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November-December 2009

Strengthen democracy and fight bigotry head-on — Legalize Hate Speech

Laura KusistoWebsite

Legalize Hate Speech

The fight for free speech is not the work of angels. Academics love Evelyn Hall’s famous saying, “I disapprove of what you say, but I will defend to the death your right to say it.” In the age of promiscuous online speech, the sentiment of two university protestors seems more apt: “Free speech for all. Even douchebags.”

Marc Lemire, the cherubic-faced webmaster of white supremacist Freedomsite, is the latest unpalatable hero in the fight to fix Canada’s hate speech laws. On September 2, the Canadian Human Rights Commission vice-chairperson, Athanasios Hadjis, acquitted Lemire of hate speech charges for comments on the site accusing gays of conspiring to spread AIDS. Hadjis also declared the Section 13 hate speech provisions of Canada’s Human Rights Act unconstitutional. The decision is not legally binding. But it should be.

In addition to Canada’s rarely applied criminal laws against hate speech, human-rights commissions have had the authority to prosecute hate speech since 1977. This was expanded to include internet-based hate in 2001. The tribunal has a staggeringly low burden of proof compared to most legal proceedings; for instance, it’s easier to prosecute someone for hate speech than it is for libel. And until Lemire’s case, no one had ever been acquitted of hate speech by the CHRC, a record that would be scandalous for any other court. It puts Canada at odds with the hate speech laws of most other nations. It also puts us at odds with our own values.

We protect religion and equality because we recognize that these freedoms make individuals’ lives better. But we protect expression because unfettered dissent is the only way to protect democracy. When a government official sits across from conservative blogger Ezra Levant in a 25-square-foot conference room and asks him to explain his decision to publish the infamous Danish Mohammed cartoons, she is asking a single citizen to justify his political beliefs before the power of the state. Levant may be a blowhard, but that scenario should give everyone—left, right, whatever—serious pause.

The stated reason for upholding hate speech laws is that they protect minorities from greater harm. Or, as Bernie Farber, CEO of the Canadian Jewish Congress, ominously puts it:, “Racist war, from the ethnic cleansing in Cambodia, to the Balkans, to Darfur, to the Holocaust, did not start in a vacuum. Hateful words do have an effect.” We need a better justification than comparing ourselves to far-flung genocidal regimes. In Canada, we already prosecute rare hate-based assaults, murder, and yes, genocide. Hate speech laws punish people for creating the mere potential for violence, even though violence rarely materializes.

Even if hate speech rarely leads to violence, it is true that it demoralizes minorities and threatens tolerance. After anti-Islamic comments by Levant and Maclean’s columnist Mark Steyn made headlines, a poll found that 45 percent of Canadians believe Islam promotes hatred and violence. The CHRC is right to worry about this kind of view taking hold. But trying to ban speech, especially on the internet, only gives it wings. When Levant posted the videos of his CHRC hearings to YouTube they received over 500,000 hits, and clips were featured on numerous mainstream media programs.

The (re)legalization of hate speech would be difficult and unpalatable. But we don’t have to approve of what the douchebags say—we just have to let them say it.

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