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How the Conflicting Rights of the Freedom of Speech

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“Censorship is telling a man he can’t have a steak just because a baby can’t chew it.”

~ Mark Twain

Introduction

One of the ostensibly foundational principles of liberal democracy is the freedom of speech, taking the form not only the ability to speak one’s mind, but to be able to speak one’s mind in nearly any format and through nearly any medium. Both the United States Constitution and the Canadian Charter explicitly guarantee their citizens the right to the freedom of speech as described above. The fact that both countries have this particular freedom as a foundational aspect of their democratic system shows that both countries, in turn, share a certain amount of values related to personal liberties and freedoms. However, recent years have seen a turn in the way that the freedom of speech is treated in Canada when compared to the United States, particularly as it relates to what many call hate speech. Recent cases like Bill Whatcott, who has very publically discriminated against homosexuals, or Ezra Levant, who has been sued for libel twice due to his depictions of Muslims, have raised a very important question in regards to the freedom of speech in Canada: how does hate speech fall into this picture of personal freedom, and when should it be limited?

Clearly, this is a very large question that is difficult to address without a more detailed look into the issues and the relevant literature. This discussion paper examines this overarching question in a more specific way, asking how the cases described above express the conflict of rights between statutory human rights protections and the freedom of expression. In order to address this more specific question, the paper compares both the legislative history and case studies of Canada with the way that the debate between freedom of expression and hate speech is dealt with in the United States. As noted above, the two countries share a great deal when it comes to decisions regarding rights and freedoms, but are apparently beginning to differ on this front. This is the main reason that the two countries make for an excellent comparative study: they share a similar history, but have more recently taken different paths when faced with varying realities of the way speech is expressed.

With this comparison in mind, the discussion paper makes the following argument: the issues of hate speech and limitations of the freedom of speech in Canada largely step from the Supreme Court of Canada’s failure to lay down clear rules for addressing the conflicting rights. This has resulted in legitimate free expression cases being prosecuted as hate speech cases, which has ultimately both devalued the meaning of the freedom of speech in Canada and expanded the meaning of hate speech to the point of conflict. To support this statement, the paper first examines several case studies in free speech in Canada, and then turns to the relevant academic research regarding freedom of speech versus hate speech in both Canada and the United States. While the topic at hand is too expansive for this paper to be an exhaustive view, it is the combination of these two types of sources that forms the backbone of the subsequent discussion.

Relevant Case Studies

The debate regarding the freedom of speech and hate speech in Canada means that here are dozens of relevant case studies that provide insight into the subsequent discussion. However, there are three specific case studies that are particularly insightful for comparing freedom of speech in Canada with freedom of speech in the United States. Two are cases of individuals engaging in what is now known as hate speech in Canada, while the third is a case of legislation reformation in light of the debate over the past couple of decades: Ezra Levant, Bill Whatcott, and the repeal of Section 13 of the Canadian Human Rights Act. Each of these are looked at in turn below.

First and foremost, Ezra Levant provides a valuable case study in the debate between the freedom of speech and what constitutes hate speech in a liberal democracy because his case would likely be treated very differently in the United States than it has in Canada. As the CBC states, Levant is a “self-proclaimed troublemaker”, and is “passionate and empowering in his discussion of freedom of speech in Canada.”[1] The news source goes on to state that the individual came to the national stage because Levant “felt censored by the government…after being prosecuted by the Alberta Human Rights Commission for publishing editorial cartoons depicting the prophet Mohammed in the Western Standard magazine.”[2] Levant’s commitment to the freedom of expression has extended to his Zionism, which many (judges included) see as borderline racist and hateful. Most recently, Levant was ordered to pay $80,000 in personal damages to a Muslim law student that he called an “illiberal Islamic fascist” who was determined to destroy Canada’s freedom of speech.[3]

The case was settled in 2014, the year after Section 13 of the Canadian Human Rights Act was repealed, and represents an important development in the broader conflict regarding the freedom of expression versus hate speech in Canada. The judge in the case deemed the words that Levant spoke to be “unfair, false, and extremely serious” which were “motivated by ill will” and “showed a reckless disregard for the truth.”[4] However, to Mr. Levant, the case was not so much about libel or the truthfulness of the statements, and more about the freedom of expression in the country overall. In response to the ruling, Levant stated that “This is a shocking case of libel chill that should concern any Canadian who is worried about radical Islam, and the right to call out anti-Semitism in the public square,” concluding that the ruling amounts to a “national gag order.”[5] Moreover, Levant highlights the near impossibility of navigating Canada’s judicial system in relation to human rights and the freedom of speech. In a National Post op-ed, he explained;

The CHRC already has a 100% conviction rate for censorship prosecutions-no one in 32 years has ever beat the rap. That’s not hard to believe when you learn that truth, fair comment and honest belief are not legal defences in human rights hearings-the commissions operate more like kangaroo courts than real courts that way.

6 Also, he went on to explain that, “no one had ever beaten a hate speech accusation…at the Canadian Human Rights Commission”.7 Finally, the same principles Levant highlights have been relayed in a National Post editorial as well; “The CHRC, too, has a frighteningly undemocratic 100% conviction rate on hate speech cases”.

8 It becomes very clear that Levant was attempting to make extreme statement regarding the manner in which the Canada judicial system handles cases related to freedom of speech. Furthermore, additional and relevant news postings have also commented on the rather harsh standards Canada imposes on speech.

In order to provide additional background and enhance understanding, the Canadian Human Rights Commission operates based on the principles relayed in the Canadian Human Rights Act (CHRA). Conclusively speaking;

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that

6 Ezra Levant, “Appetite for Censorship” National Post (16 June 2009), online: National Post <http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/06/16/ezra-levant-appetite-for-censorship.aspx>.

7 Ibid.

8 Ibid.

They are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

9 It becomes obvious that this commission and this act together are very closely related to the notion of freedom of expression. Freedom of expression has the potential to discriminate, offend, and subdue those who possess minority traits. At what point is this unacceptable and no longer protected by the laws the shield controversial speech? There certainly exist situations where controversial speech is acceptable and when it is not. At what point does a strong opinion transcend into an event of discrimination? Can words be inherently destructive and damaging, or must there exist some resulting consequence of these spoken words? International guidelines have relayed a skeleton of regulations for the universal right to freedom of expression, and provides general guidelines for addressing these questions. Each nation has interpreted these guidelines differently, and applied them as appropriate to their individual needs. However, it also becomes obvious that Canada has generally been very inconsistent in their beliefs on these matters.

In contrast, the United States has proven to be more liberal in the area of free speech, and it becomes clear that it would respond differently to Levant’s remarks. In order to understand whether or not the United States would have responded differently to the notion of freedom of

9 “Canadian Human Rights Act.” Justice Laws Website (November 1 2014), online: < http://laws-lois.justice.gc.ca/eng/acts/h-6/page-1.html#h-1.>

Expression in the Levant case, as well as understand how widely the nations differ in their approaches to protecting speech, it is important to relay background information surrounding the United States and various freedom of expression issues. Firstly, the United States deals with the issue of hate speech in an entirely different manner. It has been noted that, “The constitutional treatment of these problems, moreover, has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary from one setting to the next”.

10 As seen here, it can already be established that the United States deals with issues surrounding hate speech on a case-by-case basis, and as previously discussed, Levant and many relevant news sources criticize the Canada judicial system for being rather categorical and for not budging in their determined hate speech criteria. Moreover, Levant points out that Canada has not budged in over 32 years. It can be seen that the United States is far more diverse in their opinions on this manner. More specifically, it has been noted that, “Unlike many other states, the U.S. courts do give a higher weight to speech than to the counterbalancing interests set out in Article 19, although perhaps not in all contexts”.

11 In this case, Article 19 refers to the international institutions of regulations surrounding freedoms of expression and opinion. Nonetheless, it is demonstrated here that the United States is more lenient in First Amendment cases than many other countries. Canada is perhaps a fine example of a nation that adheres more strictly to principles of nation protection; and thus, is more willing to compromise individual rights to free speech. On the other hand, the United States is a fine example of a nation who is far more concerned with preserving the people’s right to speak. It is very likely that in this case, the

10 Kevin Boyle, “Hate Speech – The United States Versus the Rest of the World?,” Law Journal Library 2001,.

11 Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis,” SSRN Electronic Journal, 2003, , doi:10.2139/ssrn.265939.

United States would have responded very different to Levant’s hate speech.

To some, United States case law regarding the First Amendment is very complex and rather sporadic. However, there do exist specific stipulations for what constitutes a violation of freedom of speech, and there do exist cases where the United States opted to side with the revocation of speech instead of its protection. In 1942, general guidelines for what is permitted under the First Amendment were outline. It can be seen in the ruling of Chaplinsky v. New Hampshire that;

“There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace”.

12 A few things are explained in this ruling. First, the case of Chaplinksy v. New Hampshire solidifies the notion that the United States has guidelines and principles regarding the First Amendment that differ from many international countries. Furthermore, it is clarified precisely what forms of speech the nation would not permit. If speech itself inflicts injury, incites an immediate breach of the peace, or is obscene, it is not protected. However, this being said, there are subcategories under each of these main categories for what is permitted. There are stricter definitions of what actually constitutes lewd speech, and there are limits on what is considered “fighting” words. Moreover, in order to clarify the aforementioned guidelines, it was ruled in Brandenburg v. Ohio that;

12 “Chaplinsky V. New Hampshire,” Legal Information Institute, March 09, 1942, accessed December 6, 2016,

The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.

13 In other words, in the United States, many different forms of seemingly dangerous speech are permitted under the Constitution. Individuals are allowed to share their opinions, so long as they do not intend to, nor do they effectively incite other individuals to act recklessly or violate laws. In this particular case regarding Levant, it is very likely, based on United States precedence, that the nation would have permitted Levant’s speech and protected his right to freedom of expression, for Levant was simply sharing his opinion, and did not intend to nor successfully incite a riot; albeit his sharing was done in an aggressive manner. These things considered, further analysis and research is necessary in order to definitively conclude how the United States Supreme Court would have handled this Canadian hate speech case.

Whether one agrees with Levant’s statements or not, it is clear that the court’s actions in siding with the plaintiff in this case represents a radical shift in the way that hate speech is treated in Canada, not to mention the way that freedom of expression is respected. The development is also seen in the related repeal of Section 13 of the Canadian Human Rights act, as discussed below.

The second case study that bears insight into the debate of freedom of expression within Canada is the case of Bill Whatcott, who has also been the recipient of multiple complaints and

13“Brandenburg V. Ohio,” Oyez, accessed December 6, 2016, https://www.oyez.org/cases/1968/492.

Lawsuits due to purported hate speech. The case also took place around the time that the debate surrounding the freedom of speech and hate speech was reaching its height in Canada, and was resolved shortly before Section 13 of the Canadian Human Rights Act was repealed. While not directly responsible for this, Whatcott’s case certainly raised the national awareness of the issue and defined the issue in public opinion. However, this case was just in the past few years and is far from the first court case that has dealt with free speech versus hate speech. There are two cases from the previous decade that help to contextualize the court decision in Whatcott’s cases. First, Canada (Human Rights Commission) v. Taylor was decided in 1990, and was decided after the new Charter was in effect.

14 The case dealt with John Ross Taylor, an individual who had propagated telephone messages that denigrated Jews in 1979.

15 The prosecution argued that this form of hate message violated the section of the Charter that explicitly require equality of women and other groups. The court sided with the prosecution and upheld the conviction, essentially ruling that there were limitations to free speech, dependent on the interpretation of other parts of the Charter and the Human Rights Act. This was the first major Canadian Supreme Court decision that limited free speech after the Charter came into effect and defined what should be considered hate speech in a legal context – it is therefore an important predecessor for Whatcott’s case. The second case relevant to contextualizing the more recent Supreme Court decision is R v. James Keegstra, which was decided six years after Taylor’s case.

16 In this case, Keegstra was a public school teacher who had allegedly been teaching anti-Semitism in his lessons for the better part of fourteen years. Keegstra was officially charged in 1984, and the Supreme Court upheld his conviction more than a decade later, reaching a similar conclusion as the case below. Essentially, the court ruled that the criminal code against “public incitement of hatred” infringed on the Charter-given right to free speech, but that that infringement is justified in the case of hate speech.

17 This echoes the more recent court decision, and challenges the repeal of Section 13 of the Human Rights Act, as discussed below.

The facts of Whatcott’s case are as follows: in the early 2000s, Whatcott distributed flyers in two Canadian school districts calling to “Keep Homosexuality out of Saskatoon’s Public Schools” and stating that there are “Sodomites in our Public Schools.”

18 The flyers contained detailed descriptions of homosexual acts and said that there was a danger of men seeking boys.

19 The flyers received the negative attention of many in the school district, and four individuals lodged official complains with the Human Rights Commission, which in turn appointed an official tribunal to determine the constitutionality of the flyers and their distribution.

20 The case bounced around for over a decade, with different courts deciding differently in regards to the constitutionality of Whatcott’s actions. Finally, the Supreme Court passed down its decision on the case in 2013. To many, this decision provided little clarity on the issue of freedom of speech versus hate speech, since the court found that two of the flyers distributed by Whatcott constituted hate speech, while the other two did not.

21 Furthermore, the court made two crucial rulings: first, that “hatred in hate speech prohibitions must be objectively interpreted to determine whether a reasonable person would view the expression as exposing a vulnerable group to discrimination,” and second, that the Human Rights Code “violates both freedom of expression and religion, but that both limitations were justified under” the Canadian Charter.

22 This is the ‘conflict of rights’ mentioned above, and this case is supposed to have been a clarifying point on that debate.

As mentioned above, this decision was viewed as shaky at best by many commentators: “The Supreme Court has drawn a line between free speech and hate speech, but it did so with a slightly shaky hand.”

23 This shakiness is seen in the fact that the court decision simultaneously maintains the part of the Human Rights Code that “prohibits expression that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground,” while also narrowing both the definition and application of what “hatred” means in relation to expression and speech.

24 In other words, the court decision seems to take the side of those subject to hate speech, but also lukewarmly defends the right to free expression. This is clarified by one of their concluding remarks that “The protection of vulnerable groups from the harmful effect emanating from the speech is of such importance as to justify the minimal infringement of expression.”

25 In this way, instead of removing legal bodies from censoring free speech altogether, the court upheld the government’s duty to protect individuals and groups from potentially hateful speech. This was not necessarily a popular decision: “Their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value.”

26 The implications of the case will be further discussed below.

Continuing, in order to better understand the basic meanings of this ruling, previous Canadian rulings regarding freedom of expression will be briefly described. First, in 2009, Athanasios D. Hadjis held that the respondent’s right to freedom of thought, belief, opinion and expression should not be infringed by s. 13(1).

27 Accordingly, the adjudicator did not penalize the respondent for his controversial postings to the Internet.

28 In other words, this ruling lays out a basic foundation of what can be understood about freedom of expression in Canada. It is unacceptable to infringe upon individuals’ rights to freedom of speech, and in this particular case, certain online controversial remarks were allowed. In essence, there exist certain protections to freedom of speech in Canada, and this aligns with universal standards and regulations for free speech. This said, there have been many inconsistencies in Canada regarding speech, especially the online controversial form.

Furthermore, the decision to protect potential victims from potentially harmful speech, as like in the Whatcott case; and thus, sacrifice individual’s rights to freedom of expression in Canada did not stand alone. There existed other cases where individuals were deemed in violation of certain terms of Canada’s freedom of expression clauses. For instance, in 2009, it was held in Warman v. Northern Alliance that the respondent’s website was in violation of s. 13(1) because the website carried controversial remarks about Roma, Jews, Muslims, homosexuals, blacks, Arabs, and others.

The adjudicator made an order pursuant to s. 54(1)(a) to ensure that the impugned website, which is defunct, remained inactive [insert citation 9]. General ruling throughout the world are rather ambiguous on what it means to offer speech that is unacceptable either global or national standards. This case is no exception. The explanation for the respondent’s prosecution in this case is that they offered controversial remarks regarding minorities. Furthermore, popular opinion surrounding this case was also very controversial as many voices exclaimed that this case presented to opportunity to further establish rules that protect freedom of expression in Canada.

Another pertinent discussion in this analysis is how much the United States differs from Canada in such manners. Firstly, it can be established that the United States absolutely recognizes online speech as being paralleled with regular speech; and thus, recognizes that online speech is also to be protected and dealt with almost identically to regular speech in relation to the First Amendment. It was first ruled in 1997 in the case Reno v. ACLU that the Internet is entitled to the highest level of First Amendment protection, akin to the print medium.

29 This being said, it is still not entirely clear what types of speech are allowed on the internet. In general, the United States has been rather light on the prohibition of certain line speech. It does, indeed, prohibit certain forms of speech, but these forms must satisfy ostensible extreme conditions. Starting from a basic standpoint, it can be concluded that individuals are not allowed the right to speech that falls under the category of “truth threats”. The definition of true threats was outlined in the 2003 case, Virginia v. Black, where an individual threatened “I am going to kill you” to another individual via online communication. It was held that; “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit

29 “Reno V. ACLU,” Oyez, (n.d.), online: <https://www.oyez.org/cases/1996/96-511.>

An act of unlawful violence to a particular individual or group of individuals”.

30 In other words, individuals are not permitted to express their desires, or future actions, to inflict injury to another individual via online communication. This sort of ruling also exists for printed speech. In addition, it was further held in Virginia v. Black that;

The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect (s) individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.

31 In other words, if the speech provided can be reasonably interpreted as a circumstance where a victim might genuinely be afraid or fearful for their security, actual violence must not occur in order for the speech to be unacceptable. Furthermore, this sort of prohibition on threats prevents future opportunities for the proposed actions to actually occur. This ruling demonstrates that despite the United States’ reputation for generally favoring the freedom of speech more than the protection of potential victims from potentially harmful speech, the nation does provide guidelines for what is permitted and what is not.

Although the aforementioned cases and discussion revolve around online cases, the main principles can be extracted and applied as a lens to the Whatcott case present in Canada. The speech in question in this particular case was presented on a flier. Just as with online speech, intent can be very subjective and more difficult to discern, as the speaker is not present at the time of the speech; and thus, cannot aid in real interpretation. Warman v. Northern Alliance is especially pertinent because it deals with rather controversial speech, that relates to minorities, and was a Canadian ruling. These rulings can be drawn upon further to better understand Canada’s inconsistent rulings, and the better understand what approach is taken in the nation in relation to freedom of expression issues.

Furthermore, the United States cases demonstrate discrepancies between the two nations in their approaches, and also how another governing body has decided on such issues. In general, it has been noted that while the United States absolutely has standards for the types of speech that is permitted online, it is more lenient in its decisions, and further, would have most likely differed in rulings from Canada in the Whatcott case. Overall, however, further analysis and research is necessary in order to absolutely conclude how the United States might have ruled; there does exist additional precedent that could alter its perception of this case.

The third case relevant to this discussion paper is not a court case at all, but a legislative decision. Not directly a result of the court cases described above, the repeal of Section 13 of Canada’s Human Rights Act nevertheless represents a crucial turning point the debate between what should be valued more in a liberal democracy: the protection of the freedom of speech, or the protection of individuals and groups from hateful speech? The “hate speech section” prohibited any type of speech that incited “hatred of people based on race, religion, sexual orientation and other protected characteristics” in the form of written and electronic communications.

32 One legislator who helped to repeal Section 13 called the section a “flawed piece of legislation” and called Canada’s Human Rights Commission “a quasi-judicial, secretive body that takes away your natural rights as a Canadian.”

33 The legislation clearly draws a line in the sand, a fact that is made even more apparent by the fact that Canadian courts have found Section 13 of the law to be constitutionally valid.

34 In fact, the court ruled that the law was constitutional even after the section was already slated for repeal several months later. In this way, the three cases discussed above make it clear that the law and legal consensus regarding the freedom of expression in Canada – or, put another way, the protection against hate speech – is murky at best.

To provide additional background, the following discussion will revolve details of the CHRA and Section 13. The CHRA is the principal human rights statute in the federal sector. It applies generally to federal government departments and agencies, crown corporations, and federally regulated businesses.

35 Section 13 applies widely to all Canadian citizens. It disallows employers or service providers under federal jurisdiction from discriminating, or carrying out discriminating practices, based on certain prohibited grounds: race, national or ethnic origin, color, religion, age, sex, pregnancy, childbirth, sexual orientation, marital status, family status, physical or mental disability, and pardoned conviction.

36 Put simply, Section 13 encompasses all the necessary, relevant information regarding hate speech and discrimination based on discriminatory factors.

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