JURIST Guest Columnist Ken E. Norman of the University of Saskatchewan Faculty of Law draws a comparison between the notion of free speech in the United States with the Supreme Court of Canada’s recent ruling upholding a prohibition on hate speech …

The last two days in February witnessed stories of differing bedrock constitutional values north and south of the 49th parallel—the latitudinal border between Canada and the US. First, Secretary of State John Kerry told students in Berlin:

As a country, as a society, we live and breathe the idea of religious freedom and religious tolerance, whatever the religion, and political freedom and political tolerance, whatever the point of view[.] People have sometimes wondered about why our Supreme Court allows one group or another to march in a parade even though it’s the most provocative thing in the world and they carry signs that are an insult to one group or another. The reason is, that’s freedom, freedom of speech. In America you have a right to be stupid, if you want to be.

A day later, the Supreme Court of Canada, speaking with one voice in Saskatchewan v. Whatcott, said otherwise: north of the 49th parallel, “words matter.” Along with sticks and stones, they too can do harm. Such harms are suffered both by targeted vulnerable minorities and society as a whole in the Canadian democratic project with its bedrock values of inclusiveness, diversity and equality. As the court put it:

[P]olitical expression contributes to our democracy by encouraging the exchange of opposing ideas. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond … Section 14 of the Saskatchewan Human Rights Code [PDF] provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression that contributes little to the values underlying freedom of expression[.] [It] represents a choice by the legislature to discourage hate speech and its harmful effects on both the vulnerable group and on society as a whole, in a manner that is conciliatory and remedial. In cases such as the present, the process under the legislation can provide guidance to individuals … so that they can continue expressing their views in a way that avoids falling within the narrow scope of expression captured by the statutory prohibition. The protection of vulnerable groups from the harmful effects emanating from hate speech is of such importance as to justify the minimal infringement of expression that results from the restriction of materials of this kind.

The harms done by contemptuous, hateful speech that vilifies marginalized groups to the level of signaling that they are to be detested are clear. The Court explained:

If a group of people are considered inferior, sub-human, or lawless, it is easier to justify denying the group and its members equal rights or status[.] Hate speech lays the groundwork for later, broad attacks on vulnerable groups. These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide[.]

Whatcott involved homophobic pamphlets (some more virulent than others) distributed by William Whatcott in two cities. Two such diatribes, “Sodomites in our Schools” and “Keep Homosexuality out of Saskatoon’s Public Schools,” were determined to be hate speech in violation of the human rights code by a decision of the Saskatchewan Human Rights Tribunal (finally upheld by the Supreme Court of Canada in Whatcott). Readers of these pamphlets were treated to the following vilifications of homosexuals:

• “[C]hildren … learning how wonderful it is for two men to sodomize each other”;
• “Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children”;
• “[D]egenerated into a filthy session where gay and lesbian teachers used dirty language to describe lesbian sex and sodomy to their teenage audience”;
• “[S]odomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them”;
• “Our children will pay the price in disease, death, abuse … if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong”;
• “Sodomites are 430 times more likely to acquire [AIDS] and 3 times more likely to sexually abuse children!”;
• “Born Gay? No Way! Homosexual sex is about risky and addictive behaviour!”;
• “If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”;
• “The Bible is clear that homosexuality is an abomination”;
• “Sodom and Gomorrah was given over completely to homosexual perversion and as a result destroyed by God’s wrath”; and
• “Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children.”

In sum: “Sodomites in our schools … [meaning as a consequence] … [o]ur children will pay the price in disease, death and abuse!” This is too much, especially—as the US stereotype would have it—in a “nice” country like Canada. So said our Supreme Court. I applaud the court for speaking with one voice on a matter so central to Canada’s foundational constitutional values of inclusiveness, diversity and equality.

Further, Whatcott confirms a test for limiting hate speech that is consistent with Canada’s obligations under the International Covenant on Civil and Political Rights and, in terms of racist hate speech, our commitments to the International Convention to Eliminate All Forms of Racial Discrimination, which was part of the foundation of the Supreme Court’s first hate speech case a generation ago.

Only in Canada you say? Is the concept that “words matter” antithetical to everyone south of the 49th parallel? Well, for our US friends, I note that Stanley Fish famously heralded the case of Her Majesty v. Keegstra [PDF]—the Canadian Supreme Court’s first case curbing hate speech—in “There’s No Such Thing as Free Speech and It’s a Good Thing, Too” [PDF]. From there, I suggest fast forwarding to Jeremy Waldron’s recent book, The Harm in Hate Speech.

Professor Ken E. Norman is member of the Faculty of Law at the University of Saskatchewan in Saskatoon, Saskatchewan, Canada. He is an expert on the Canadian Charter of Rights and Freedoms and serves a member of the Board of Directors of the Canadian Human Rights Reporter. In addition, he served as Chief Commissioner of the Saskatchewan Human Rights Commission from 1978 to 1982.

Suggested citation: Ken Norman, Free Speech: ‘The Right to Be Stupid’ v. ‘Words Matter’, JURIST – Forum, Mar. 19, 2013, http://jurist.org/forum/2013/03/ken-norman-hate-speech.php