Hate Speech Law in Canada

"Although the 1982 Charter of Rights and Freedoms put free speech and a free press into the bedrock of Canadian law, neither the public nor Canada's courts views these rights as absolutely as Americans have come to view the First Amendment. The Canadian Supreme court has ruled in a series of cases that the government may limit free speech in the name of other worthwhile goals, such as ending discrimination, ensuring social harmony or promoting equality of the sexes.

Canada's most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is "likely to expose a person or group of persons to hatred or contempt" because of "race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age." Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful."

This quote is from a Washington Post article quoted in Issues and Views. (That appears to be a conservative black website insistent on totally free dissent, and highly critical of laws such as the Canadian hate speech code. If anyone knows more about it, I'd be interested.)

The key difference between the two countries is stated in the first paragraph: Americans tend to see First Amendment rights as absolute, and that the right of each individual to free speech trumps any other consideration, such as the rights of a group or the harm that may be caused to individuals within that group as a result of hateful speech in the media (this law ONLY applies to broadcast or public speech). In Canada, this code remains somewhat controversial, but to me it seems to serve effectively as a way of insisting on a certain level of public respect and civility, as well as keeping fresh the debate about what kind of society people want to live in, and how that society should deal with pluralism.

I'm not going to go into how these issues played out in the recent Quebec election right now, but maybe someone would like to talk about it in the comments...

Comments

[language hat]

Well, in this I guess I'm a typical American. I believe absolutely in free speech, and I despise any law that allows a government to prosecute its citizens for speech it defines as "hateful." The world is a messy and difficult place, and honest discourse is bound to be messy and difficult; each side is likely to view the other's speech as "hateful" at some point. If one side has better access to power, it makes it easier to shut down discourse via the courts. What one person calls "civility," another calls "enforced consensus." The First Amendment is one of the few things that's consistently made me proud to be an American during a lifetime chock-full of reasons to be embarrassed about it.

[beth]

I tend to agree with you, but it's a really difficult point. Being married to an Arab-American and writing a book about gay rights has made me even more aware of how damaging media bias and stereotyping can be on an individual level, let alone a collective one. Why is it OK to say anything at all about a particular group, but it's a prosecutable offense to, say, burn a cross on someone's lawn, or desecrate their property? It seems wrong to me that words are considered less harmful than other forms of abuse - surely we've seen enough examples of that on a domestic level to know better - and I wonder if this came out of a time when the framers of the Bill of Rights couldn't imagine a society in which mass media had such power, or when people were quite so free with their free speech.

I grew up in a place where radio talk show comments are the fodder for everyday jokes and normal conversation, and, in my opinion, give people tremendous license to hold onto their prejudices. I made a long comment about this over at Modal Minority on the post "What One is not" if anyone wants to read a fuller explanation of where I'm coming from on this.

[Steve]

I agree with Language Hat. And I'm wondering whether such a law, or in the United States, a constitutional amendment,might end up being twisted into something that it was never intended for. From the end of Reconstruction until Brown v. Board of Education in 1954, the Fourteenth Amendment protected not the freed slaves or their descendants, but large corporations. Granted, it does protect everyone's rights now, but for more than half a century, it was used selectively to protect only the powerful.

If we had an amendment to limit our First Amendment rights, how soon would it be that corporations, which have been defined as persons by the courts, would use a hate speech amendment against the likes of Michael Moore?

[beth]

Hi Steve, thanks for commenting.

I think you're probably quite right that such a law would be abused in the U.S. Although I'm not sure that "Republicans" is a group category like "ethnicity", a hate speech law would definitely give lawyers yet another reason to file suits. I'm not sure, either, if Canada's law applies to newspapers - I don't think it does. The debate that's ensued in the U.S. is, it seems to me, a very good thing, and of course, market forces are also weighing in by advertisers jumping ship - there's more than one way to set limits on "free" expression. That one works in reverse too, though we don't talk about it much.