The upshot of the Supreme Court of Canada’s ruling upholding hate-promotion findings against an anti-gay pamphleteer in Saskatchewan is that human-rights commissions have the power to police newspapers, magazines and the Internet for material they consider hate-inducing.
This is a dangerously vague standard on which to be limiting free speech. Justice Marshall Rothstein, writing for the court, said the mistake people make in applying hate-speech laws is to “focus on the nature of the ideas expressed, rather than on the likely effects of the expression.” This distinction – between offensive ideas and likely effects – is extremely difficult to apply. Perhaps he means that offensive ideas are okay, but not very offensive ideas.
The court apparently believes that hatred, like pornography, is something you recognize when you see it. It said the test for what induces hatred is an objective one, through a reasonable person’s eyes. But reasonable people may disagree, as a look at the anti-gay pamphlets before the court shows. The Saskatchewan Court of Appeal ruled that the material, though offensive (one pamphlet said “our children will pay the price in disease, death, abuse” for tolerance of homosexuality), was pamphleteer William Whatcott’s attempt to take part in an important public debate, on the teaching of sexuality in the schools, and not something likely to cause hatred. As Mr. Whatcott said, the unsophisticated have a right to speak, too.
None of the protections available in the Criminal Code hate-prohibition apply. Prosecution doesn’t require an attorney-general’s consent; a complaint from the public may be enough. No intent to spread hatred is required.
The Supreme Court’s pruning of Saskatchewan’s Human Rights Code, to remove a section barring material that “ridicules, belittles or otherwise affronts the dignity” helps somewhat. Wonderful satire of the kind written by the late Mordecai Richler could certainly have run afoul. But the powers that some human-rights commissions have are still dangerous, as shown by a 2008 British Columbia hearing involving Mark Steyn’s magazine article “The Future Belongs to Islam.” Though he was “exonerated,” it was a long, costly public battle of the sort that could have a chilling effect on free speech.
The marketplace of ideas, not human-rights commissions, should be where bad ideas, even hateful ones (short of those advocating or inciting violence), are beaten back.