) infringes on the 3a right of exclusivists to vote in elections; and to the extent that 319(2) makes it difficult if not impossible for prospective exclusivist candidates to run in an election, this violates the 3b right.