I. Introduction
Very different kinds of expression are joined under the label “hate speech.” This label is applied to expression that is directed at a minority group and intended to be either threatening or insulting to the members of that group. But it is sometimes also applied to expression that is directed to members of the majority or dominant group in the community and meant to persuade them of the undesirable characteristics or activities of minority group members.
Opponents of hate speech regulation believe that the restriction of these different forms of expression rests on a common ground but that this ground is too thin to support a limitation on a fundamental right such as freedom of expression. A burning cross, a racist insult, and Holocaust denial literature convey messages that are personally offensive to the members of particular racial/ethnic/religious groups.1 For critics of regulation, the unacceptability of offense as a basis for restricting expression is obvious. Restriction of expression cannot turn on the audience's subjective reaction to the message communicated. If the audience's experience of offense is sufficient to restrict hate speech, why not other forms of expression? All expression would be vulnerable if restriction was justified whenever the audience disliked the message communicated. A commitment to freedom of expression means that individuals and groups must sometimes put up with expression they find offensive. Offensive expression must be endured because it may convey deep feelings or it may challenge conventional opinion. Individuals must be permitted to express anger or contempt and to employ strong language or make shocking claims that may shake others from their fixed ideas and assumptions.
Supporters of regulation argue that hate speech, in its various forms, is harmful not because it offends but because it silences the members of target groups or interferes with their equality rights. In contrast to offense, inequality and silencing seem to offer a more substantial and objective basis for limiting the fundamental right of free expression; and in the case of silencing, the basis for limitation is itself rooted in freedom of expression values.
If individuals are silenced because of the upset they suffer from racist statements made to them, then the silencing argument for restriction resembles an offense-based argument. Yet the language of silencing and inequality suggests a greater injury, something more than mere offense or irritation, and a different kind of injury. Hateful remarks are so hurtful that they reduce the target group member to speechlessness or shock her/him into silence. The term offense does not capture the depth of the injury caused by hate speech—the emotional upset and the fear and insecurity that target group members may experience. As well, the description of the injury as “offense” ignores the impact of hate speech on the individual's self-esteem and her/his standing in the community.
A particular instance of hate speech takes place against a larger background of racist expression and action. A burning cross is experienced as threatening because it evokes the history of Klan violence against blacks. Similarly, a march with swastikas and SS uniforms is experienced as threatening because it evokes the history of Nazi persecution of Jews. Even if these threats do not seem realistic or immediate to an outside observer, they must be understood from the perspective of a target group member who experiences them as part of a continuing practice of violence against her/his group. The history and context of violence gives rise to genuine and understandable fear and insecurity. Even if the members of the target group know that the particular demonstration does not represent a realistic threat, the act is so closely linked to a larger practice of violent oppression that it is bound to cause significant anxiety and upset. The broader context of racist violence provides a basis for distinguishing unacceptable threats from the “rough and tumble of public debate,” which is sometimes unpleasant and impolite. Even if we accept that the neo-Nazi march manifests some kind of political solidarity among its participants or amounts to a political statement to other members of the community who witness it or hear about it, the march is, in the first instance, a threat against the Jewish residents of the neighborhood. Any political meaning or significance the march may have stems from its threatening character.
This context of racist violence and discrimination may also provide a basis for treating racist insults differently from other insults. Racist insults are different because they are often a prelude to violent behavior, but also because the context of violence, discrimination, and oppression adds significantly to their emotional impact. As well, a racist insult is not an isolated occurrence. The frequent expression of racial insults (coming from different sources) means that they cannot be avoided easily by individual target group members. Each insult is experienced as part of a practice of harassment that gives rise to a general injury of emotional upset, humiliation, and insecurity.
However, the silencing argument involves more than the claim that individual target group members are offended, shocked, or even threatened into silence. Silencing is not just a reaction to a hurtful insult or threat directed at the individual. Silencing occurs because hate speech is so damaging to the self-esteem of minority group members that they come to feel that they have no useful contribution to make to public discussion. Its message of inferiority is internalized by the group's members. Or silencing occurs because hate speech convinces members of the larger community that minority group members have nothing worthwhile to say and that their contributions to public debate should not be taken seriously. Either the individual is disinclined to speak or the audience is disinclined to listen. On this view, hate speech causes silencing and inequality because it affects how the larger community views the members of a target group or how target group members view themselves.
Understood in this way, the silencing/inequality argument might support the restriction of a wide range of racist statements. Silencing and inequality are the consequences not simply of insults and threats but also (and perhaps more significantly) of statements that are meant to persuade members of the larger community of the undesirable characteristics of a particular racial group. Those who hear racist opinions may come to view the target group differently and act toward its members in a discriminatory or violent way. Racist views may be harmful even when expressed calmly, without obvious anger and animosity. Indeed their influence may be greater (their silencing effect or support for inequality) when they are presented as thoughtful contributions to public opinion.
The claim that hate speech should be restricted because it interferes with the individual's right to equality or her/his right to express her/himself and participate in the public exchange of ideas involves a fundamental challenge to existing freedom of expression doctrine. Freedom of expression is said to be valuable because the free exchange of ideas is necessary to the formation of public opinion and to the realization/creation of individual and group identity. The individual's thoughts, feelings, and, more generally, her/his identity take shape in public discourse and private conversation.2 The standard freedom of expression position is that ideas cannot be censored simply because we fear that members of the community may find them persuasive or that an individual's self-understanding or self-esteem may be negatively affected. Expression should be protected even when we think its message is offensive or wrong and might be accepted by others. On this view, then, we should respond to racist claims not with censorship but by offering competing views that make the case for equal respect or by creating more avenues for marginalized groups to express themselves.
In the United States, the leading hate speech cases involve insults and threats against racial/ethnic groups. These forms of hate speech give rise to an identifiable harm to the members of target groups. A single threat or insult can be seen as causing fear or upset to an individual, but the depth of the fear or upset is greater because the statement occurs against a larger background of racist expression and action. The issue for the courts is whether the injury caused by these forms of expression—the fear caused by threats and the harassment of insults—is significant enough to justify a restriction on expression. Racist threats and insults may have some value inasmuch as they express personal feelings or convey some kind of crude political viewpoint.3 However, the limited value of these acts must be weighed against the significant and intended injury to others. The issue in these cases does not need to be framed in the language of silencing. If words are threatening, they are unacceptable whether or not they cause the targeted individual to stop speaking.
In contrast, the principal hate speech cases in Canada involve the regulation of racist claims meant to “persuade” members of the general community (including perhaps members of the target group itself). Hate speech, in this form, damages the group's position in the community or leads to discrimination because it changes or reinforces the way that members of the dominant group think about particular minority groups. These cases, then, involve a more fundamental challenge to freedom of expression. In the remainder of this essay I will consider the ways in which Canadian courts have tried to reconcile the regulation of this form of hate speech with a constitutional commitment to freedom of expression. The difficulty is that racist expression must be understood as a systemic problem if we are to account for its harm and to justify its restriction; yet if it is a systemic problem, then defining a narrow category of expression for restriction will be a problem.
II. The Regulation of Racist Ideas
In Canada a variety of laws prohibit hateful statements that are intended to reinforce or encourage racist attitudes in the public culture. The expression of racist views is restricted by the Canadian Criminal Code and by federal and provincial human rights codes. Both forms of regulation have been challenged in the courts and upheld as justified limits on freedom of expression.
The leading case of R. v. Keegstra 4 considers the constitutionality of the Canadian Criminal Code ban on the willful promotion of hatred: s. 319(2) of the Code provides that “[e]very person who, by communicating statements, other than in private conversation, willfully promotes hatred” against an identifiable group commits an offense, punishable for a term of up to two years.5
James Keegstra was a teacher in the high school in Eckville, Alberta. For almost ten years he taught his students about an all-encompassing conspiracy on the part of Jews to undermine Christianity and control the world. He taught his students that the banking system, the media, Hollywood, the universities, most publishers, most of the churches, and almost all political leaders were agents of this conspiracy. He told his students that Jews were “treacherous,” “subversive,” “power hungry,” and “child killers.” He used the teacher's punishment and reward power to ensure that his students “parroted” his theories and ideas. Students who did not adopt, or acquiesce in, his views did poorly in his class. When Mr. Keegstra's teaching finally became a public issue, he was dismissed from his position. A year later he was charged under s. 319(2) with willfully promoting hatred.
Keegstra challenged the constitutionality of s. 319(2), arguing that it violated his freedom of expression under the Canadian Charter of Rights and Freedoms. 6 Chief Justice Dickson, writing for the majority of the Supreme Court of Canada, accepts that s. 319(2) of the Criminal Code restricts “expression,” so that the provision violates “freedom of expression” under s. 2(b) of the Charter. However, he finds that the restriction is justified under s. 1, the Charter's limitation provision, because it limits “a special category of expression which strays some distance from the spirit of s. 2(b)”; it advances the important goal of preventing the spread of racist ideas; and it advances this goal rationally and with minimal impairment to the freedom. Madame Justice McLachlin in her dissenting judgment agrees that preventing the spread of hateful ideas is an important end but doubts that a criminal prohibition will advance this end effectively and at minimal cost to freedom of expression.
The majority decision upholding the hate promotion provision rests on two important determinations. First, the majority accepts that there is a causal link between the expression of racist views and the spread of hatred in the community. Second, the majority considers that the restriction is narrow in its scope and catches “only the most extreme forms of expression.” There are, however, problems with both these findings. The Court's causal or behavioral approach seems incompatible with a commitment to freedom of expression. As well, even if it makes sense to say that hate speech “causes” harm, it cannot be the case that any particular hateful statement silences the members of a target group (damages their self-esteem so that they withdraw from public discourse) or leads to their unequal treatment (convinces others that they are undeserving of equal respect). If silencing occurs, it must be the consequence of a system of racist expression and action and not of a narrow category of extreme statements.
In the majority's view the state is justified in restricting the expression of the extreme views of hatemongers such as Keegstra because such views may lead (cause) others to hate and to act in a violent or discriminatory way toward the members of a particular group or because these views may be internalized by group members, damaging their self-esteem. The majority accepts that there is a causal link between expression and the spread of hate because it is skeptical about the role of rational agency in the communicative process, at least when racial matters are at issue. According to the majority: “individuals can be persuaded to believe ‘almost anything’ if information and ideas are communicated using the right technique and in the proper circumstances”;7 and so it is important not to “overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.”8
The majority accepts that the hate promotion provision restricts only a narrow category of expression. Merely unpopular or unconventional communications are not caught by the ban. Hatred is an emotion that is “intense and extreme” in character: “To promote hatred is to instill detestation, enmity, ill-will and malevolence in another.”9 Only extreme statements cause hatred. As well, the restriction applies only when an individual “wilfully promotes hatred.” The speaker must intend to create hatred or she/he must recognize that hatred is the likely consequence of her/his expression. This mental element, says the Court, reduces the scope of the targeted expression so that only the most extreme statements are caught by the restriction.
Yet elsewhere in the majority judgment the “wilful promotion” test is described in looser terms. The majority acknowledges that the causal link between a particular act of expression and the spread of hatred in the community is difficult to establish. According to the majority, it is enough that the speaker knows or is aware that her/his expression creates a risk that hatred will be spread or that acts of violence will increase. The hatemonger must intend or foresee “as substantially certain a direct and active stimulation of hatred against an identifiable group.” The loosening of the test, and the emphasis on risk creation and the general character of the expression rather than its actual or provable consequences, suggests some recognition that expression does not cause harm in a simple and mechanical way. The impact of expression is unpredictable, and creates only a risk of harm, because it depends on the thoughts and actions of its audience.10
The Court assumes that extreme views and acts are caused by extreme statements. Expression that is heated and hateful in tone will be caught by the restriction. But once the Court recognizes the problematic character of the causal link between expression and hatred, as it does in its discussion of the “wilful promotion” test, the scope of the restriction becomes difficult to contain. If, as the majority says, it is not necessary to show that the accused's purpose was to foster hatred but only that she/he was aware that hatred would/might be promoted by her/his expression or that her/his expression was of a type that might contribute to a climate of racial hatred, then the restriction may cover more than “extreme” claims.
The Court's focus on the (extreme) hatred or prejudice that lies behind a particular statement makes sense only if we think that individual acts of expression create hatred in the community, in a discrete and measurable way. But if racist expression does cause hatred in the community, something that is difficult to establish, the responsibility must lie with the system of racist expression rather than with individual acts of expression. The spread of hatred cannot be attributed entirely to a narrow category of extremist expression. No one instance of expression causes hatred, but a wide range of racist statements (some extreme and some more temperate and even commonplace) may contribute to racist or hateful attitudes in the community—to the cultural reproduction of racism.
James Keegstra wanted his audience to realize that Jews were dishonest, something he thought was true. He spoke to persuade others of this “truth.” No doubt he could foresee that the result of his expression might be that his audience would become more suspicious of, or more hostile toward, Jews. No doubt he hoped for this result. But any expression that is critical of a minority group might have this result, particularly in a community where racial prejudices are so deeply entrenched. Any critical expression, even that which is calmly and “rationally” expressed, will draw on, and contribute to, racist or hateful attitudes in the community.
III. The Challenge to Freedom of Expression
A commitment to freedom of expression involves protecting the individual's right to express and hear different views. If some individuals are persuaded of certain views and act on them, then we might say that the expression has “caused” the action; but under most accounts of freedom of expression, the state is not justified in restricting expression simply because it causes harm in this sense—through persuasion.
In R. v. Keegstra the Supreme Court of Canada adopts a behavioral or causal approach, treating hate speech as responsible for increases in racist violence and more generally for the spread of hatred, because it is skeptical that the audience will (always) exercise rational judgment when it hears racist claims. Yet faith in human reason underlies most accounts of freedom of expression and cannot simply be cut out and discarded from the analysis. Upon what is our commitment to freedom of expression based, if not on a belief in human reason and its power to recognize truth? What restrictions on expression are not acceptable once we have lost faith in human reason? The Court shows no recognition of the implications of this downplaying of human reason.
If we are unwilling to trust, or give space to, individual judgment and public reason, then the question of censorship will turn simply on whether the expression at issue conveys a good or bad message or whether we think the public acceptance of the message will have good or bad consequences. But this amounts to a rejection of freedom of expression as a political/constitutional principle. A commitment to freedom of expression means protecting expression for reasons more basic than our agreement with its message—for reasons independent of its content. Protection cannot be granted or denied to expression depending on whether its message is objectionable to members of the community.
If we are to address the harm of hate promotion without undermining the constitutional commitment to freedom of expression, we must isolate a category of hateful or extremist expression from ordinary public discourse because of its irrational appeal or because it occurs in circumstances where rational agency is less likely to prevail. If a particular instance or form of expression does not engage the audience or contribute to public reflection and judgment, then it may not deserve constitutional protection. The majority in Keegstra assumes that hate promotion (extremist expression) is manipulative or misleading but never really explains what makes it so or how it is distinguishable from ordinary non-manipulative expression.
The problem of line drawing plays a key role in the argument against the restriction of hate promotion. Indeed, the line-drawing argument often seems to substitute for a more direct claim that the freedom should protect the expression of all viewpoints, no matter how wrong or offensive. Madame Justice McLachlin in her dissenting judgment argues against the criminal restriction of hate promotion not by focusing on its value but rather by pointing out how difficult it is to draw a line separating hate promotion from other forms of expression. She is concerned that the line may be drawn in the wrong place so that valuable expression is restricted. As well, she is concerned about the “chilling effect” of any line that may be drawn. Individuals may be reluctant to publish material, even valuable material that should not, and probably would not, be restricted because they are unwilling to take the risk that it might fall within a criminal prohibition that does not have a clear and uncontested scope. An individual who is critical of the members of a particular group or who engages in research concerning the different characteristics of racial/ethnic groups will think twice about what she/he says and may even decide to remain silent because she/he fears that her/his expression might fall within this vague prohibition.
In support of this concern Madame Justice McLachlin refers to the “track record” of s. 319(2). She notes that in the past the section “has provoked many questionable actions on the part of the authorities.” For example, the novels The Haj11 by Leon Uris and The Satanic Verses 12 by Salman Rushdie were investigated and/or temporarily interfered with under customs restrictions. Following investigation, the authorities concluded that neither of these books fell within the particular restriction. However, for McLachlin J. an action such as the temporary interference with a book by customs officials is not simply an irritation. It illustrates the uncertain application of the restriction and helps to create a climate in which writers have genuine concerns that their work may result in criminal punishment.
The way the line-drawing argument is stated by McLachlin J. it sounds as if expression that has little or no value must be protected to ensure that valuable expression is also protected. James Keegstra's Holocaust denial and Jewish conspiracy expression must be protected if we are to ensure that Leon Uris is not prevented or discouraged from writing The Haj. But if Keegstra's expression is of little or no value and Uris's expression is clearly valuable, then why is it so difficult to draw a line between them? The problem cannot simply be that the judgment of the state (and the courts) is not to be trusted when it comes to drawing lines around the scope of freedom of expression. The definition and limitation of freedom of expression by the courts involves drawing lines. If the line between literature and hate promotion should be avoided, why not all the other lines that give freedom of expression its shape? Why is the line that isolates hate promotion more elusive or more dangerous than the others?13
I suspect that the line-drawing problem is not, as McLachlin J. suggests, that the line between legitimate and illegitimate expression may be drawn in the wrong place by the legislature or the courts, or that, even if the line is drawn in the right place, it will have a chilling effect on legitimate expression. The problem is rather that the distinction between what in her example is assumed to be legitimate expression and what is assumed to be illegitimate expression is not all that clear. What James Keegstra says is in many ways similar to what Leon Uris writes. This is why it is difficult to draw a line between them. This is why the censorship of Keegstra's speech puts the writing of Uris at risk.
There are differences between what Keegstra says and what Uris writes. Keegstra, in contrast to Uris, makes specific racist claims that are extreme and bizarre. But Uris's writing is most certainly not free of the taint of prejudice. Indeed, the writing of Leon Uris represents a powerful vehicle for the transmission and reinforcement of bigoted attitudes. In The Haj, Leon Uris builds ethnic/racial stereotypes into the characters and events of a fast-paced narrative.14
More important than these descriptions of the Arab personality are the actions of the different characters in the story. Arab characters lie, cheat, rape, and attack without cause. The Jewish characters in his book are heroic and honorable, while the Arab characters are cowardly and dishonest. Yet because these are just the attributes of the particular characters in a work of historical fiction, they are not explicit claims about Jews and Arabs that are up for consideration and debate by the readers. The writing of Uris supports and revitalizes ethnic/racial stereotypes not by argument but simply by weaving them into a “realistic” narrative that is read by a large audience.
Is the answer simply to exclude both Uris and Keegstra from freedom of expression's protection? Keegstra makes racist claims that play on the fears and prejudices of some members of the community. Uris's narrative builds on ethnic and religious stereotypes, which may be assimilated by the reader without conscious, or at least careful, consideration. The line-drawing problem, however, is not resolved by redrawing the line in another place. The problem is much deeper than the unclear distinction between what Keegstra says and what Uris writes. McLachlin J. has not simply chosen a bad example with The Haj. Racial and other stereotypes are so deeply entrenched in our culture, our language, and our thinking that it is impossible to isolate clearly the offensive claims of Keegstra and the offensive stereotyping of Uris from ordinary public discourse. A wide range of expression, both extreme and ordinary, conveys racist attitudes and contributes to the spread or reinforcement of racist opinion in the community. This is the real line-drawing problem. It is much deeper than McLachlin J. and the civil libertarian defenders of the constitutional protection of hate propaganda suppose.
It is hardly surprising that civil libertarians emphasize the strategic argument that hate speech must be protected so that truly valuable expression will not be put at risk of censorship. It cannot be easy arguing that hate speech should be protected because it is a valuable part of public discourse. Yet the line-drawing argument is too thin to support the protection of hate speech. If hate speech is itself without value, and is even harmful, then it would be both possible and important to draw a line between it and valuable forms of expression. Ultimately, the protection of hate speech must rest on more than its strategic significance. Protection must be based on a belief that hate speech is itself valuable—that it advances freedom of expression values, even though its message is wrong and offensive.
On this view, racist expression should be protected even though it may (sometimes) contribute to racial hatred or intolerance in the community. It should be protected because it expresses the thoughts and feelings of the speaker and provides information and ideas to an audience, who may decide either to accept or to reject what they hear. Keegstra makes specific claims. His most objectionable and offensive claims involve propositions of a kind that can be reflected upon, debated, and judged. The conventional freedom of expression argument is that these claims— absurd and offensive as they may be—should be responded to and not simply censored out of public discourse.
However, a recognition that line drawing is a problem because racial and other stereotypes are pervasive may provide some justification for the restriction of (extreme) racist expression. The line-drawing argument can be turned on its head once we understand why line drawing is so difficult. Keegstra's hateful expression is difficult to isolate from ordinary public discourse because racist expression and thinking are pervasive. His expression may also be more dangerous because of this pervasiveness.
Keegstra's audience understands and evaluates his claims against this larger background of racist assumptions. Racist claims often play to fears and frustrations (of moral decay or unemployment, etc.), in a context where the space for critical reflection is reduced. These claims draw on the social background of bigotry and racial stereotyping of which Leon Uris's novel The Haj is only a very small part. Against this background, a racist claim may look like an ordinary contribution to public discussion. Indeed, to some members of the community even the absurd claims of Keegstra may seem reasonable or plausible. A general audience may be less critical of racist claims, which provide a channel for fear and resentment and which resonate with widely shared assumptions. Racist claims may resist critical evaluation because they give shape to popular but inchoate assumptions and attitudes. In R. v. Keegstra, Dickson comments that “[t]he alteration of views held by the recipients of hate propaganda may occur subtly, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth.”15 As well, the dominance of racist imagery and messages means that the members of target groups have little space to “negotiate” identity and place in the world.
Nevertheless, restricting hate promotion, whether narrowly or broadly defined, is very different from prohibiting “the yell of fire in a crowded theater,” the classic American example of an exception to freedom of expression protection. The “yell of fire” occurs as an identifiable and discrete deviation from the conditions of ordinary public discourse. The theater audience does not have the time or space to stop and think carefully before acting on the communicated message. The panic that will follow the yell of fire in these circumstances is likely to result in injury. However, the Court in R. v. Keegstra bases its decision not on any exceptional and temporary circumstances that may distort or limit the audience's ability to rationally assess the message conveyed to them, but rather on a general skepticism about human reason—or at least a skepticism about reason when applied to issues of race. This skepticism would seem to put in doubt the protection of any public claim about race.
IV. Extreme and Ordinary Racist Expression
Both dissenting and majority judgments in R. v. Keegstra focus on the distinction between, on the one hand, extremist or racist expression and, on the other hand, legitimate political expression. They differ only on the question of how clearly the line can be drawn between these two categories. The majority judgment of Chief Justice Dickson refers to extremist expression as if the parameters of such a category were obvious. The dissent of Madame Justice McLachlin insists that it is impossible to define such a category in clear terms. But, as I have argued above, the distinction at issue is really between the expression of extreme racist opinions, on the one hand, and the expression of more commonplace racist views, on the other. The distinction in the majority judgment in Keegstra between protected and unprotected expression rests not on the nonracist and unharmful character of the opinion expressed, but on the opinion's fit or consistency with popular thinking. An opinion is extreme if it is far removed from popular thinking and conventional standards of rationality.
The Supreme Court of Canada in R. v. Keegstra interprets the Criminal Code ban on hate promotion so that it extends only to extremist expression. In the Court's view this narrow ban represents a reasonable limit on freedom of expression. However, if the spread of hatred is the consequence of a system of racist expression and action and if the background of racist assumptions makes the rational assessment of racist claims difficult, then it may be difficult to justify this narrow focus on extremist expression. The Court's skepticism about human reason and its concern about the spread of racist ideas might justify restriction of all forms of racist expression, from the extreme claims of Keegstra to the more commonplace racial stereotyping of Uris or popular claims about intelligence and race. Indeed, it may be complained that a partial ban on hate speech, which focuses only on the most extreme or bizarre racist claims and leaves “ordinary” racist expression untouched, suggests that the problem has been dealt with—that what is not regulated is not a concern. Yet less extreme racist claims only seem “ordinary” because they reflect, or resonate with, common opinion. All racist expression, the extreme and the commonplace, takes place in a larger culture of racist attitudes and assumptions and contributes to this larger culture. It is arguable that common forms of racist expression are more harmful because their exposure is greater and their racist message is less apparent. Indeed, it may be that more commonplace forms of racist expression are not restricted simply because their racist character is unrecognized by legislators and judges.
However, another way of looking at the distinction between extreme racist expression, which is restricted, and commonplace racist restriction, which is not, is that it represents a practical compromise between a commitment to freedom of expression, on the one hand, and a sensitivity to the limits of reason and the risks of harm, on the other. While the protection of more commonplace forms of racist expression may rest on a commitment to public debate and discussion of race issues, the restriction of extremist expression may rest on a rejection of the naive faith in the harmlessness of expression and the infallibility of human reason that sometimes seems to underlie freedom of expression doctrine.
There are many reasons for not restricting “ordinary” racist expression. Any attempt to exclude all racial prejudice from public discourse would require extraordinary intervention by the state. Because racism is so commonplace, it would be impossible to establish clear and effective legal standards to identify and punish all forms of racist expression. Public discussion of racial issues is vital, precisely because racist attitudes and assumptions are so pervasive. This discussion would be stifled if the state attempted to ban all racist expression. The community must confront commonly held racist views if it is to rise above them. Racist attitudes are often spread or reinforced without clear consideration or conscious acceptance. A key antiracism strategy is to expose the racist character of commonplace attitudes, to make it more visible and bring it to clearer and, hopefully, more critical consciousness.
However, even if we accept that “ordinary” or commonplace racist claims should be discussed and addressed and not simply censored out of public discourse, a sensitivity to the limits of reason (particularly in the context of racial matters) and to the significant harm caused by racist ideas and attitudes should lead to a rethinking of the standard laissez-faire approach to freedom of expression issues. Instead of assuming that a free market of ideas will lead to a balanced assessment of racial issues, greater effort should be made by the state and community to ensure that racist views are expressed in a context where they will be challenged and where the likelihood of reasonable assessment by the audience is maximized— where the racist character of certain forms of discourse will be exposed and examined. It may be that in certain contexts the expression of racist views should be permitted only when accompanied by a clear and direct response. For example, we might reasonably expect the media not to report claims about racial intelligence without placing such claims in a context that highlights their fundamental flaws or at least sets out a contrary position.
While the protection of “ordinary” racist expression may be necessary, extreme or bizarre racist assertions do not have the same claim to protection. Views are “extreme” precisely because they are removed somewhat from popular opinion. Despite the prevalence of racist expression, it is difficult to imagine that the bizarre views of Keegstra would be taken seriously by anyone who was not already deeply mired in irrational hatred or who was not limited in her/his capacity for reasoned thought or who was not in a subordinate or vulnerable position in relation to the speaker. It is not a coincidence that two of the leading hate speech cases in Canada concern teachers. Keegstra, for example, used his authority as a teacher to limit the opportunity of his students to critically evaluate his views.16
What reason, then, is there to permit the expression of bizarre and hate-filled racist claims? The irrationality of such claims means that they are of little value in public discourse. While most members of the community will dismiss the claims of hatemongers as bizarre and irrational, some individuals, already weighed down by extreme prejudice or susceptible to manipulation, will see in these claims a “plausible” account of their social and economic difficulties. Hate speech offers a focus for their feelings of resentment and frustration. It builds on existing racist attitudes and so leads to more extreme opinions and actions, particularly in times of great insecurity. Its extreme character calls for action against members of the hated group. Any individual who accepted the views presented by Keegstra and other hatemongers would also have to conclude that radical action was necessary.
The restriction of extreme views may also represent community affirmation or support for groups that historically have been the targets of violence and discrimination. While it is impossible for the state to legislate against all forms of racist expression, there may be symbolic value in censoring the expression of extremist claims. Civil libertarians insist that protection of the individual's freedom to express opinions, including racist opinions, should not be seen as support for the views expressed. However, once we recognize that racism is a systemic problem and that racist views are commonly expressed as part of public discourse, then the entire community is implicated in the problem. It is hardly surprising, then, that (some) target group members view the state's failure to ban racist expression as support for, or acquiescence in, the views expressed—or at least as insensitive to the harm caused by the expression of such views. The drawback, as suggested above, is that a partial restriction that focuses on extreme racist expression might be seen to “legitimate” other forms of racist expression that are not covered.
Sensitivity to the limits of reason and the potential harm of racist expression should lead to a downplaying of the line-drawing/chilling-effect argument—at least as an all-purpose argument against the regulation of extreme racist expression. Chilling effect may be raised as a concern about a particular legislative provision that is badly drafted or gives too much discretion to an administrative decision maker, but it should not be put forward as a general argument against any form of hate speech regulation.
In her dissenting judgment in Keegstra, Madame Justice McLachlin expresses concern that the ban on hate promotion, which includes the extreme claims of individuals such as Keegstra, might have the result that “[scientists [would] think twice before researching and publishing results suggesting difference between ethnic or racial groups.”17 But surely people should think twice before making damaging claims about racial groups. If scientists thought twice about researching and publishing such claims, they might think more carefully about their own motives, about the accuracy of their “findings,” and about the harm that can be caused in a society that is only too ready to receive “scientific evidence” of racial difference in intelligence. Chilling effect becomes less a concern once we recognize that what will be chilled most often by a ban on extremist expression is the expression of more commonplace racist views. The scope of the criminal ban on hate promotion may be difficult to define. But it is important to remember that the line is vague (and likely to have a chilling effect) because it seeks to separate extreme racist claims from the more routine expression of racist ideas. The other form of restriction on hate promotion in Canada involves the use of Human Rights Codes that emphasize reconciliation and education but that fall back on punitive measures. It is noticeable that in the racist expression cases, reconciliation has not worked, and the courts have relied on punitive/coercive sanctions—the measures of final resort. In Canada (Canadian Human Rights Commission) v. Taylor 75 D.L.R. (4th) 577 the Supreme Court of Canada upheld a provision of the Canadian Human Rights Code that prohibited communication by telephone of “any matter that is likely to expose a person or persons to hatred or contempt.” A Human Rights Tribunal granted an injunction against a telephone hate line. The injunction was disobeyed, and criminal punishment for contempt was imposed by the Federal Court. It seems clear that a punitive response is almost inevitable as long as the ban focuses on extremist views. The hatemongers against whom complaints are made are unlikely to be brought around through mediation or by education.
NOTES
1. Subsections 319(2) and (7) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, which are discussed below, prohibit the willful promotion of hatred against “any section of the public distinguished by color, race, religion or ethnic origin.”
2. On this view it cannot be an “invasion” of the individual's dignity or identity when others express views about him/her, even though those views affect how she/he is regarded by the general community and how she/he sees her/himself.
3. However, if we think that freedom of expression protects communicative relationships, then we might also think that some level of engagement with the audience is required before expression should be protected. For a discussion of this see R. Moon, “The Supreme Court of Canada on the Structure of Freedom of Expression Adjudication,” 45 Univ. of Toronto L.J. (1995), 419, pp. 424-35.
4. R. v. Keegstra (1990) 3 S.C.R. 697.
5. Section 319(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 provides that:
Every person who, by communicating statements, other than in private conversation, willfully promotes hatred against any 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.
Section 319(3) of the Code provides a number of defences:
No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.
Subsection (7) provides definitions and clarifications of some of the important terms used in the section. In particular, “communicating” is said to include communicating “by telephone, broadcasting or other audible or visible means”; “identifiable group” means any section of the public identified by color, race, religion, or ethnic origin; “public place” includes “any place to which the public have access as of right or by invitation, express or implied”; and finally the term “statements” is broadly defined to include “words spoken or written or recorded electronically or electro-magnetically or otherwise” as well as “gestures, signs or other visible representations.”
6. Section 2 of the Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982 provides that:
(2) Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;:
(c) freedom of peaceful assembly; and:
(d) freedom of association.
Section 1 of the Charter permits the imposition of limits on the protected rights and freedoms:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. R.v.Keegstra, p. 747.
8. R. v. Keegstra, p. 763.
9. R. v. Keegstra, p. 777.
10. R. v. Keegstra, p. 857, Madame Justice McLachlin says that:
it is simply not possible to assess with any precision the effects that expression of a particular message will have on all those who are ultimately exposed to it. The process of'proving’ that listeners were moved to hatred has a fictitious air about it.
11. L. Uris, The Haj (London: Corgi Books, 1984).
12. S. Rushdie, The Satanic Verses (New York: Viking Press, 1988).
13. It may be that many of the lines that give freedom of expression its shape are problematic, including the line between protected informational advertising and unprotected manipulative advertising and the line between unprotected pornography and protected sexual imagery.
14. In The Haj there are a variety of statements about the Arab “personality”— for example: “The short fuse that every Arab carries in his guts had been ignited with consummate ease. Enraged mobs poured into the streets … “ (89). “The Bedouin was thief, assassin and raider and hard labour was immoral” (29). “So before I was nine I had learned the basic canon of Arab life. It was me against my brother; me and my brother against my father; my family against my cousins and the clan; the clan against the tribe; and the tribe against the world” (25).
15. R. v. Keegstra, p. 747.
16. The other hate speech case involving a schoolteacher is Ross v. New Brunswick School District, No. 15 (1996) 1 S.C.R. 825.
17. v. Keegstra, p. 860.