With regard to today’s Supreme Court decision upholding Taylor and Canada’s anti-hate speech laws:
Obviously, libertarians will hate the decision, but hopefully they weren’t disappointed. Did anyone really think the Court would strike down the censorship provisions in every human rights act across Canada?
But I see a puzzle. To quote the decision,
the term “hatred” contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.
The Court’s opinion repeatedly emphasizes the objective elements of hate speech. It is reasonable to prohibit such speech because of its objective effects on targeted groups. This is why the Court rejects considerations of speaker’s intent; if an utterance is harmful, the intent of the speaker does not mitigate that harm. Similarly, the truth of an utterance is also irrelevant to its effects. As the Court argues,
Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.
This actually sounds correct, as far as it goes. If what you’re worried about is limiting the effects of speech, then truth and speaker’s intent are both irrelevant. What matters is how the speech will affect other people. With regard to hate speech, those effects can be broken into two categories:
- The effect of the utterance on its target (e.g. gays, the Roma, etc.)
- The effect of the utterance on its audience (e.g. Christians, neo-Nazis, etc.)
The total impact of a hateful utterance will be a combination of these two effects. If Bill Whatcott’s anti-gay flyers lead more people to hate gays, then they are effective in sense (2). If they lead gays to feel badly about themselves, then they are effective in sense (1). Perhaps they did both.
While I haven’t had time to dig into today’s decision, it appears that the Court found hate speech laws a reasonable infringement on freedom of expression because of effects of type (1). That is, the audience’s reaction matters (here I use audience in a broad way, to refer to anyone who hears the hateful utterance. An anti-gay utterance could have a negative effect on gays without any gay person ever hearing it, if the people who do hear respond in the wrong way.)
One of the puzzles this sort of reasoning raises in my view is this. In its decision, the Court made sure to reiterate that hate speech laws do not extend to private speech acts. If Whatcott had invited a person to his house and shown that person his flyer, that would not have been prohibited (and if it had been prohibited, the relevant law would then have been in constitutional peril for being overbroad.)
The question, however, is why not? Why not prohibit any expression of hatred, whether private or not? The fact that a hateful utterance is made privately has, as far as I can tell, little to do with its effects, and any connection between the effects of an utterance and whether it is made in (say) a church or my house would be tentative and contingent.
Clearly, private speech can have the kind of effects that worry the Court. For example, suppose Bill Whatcott were much more intelligent, but just as hateful. Being much more intelligent, suppose he came up with the one true argument proving that gays are terrible people who should be mistreated. I do not believe there is such an argument, but that’s not the point. The point, let us suppose, is that he has such an argument at his disposal — an argument that is sound, and convincing to any reasonable person.
Rather than printing the argument on flyers, he simply invites one person to his house at a time and presents the argument to them. Each person is convinced, and goes on to present the argument to two other people.
If a restriction on speech can be justified purely on the effects of that speech, then Whatcott must be prevented from presenting his argument. This is so even if he is careful to only raise the argument with one person at a time, within the privacy of his home. This is so even if the argument really is sound. I will also add that none of the premises in the argument amount to hate speech themselves; it is only in the aggregate, when the premises are combined, that they have their effect.
(My example requires us to reject Professor Richard Moon’s claim, that hate speech is necessarily false. If Moon is correct, then my scenario cannot arise, because a sound argument cannot be hate speech.)
Thus, the same reasoning the Court used to uphold existing hate speech laws could be used to uphold laws restricting the private presentation of a sound argument. If audience effect is sufficient to restrict speech, then an audience of one person should also be sufficient to trigger a restriction. But that means any speech act can be restricted.
A further puzzle. Consider alternative universe version of Bill Whatcott, who presents an equally sound argument proving that gays should not be harmed, and, indeed, that they should always be treated with respect. However, Whatcott lives in a perverse community, full of unreasonable people, and rather than changing the views of his audience, alternative Whatcott inadvertently inspires them to acts of violence against gays.
Since effect is what matters, and any reasonable person would have foreseen that the people in Whatcott’s community would react the way they did to his argument, his pro-gay argument could also be restricted.
Thus, finally, what I really find puzzling is this. By the Court’s reasoning, two different, equally sound arguments with opposing conclusions, could both be restricted, and could both be restricted simultaneously. I find this very odd. It also makes it difficult for a person who makes arguments for a living to know just what kinds of arguments he can make, and when he can make them.