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Posted by on Mar 3, 2013 in Law, Philosophy | 7 comments

Canadian court gets it wrong on free speech

Among the  issues that come up in my book Freedom of Religion and the Secular State is the relationship between freedom of religion and freedom of speech.

One of the specifics that I discuss at some length is vilification of certain religions and/or their adherents. Another is violent speech in the name of religion, such as the Ayatollah Khomeini’s 1989 fatwā against  Salman Rushdie. As Paul Cliteur has pointed out (you should by his book, too!), the problem here is not that Khomeini’s speech showed a lack of respect for Rushdie, or that it failed to stimulate dialogue, or even that it was socially divisive. Rather, it incited murder. As events demonstrated, such speech creates a clear and present danger to its victim’s life. Rushdie’s Japanese translator, Hitoshi Igarashi, was stabbed to death in 1991 and his Italian translator, Ettore Capriolo, was seriously wounded in the same year. These incidents demonstrate the power of this kind of incitement, by figures who are accorded religious authority, even if they are not in physical proximity to the victim.

With many forms of communication that can reach fanatics of one kind or another everywhere in the world, it would be too much to require that the state restrain incitements to violence only where the speaker and victim are in close physical proximity. Nonetheless, the state should not move too far from the spirit of John Stuart Mill’s famous corn dealer example (incitement of angry mob in front of someone’s house).

Another example that I touch on in Freedom of Religion and the Secular State is the 1994 Rwandan Genocide, in which approximately 800,000 Tutsis were massacred over a period of about three months. Again, this demonstrate the power of the modern media to deliver messages of hatred, particularly hate propaganda that calls for violence against identifiable groups, which could be ethnic, cultural, racial, or religious. Dehumanizing propaganda campaigns of this sort can support acts of discrimination, violence, and even genocide. The state doubtless has an interest in deterring this kind of hate propaganda, as well as incitements against particular individuals (such as Rushdie) by those (such as Khomeini) who are likely to be heeded by fanatics.

With that in mind, I see some value in the reasoning of the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott. The court is trying to draw a line, and it seems to want to ban extreme hate propaganda, while not bannng something lesser that might involve denigration and mockery of individuals or groups. However unpleasant and unjustifiable the latter might be (and it is certainly the sort of thing that merits criticism in many cases) it should not be the role of the state to ban it. In itself, that sounds reasonable, and it’s a distinction that I have toyed with in the past – some kind of law that would capture the worst kinds of hate propaganda but not much else.

However, if you go to the link and look right at the end you’ll see examples of the sort of speech that the court was prepared to suppress – there were two crazy, deeply offensive pieces of anti-gay propaganda, written from a hardline Christian perspective. It’s obnoxious stuff, as I said in the previous post, but I don’t think it is the sort of material that ought to be banned. While some of it may approach the line, I don’t think, overall, that it even falls into a grey area around that line.

Certainly there is contempt in, for example, the references to “sodomites”, and it may even amount to hatred and verge on dehumanisation. Still, it is a long way from the kinds of extreme speech that are likely to lead to violence, such as the Rushdie fatwā or the Rwanda incitements. Do read the material for yourself.

I think that the court has drawn the line in the wrong place. Fanatical anti-gay campaigners such as Mr Whatcott are unpleasant people, but I think overall that they should be allowed to sound off in the way that he did in his flyers. There is some incitement to discrimination, but mainly, as far as I can see, in the form of changing the law to discriminate against gays – and I think that people should be allowed to propose all sorts of terrible laws (though it’s good to have constitutions and judges as impediments to them actually being enacted, even with electoral support). In all, people should not be prevented by law from expressing even these sorts of extreme, irrational, and ugly views, though we have every reason to respond by calling their views extreme, irrational, and ugly.

  • Charles Sullivan

    Canadian Multiculturalism seems rather juxtaposed to French Laïcité. Just an observation.

  • RussellBlackford

    I’m not sure what you mean by “juxtaposed to” here. Are you saying they’re similiar or that they’re different. Sorry to be thick!

  • Vince

    There is no ‘Murica Freedom of Speech here in Canada. Section 2 of our Bill of Rights grants and protects quite a lot of freedoms, but not in absolutes.

    Also, Canada has no states, only provinces and territories. Saskatchewan is a province.

  • Charles Sullivan

    I guess what I’m trying to say is that these two approaches seem very different.

  • RussellBlackford

    Vince, I’m scratching my head a little about this. I’m not sure why you’re telling us that Canada has “provinces” not “states”, since I for one am very familiar with that and nothing in the post suggests otherwise. I’m also very familiar with the Canadian Charter of Rights and Freedoms (not “Bill of Rights”) and the jurisprudence associated with it. (I did actually study quite a lot of comparative constitutional law when I was doing my LLB at the University of Melbourne, here in Australia, and it’s an interest that I’ve maintained.)

    It’s not a big deal, but I’m just not seeing what point you’re making here. Even the US Constitution has not been interpreted in absolute terms – although it’s true that hate speech laws don’t tend to survive constitutional scrutiny in the US.

  • RussellBlackford

    Is it because I used the expression “the role of the state”? In this context, “the state” means something like “the organised institutions of political power” or simply “the government” (but “the apparatus of government”, not “the government of the day”).

  • Charles Sullivan

    You might say the two ideas span a liberal political spectrum.