Should free speech trump hate laws? Yes

Globe and Mail
William Whatcott isn’t on the invitation list to anybody’s pride parade. The unabashed anti-gay activist believes that homosexuals are “sodomites” who spread filth and disease. He used to stuff anti-gay propaganda into people’s mailboxes, with headlines such as “Keep homosexuality out of Saskatoon’s public schools.” He says his beliefs are rooted in religion. After all, the Bible preaches that homosexuals are full of “sin and depravity.”
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In the United States, Mr. Whatcott would be just another Christian fundamentalist nutbar, like Michele Bachmann, and nobody would pay attention to him (unless he decided to run for office). In Canada, however, he was branded a human-rights violator. In 2005, the Saskatchewan Human Rights Commission ordered him to pay a $17,500 fine and stop passing out his leaflets after four complainants said they were offended. “I came home to the stark reality that this is what gay and lesbian people face every day of their lives,” one of the complainants said. “Should we have to put up with that? Should we have to put up with being called ‘filth’? Should I have to be referred to as a ‘Sodomite’?” he asked. “It makes me feel less of a person.”

Now the case has wound its way up to the Supreme Court of Canada, which must decide whether what Mr. Whatcott did and said should be against the law. Should free speech trump anti-hate protections?

In matters of free speech, Canada and the United States draw the line in very different places. The U.S. First Amendment is so strong that it guarantees the right of the KKK and neo-Nazis to march through the streets. Canada is far more squeamish – “a pleasantly authoritarian state,” as Alan Borovoy, the former head of the Canadian Civil Liberties Association, once put it. The current hate-speech law was set in 1990, when the Supreme Court upheld a hate provision involving a white supremacist named John Ross Taylor. At the time, the court ruled that censorship laws were acceptable if hateful speech went too far – that is, if it expressed “unusually strong and deep-felt emotions of detestation, calumny and vilification.”

Since then, our human-rights commissions have been decidedly sensitive about what they find offensive, especially when it concerns Muslims or homosexuals. They’ve been especially hard on conservative Christians. In 2002, for example, an Alberta pastor, Stephen Boissoin, wrote a letter to the Red Deer Advocate in which he compared gay-rights activists to pedophiles, drug dealers and pimps. A University of Calgary professor took Mr. Boissoin to the provincial human-rights commission, which ordered him to make a written apology to the professor, pay him $5,000, and refrain from saying anything “disparaging” about homosexuals ever again. The provincial human-rights legislation was also used in an effort to muzzle Calgary Bishop Frederick Henry, who opposed gay marriage.

For the record, I fully support gay rights. I also fully support free speech. That means anything this side of incitement to violence. I believe the current law is dreadful, because even the wisest people find it tough to draw the line between speech that’s merely offensive and speech that’s downright hateful. And in my limited experience, even human-rights bureaucrats aren’t always the wisest people. In any case, that line will always be hopelessly subjective.

For that matter, if we’re determined to ban speech that’s truly hateful, then why not start with the Bible and the Koran? Our holy books are laced with homophobia, intolerance, anti-Semitism, ethnic cleansing and wife-beating. It’s astonishing that we allow our children to be exposed to them. Or, as Mr. Justice Louis LeBel put it at Wednesday’s Supreme Court hearing, if we were serious about banning hate speech, “the Human Rights Commission would be in the position of reviewing the scriptures.”

Lawyers arguing in favour of the current law insist that censorship is necessary to protect minority rights. They claim this protection is even more important in the digital age, when hateful speech can fly around the globe in a nanosecond. But censoring speech on the Internet is not only wrong, it’s futile. Let China and Iran try to do it. We should not.

And if we need the law to protect us from idiots and bigots, who will protect us from the law? To whom shall we award the job of deciding which speech is harmful and which is not, which speech the public will be allowed to hear and which speech it will not? Hate-speech laws are a double-edged sword. And the sword we use against those who offend us might some day be turned back on us.

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