Chilling Free Speech in the Great White North

Americans aware of journalists Ezra Levant and Mark Steyn are likely also aware that these two were hauled before Canadian "Human Rights Commissions" for supposed speech-crimes.  Levant was pursued because he published the Mohammed cartoons, and Steyn, for, well, casting some Muslims in a bad light.  Both men had their cases dropped, probably because they were articulate, famous, and had relatively deep pockets.  Others who have been charged have not been so lucky.  While such commissions stand as a serious threat to an open public discourse, they are not the only menace "controversial" speech faces in Canada.

Speech in the U.S. is subject to many types of restrictions, but there is no law that criminalizes "hate speech" as such.  Canada has such a law.  It punishes citizens for up to two years in the slammer for "communicating statements, other than in private conversation" that "willfully promote hatred against an identifiable group."  This law, passed in 1970, has not been widely used.  It has been deployed about 15 times since 1993, all but twice against impecunious white Canadians.

However, the Canadian government is currently considering a bill which would amend the hate speech section of the Criminal Code in ways that expand the reach of the Act and give the government greater power over the content of what Canadians may say.  One amendment would add "national origin" to the list of "identifiable groups" which would then read: "any section of the public distinguished by color, race, religion, national or ethnic origin, or sexual orientation."  Another proposal would change the wording of "communicating" from "communicating by telephone, broadcasting or other audible or visible means" to "communicating by any means and includes making available [the objectionable speech]."

The "national origin" amendment simply adds another basis for grievance to an already expansive collection.  For example, referring to Germans or Poles as "Krauts" or "Polaks," or saying that "the French are "surrender monkeys," could earn the person who utters such words a visit from the police.  And don't think that because everyone has a race, sexual orientation, and national or ethnic origin, if not a religion, that the act will apply across the board.  Not a chance.  The Canadian Supreme Court has narrowed the application of an "identifiable group" to cover only those who could be considered "disadvantaged."  For the Jews and Yanks among us, this means Palestinians and Pakistanis, not Israelis or Americans.

The "communicating" amendment is even more expansive and potentially much more dangerous.  "Communicating by telephone, broadcasting, or other audible or visible means" is already expansive enough; adding the phrase "making available" renders the term almost boundless.  According to the Parliament's Legislative Summary of the bill, the term "making available" specifically includes "creating a hyperlink that directs web surfers to a website where hate material is posted."

Readers of this publication are surely aware of hyperlinks.  In fact, I just produced one above.  It shows up blue and sends the interested reader to an internet website for any number of reasons -- in this case to verify the claim just made.  But hyperlinks are used for many purposes, sometimes to direct readers to sites of which the sender approves, other times to sites of which he disapproves, and other times to different sites for different reasons which you are left free to imagine.

What has drawn the ire of those who worry about the threat to free expression contained by the phrase "creating a hyperlink" is that one may be investigated, charged, and even fined and imprisoned for simply linking to (i.e., "making available" to others) a site considered by the authorities to be hate-promoting.  Nor is this provision easily cabined.  It would apply to "any means" of communication.  This would include words (written or spoken) in any manner -- including all print, oral, and internet "social media" (cell phones, iPads, iPhones, iPods, Facebook, Twitter, blogs) and whatever other media are either currently available or about to be introduced.  The fear of some critics is that one could accidentally run afoul of the law by innocently linking to a suspect site.  Other opponents of the legislation argue that the state has no business at all checking into one's linking history.  All of the bill's critics are aghast at the range of the types of media that are included in the legislation.

To what extent are these concerns real?  On balance, the criticisms are certainly justified; however, there are narrowing elements of the law that some critics tend to overlook.  For example, no one can be prosecuted without the permission of the attorney general of the province in question.  This provision is meant to prevent overzealous officers or prosecutors from launching criminal proceedings whenever passion moves them.  Moreover, no one can be convicted if their communication was part of a private conversation.  The rub is to what extent, if any, cell phone, iPad, etc. conversations are considered by the courts to be "private."  At this point in time, the matter is not clear -- so there is good reason to be concerned.

No one can be convicted unless the promotion of hatred was "willful" -- that is, intended.  This last proviso is the kicker.  The person charged must specifically intend to promote hatred.  Though the Court has weakened the proviso in recent years by holding that the test is met by a lesser standard of "willful blindness."

Moreover, for the accused, there are certain defenses available that might offer him an out.  Truth is a defense; however, the defendant has the burden of persuasion.  Also, a person can be exonerated if he can show he's arguing "an opinion on a religious subject or an opinion based on a belief in a religious text."  (The "Koran made me do it" defense.)  In addition, an accused may go free if his statements "were made in good faith, relevant to any subject of public interest," believed to be true on "reasonable" grounds, and intended for "the public benefit."  Finally, someone can walk if he can convince the court that, "in good faith," his intention was to lessen the degree of hatred -- not promote it.  (The "I'm just showing how awful these people are" defense.)

What these provisos suggest is that the situation might not be as grave as some critics argue.  Still, not everyone is articulate, connected, and fortunate enough to be able to contest such broad grounds for accusations of hate speech.  For most Canadians simply to have the police snooping around and investigating their private communications is frightening enough.  Since these amendments would expand the reach of the Act to increase the number of grievers and cover a greater variety of media, if passed, the new law will increase the likelihood that conversations about national groupings will be chilled still further.  People will steer away from controversial statements about nationality issues for fear that they will come under investigation for hate promotion.

All forms of communication would be targeted.  With no clear standard of what is private and what isn't, one's comments about "fags," "gypsies," "Japs," Jews, or Muslims on Twitter, or wherever, however discreet, might stir the interest of the police.  In any case, if the state does not intervene, it won't be because of anything a citizen can control.

Because the proposal targets "hatred," a vague and subjective concept at best, Canada's hate speech law is by that fact alone a serious threat to freedom of expression.  In Canada, saying something remotely hostile to the interests or self-image of an "identifiable group" is already imprudent; to broaden the law's reach, as the proposed amendments surely will, promises to freeze such discussion altogether.