I’m with Rickjay. The notion of defining unwanted expression as “not speech” and then declaring total freedom of speech strikes this benighted Canuck as remarkably Orwellian.
Why can’t “hate speech” simply be defined as “not speech”, just like obscenity and incitement to violence (of which it is arguably a subset?).
Surely it is better to call a spade a spade, and state that there are restrictions on freedom of speech, rather than going through this “not speech” circumlocution?
Or is there something I’m missing here - some hidden benefit to doing things this way I don’t understand?
It isn’t “not speech”, it’s “not *First-Amendment-protected * speech”. Obviously it’s speech of a kind. The Constitutional protection is pretty broad by world standards, covering essentially every political statement, but it’s not absolute.
Funny, I don’t see any exceptions in the text of that provision creating exceptions for safety, or national security, or obscenity, or burning crosses on private property - but the Supreme Court of the United States has upheld laws restricting all of these items. The Court says instead that they’re not examples of speech that are worthy of First Amendment protection. Well, that’s very clearly a policy decision by the Court, notwithstanding the absolute language of the First Amendment.
The Canadian approach is to cast the definition of “expression” very broadly indeed. Then, if a government passes a law that restricts expression, it has to justify the restriction as a reasonable limit. As RickJay has commented, the net result is much the same. I happen to think the Canadian approach is more transparent - the policy debate is front and centre in the section 1 arguments, rather than hidden away in a “well, but it’s not protected speech” approach.
The word “speech” in the First Amendment is interpreted, with the help of its context, to refer to *political * speech, not *all * speech - hence the acceptable of statutory restrictions that support public needs. Political speech is absolutely protected and the definition of “political” is broad. The First Amendment does foster a general attitude that *all * speech is free, with exceptions held to the bare minimum, but that gets us to the same place except with a little more belligerence about it.
I do agree that transparency is good, but not that the decisionmaking in this areais all that hidden here as it is. Court decisions affecting it are pretty well reported.
The point is, speech in the US isn’t totally free - there are, as you say, a number of exceptions.
In Canada as well, speech isn’t totally free - there are a number of exceptions.
Some posters above have been arguing that there is a basic, fundamental difference in the approach to speech in the two countries - and that the Canadian approach is, somehow, more dangerous to freedom than the US approach.
So far, it seems to have been established that while the two systems differ in the way they operate, the end results (a presumption of freedom, with exceptions) are more or less the same.
What I would be interested in is any actual evidence or argument as to why speech in the US is inherently “more free” than speech in Canada; or, if this is not in fact the case, why people evidently have the notion that it is.
Sam, The pamphlet is inciting racial hatred. there should be no place in socisty for those who wish incite hatred against innocent people. Hate Speech laws are a way of making people accountable for the disenimation of ideals that encourage the hatred of people based on race, colour, creed sexuality or nationality.
That’s sort of a non-sequitur argument, though; you’re saying it’s bad, so it should be banned, but nobody here is arguing it’s NOT bad. You have to show why this particular bad thing should be illegal. Most things that are bad are legal.
Sam’s point is not that hate speech is okay; Sam isn’t a racist. His point is that even spreading vile ideas, ideas he despises, should still be protected, and he has a very good point indeed. The restriction of ideas and expression tends to cause more harm than good. Look at Hamish’s points about the infamous Little Sisters case, which was a disgraceful use of government power to suppress ideas. You may think “well, there’s a difference between hate speech and gay sex” but some people think they’re equally bad, so the precedent of banning One Evil Thing can be used to ban the other. If you ban “Muslims are evil” today, tomorrow perhaps you’re banning “Americans are violent” - that’s what the complaint against Sunera Thobani was based on, btw - and the day after that you ban “Aboriginals have many social problems” because someone decides it makes them sound bad.
The law, as I see it, has to be careful as to what constitutes inciting hatred. If you were to say “Muslims are a violent, savage people” I would argue that that should not be illegal to say. It’s a filthy lie, but I don’t want the government judging everything for what is and isn’t true - the government is not, historically, a terrific judge of truth. (Step up, Mr. Gagliano!)
On the other hand, if you were to say “Muslims are a violent, savage people, and I call upon all decent Canadians to force them the hell out of Canada!” that would be something that should be examined by the police to see how that message was delivered, because it may constitute really INCITING people. Inciting people to think a certain way should never be illegal. Inciting people to ACT a certain way can certainly be illegal.
Now, having said all that, I have to stress that I am a white, straight, blue-eyed, native-born Canadian male with no disabilities. I’m not even short, the one basis upon which it’s still okay to discriminate against men in the workplace. Basically, I’m the privileged group in every conceivable way. So quite frankly, it’s easy for me to say no speech should be banned purely for an idea. If I was a Jew seeing people paint swastikas on my home or my temple, or a gay man who had been subjected to the most horrific sorts of verbal abuse all my life, it is quite possible I would see things differently. Never having been the subject of any significant amount of hate speech, I don’t really know how much it hurts.
Furthermore, as with all things, the law has to be proportional to the needs of society to protect itself. Canada is a country where hate speech is generally regarded as being a most odious and despicable act anyway. Current trends in public opinion suggest there’s little chance that hate will catch a welcome audience here. We are not plagued with ethnic violence or religious warfare. If we were a country more besotten by racial or ethnic hatred, where hate speech was regularly used as a political means of inciting resentment and violence - like Serbia or Malaysia or any number of places - it is entirely possible we would need to control things more. A Constitution is not a suicide pact, and a society cannot be expected to preserve a specific freedom to the point that the society self-destructs.