One of the right-wing Canadian blogosphere’s great causes is their opposition to human rights tribunals, mostly because of the hate speech provisions these human rights tribunals sometimes take up. (To hear them complain, you would think human rights tribunals spend the majority of their time censoring people, when in fact most cases heard by these tribunals concern basic workplace equality. Not that they like that either, mind you, but.) Their current hobbyhorses are Mark Steyn (who was found innocent at his Ontario tribunal because hate speech is more than just the simple, dimwitted racism Steyn exudes, but never you mind that apparently in Steyn’s case the system worked – it’s the principle of the thing) and now an Alberta minister named Stephen Boissoin, who wrote a mean letter-to-the-editor about how he hates them fags.
The text of the letter can be found here – I refuse to endorse the schmuck even backhandedly by reproducing it in full, and loath as I am to give Kathy “I Proudly Admit I Am A Bigot” Shaidle traffic, I really couldn’t find anybody less objectionable who was willing to publish it. Which tells you something, really, and the gleeful insouciance with which they republish this dreck tells you something else.
(They’ll claim to be defenders of free speech, but I don’t see ’em republishing, say, excerpts from Catcher In The Rye or Lady Chatterley’s Lover or The Anarchist’s Cookbook or any other famous books frequently banned. Heck, if they want to go at it from a conservative angle, they can always reprint a portion of The Adventures of Huckleberry Finn, frequently the target of misguided liberal censorship. But no, they’re desperate to republish bigoted crap.)
I’ve given hate speech law a lot of thought, precisely because although I applaud its aims, I do have concerns about its practical application. Those who know me know that I generally favour freedom of expression as a rule. I don’t need to go into the reasons why I favour freedom of expression; these should frankly be self-evident to any reasonable reader and if not, go read some Thomas Paine or something.
But as a society, even before we ever considered tabling hate speech laws, we recognized that freedom of expression could be used to harm, and acted appropriately. We don’t recognize threats as speech (despite what some Metafilterites might think about this). Likewise, consider defamation, and our slander and libel laws. As a society, we understand that malicious and deliberate harm to one’s reputation through falsehood is that which should not and cannot be allowed, lest we inappropriately empower those with access to greater voice in our society. (And yes, I recognize that the Internet has managed to even the playing field somewhat in this regard, but it has not created a situation where libel and slander laws are outdated. Rupert Murdoch still has a bigger megaphone than me and can use it for great harm.)
But slander and libel law can only be applied to the defense of individuals. What happens when language is used to slander or libel groups? And before you say “well, isn’t most racism just opinion and therefore not validly applicable to groups,” let me excerpt a piece from Boissoin’s rant.
From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by homosexual and pro-homosexual educators. Our children are being victimized by repugnant and premeditated strategies, aimed at desensitizing and eventually recruiting our young into their camps. Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system; all under the fraudulent guise of equal rights.
Is that just opinion? Let me put it another way.
From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by Chris Sims. Our children are being victimized by Sims’ repugnant and premeditated strategies, aimed at desensitizing and eventually recruiting our young into their camps. Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance by Chris Sims; all under the fraudulent guise of equal rights.
If I said that in seriousness about Sims, he’d be quite able to bring a defamation tort against me. I could assert a fair comment defense, but to do so I would have to prove that the statement is based on proven fact.
Taking this back to Boissoin, there’s a number of claims in just those few sentences that are highly questionable. “Physiologically damaging” likely qualifies as verifiably false. “Psychologically abused” and “brainwashed” toe the line; Boissoin might argue them to be mere invective, but abuse and brainwashing are extreme language that carry specific connotations along with them.
But hate speech law isn’t just about defamatory claims (although they do play a large element). It’s also about eliminationist rhetoric, the attempt to use speech to not only defame a group but also to dehumanize them – which in turn encourages violence against them, because if your opponent is seen as less than human, violent reaction against them becomes easier to justify. Encouragement of violent behaviour is seen – rightly – within our legal systems as invalidly qualifying as “speech” and the protections granted to speech, because despite what Bigot Central might think, hurting people you don’t like has no valid purpose within a just society.
Kathy Shaidle and her ilk have no problem condemning such rhetoric when it’s spouted by fundamentalist Muslim extremists, but apparently Stephen Boissoin is a cause celebre for writing
Come on people, wake up! It’s time to stand together and take whatever steps are necessary to reverse the wickedness that our lethargy has authorized to spawn. Where homosexuality flourishes, all manner of wickedness abounds.
or
It’s time to start taking back what the enemy has taken from you.
Those are direct calls to action, nothing less, and the Shaidle wing will pooh-pooh them by saying that Boissoin hasn’t explicitly said “hey, go kick a fag to death.” This lackspittle defense relies on the belief that all men who would work evil through speech are morons. The implicit call to arms is there, and Boissoin’s choice to not limit action (“whatever steps are necessary”) is quite deliberate.
And that is the crux of hate speech law in Canada – we look to dampen defamatory and inciting rhetoric, recognizing through both history and common sense that some speech is not worth contesting in the court of public opinion, because speech is dangerous – indeed, far more dangerous than any mere weapon. It’s a natural extension of defamation law, a concept which has been with us for centuries. As a society, we choose to recognize that although the freedom of speech is important, and indeed vital to the health of a functional democracy, that absolute freedom of speech by its nature will conflict with other rights, such as liberty or freedom from persecution, which are equally important in Canadian constitutional law.
Now, this doesn’t necessarily mean that human rights tribunals don’t require reform – they do tend to be somewhat patrimonious and they’re built with pre-Internet statute and are frequently outdated in their handling of cases. But that doesn’t mean the job they perform isn’t worth doing; it just means they need to do it better.
EDIT TO ADD: In comments, Joe Helfrich expresses his discomfort with hate crime law, which is a somewhat different kettle of fish than hate speech law. I fully disagree with the concept of hate crime law, which takes ordinary crimes and attempt to divine hateful intent in action to create a more punitive sentence; we have trouble enough in criminal law determining intent (indeed, the search for mens rea is the defining element of most criminal law trials) without going a step further and attempting to prove one’s motive.
That having been said, there’s a longstanding tradition in speech law that end effect is more important than original intent – if I libel you without malicious intent and you get screwed because of it, I’ve still committed libel regardless of me not intending to. Critics of this tradition have suggested it forces people to be more careful about what they say; proponents have suggested it forces people to be more careful about how they say it.
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Are you the same Chris Bird that was accused of distributing oxycotton is Toronto a couple of years ago? I was investigating you on the internet and there is a Chris Bird from Toronto, coincidentally an athlete who was accused of such and even admitted doing so under oath.
Ravi Devgan trafficking trials 2004
Copyright 2004 Toronto Star Newspapers, Ltd.
Rahman described an alleged “scheme” in which Devgan, who pleaded not
guilty to charges of trafficking in a controlled substance and
possession of a controlled substance for the purpose of trafficking,
filled out the prescriptions. A “runner named Christopher Bird used them
to obtain the drugs at various drug stores, and Hutchens co-ordinated
the operation out of a back room of his office,” Rahman said.
Bird testified yesterday that after being recruited in the summer of
2001, he processed up to 10 prescriptions a day from various pharmacies
for payment of $10 per 100-tablet bottle. Bird said he would pick up an
envelope containing the prescription forms from Devgan’s office and take
them to Hutchens, who gave him instructions.
Agreed, Mr. Bird.
I can’t stand the right wing’s supposed championing of free speech, because, in the end, it’s not even about that. It’s finding an excuse to be racist and feel good about it.
No, I am not that Chris Bird.
(I am bein’ investigated! Wheeeeeee!)
Though for the most part I agree with you n this issue, I think that Chris Sims was a poor example to use as Sims is INDEED doing all those things and worse.
This is true. “John” should be investigating Sims. The dead orphans alone could put Sims away for life.
I admit to being of two minds on this subject: the racist redneck scumbag who lights a cross on fire on some other family’s lawn deserves to go to jail, but can’t we get him on arson, trespassing, and (if the fire spread to the the house, even slightly) attempted murder or similar charges, rather then prosecuting him under “hate crimes” legislation which punish him for his thoughts rather than his actions (and generally don’t punish him as severely as that arson charge would). I am, ultimately, uncomfortable with the state punishing someone for expressing their opinion, no matter how repugnant I find that opinion, even if it’s one that would make me take a baseball bat to him if he were to express it in my general vicinity.
As Ira Glasser once said, “Laws that restrict speech are an abomination for a simple reason. They’re like poison gas; they seem to be a good weapon to vanquish your enemy, but the wind has a way of shifting.”
That said, having once been challenged by a conservative on a message board to actually read some of the drivel that Ann Coulter put out, I did find myself wondering if a libel lawsuit could be given class action status. I wonder if the DNC could sue her on behalf of its membership….
I should correct that previous statement slightly: I am uncomfortable with the state punishing someone for the *content* of their opinions. The expression of those opinions can obviously become an illegal act, but I’d rather that the content not enter into it more than necessary.
I am, ultimately, uncomfortable with the state punishing someone for expressing their opinion, no matter how repugnant I find that opinion
As well everyone should be – but that doesn’t necessarily make it not necessary.
Again, the root of hate speech law isn’t that it’s someone expressing their opinion, but that it is someone expressing their opinion in a manner potentially likely to cause harm that is worthy of condemnation.
What the hell is “oxycotton”?
I’d like the standard for punishing speech to be strenuous. More strenuous than “potentially likely to cause harm”. Something along the lines of “direct cause of imminent actual harm”. I.e., where it’s not so much the speech being punished as it is the actual harm that it causes.
Boissoin’s a dick, and more wrong than ten wrong things, but short of saying “And I tell you, my followers, go out and smite them gays”, I’d rather err on the side of allowing speech. Mostly because I don’t trust anybody other than me to decide what I can’t hear. Because then their agenda, and everybody’s got one, becomes mine by default.
There’s also the chilling effect, which is very real. If you can be punished for saying something anti-Semitic, how likely are you to discuss if there’s an authoritarian impulse visible in Israeli military actions in Palestinian settlements? Especially outside the bounds of academia, or in an extermporaneous medium like a TV talk show, where you might not have the power to thoughtfully edit your speech.
So, MGK, how does it feel to be the subject of an “investigation”?
And how long do you figure it’ll be until you have your own Encyclopedia Dramatica entry?
Truth is a defense against defamation, and hot damn will it work in your hypothetical case against Chris Sims.
Jokes out of the way, I have to say I agree with you on hate crimes – considering I could hate a coworker, a whole freaking lot, and kill them, but if I’m not racist, or homophobic, or whatever hatred is relevant to the crime, well no additional prosecution to me. It seems like trying to be the thought police, and last I checked, being racist (or sexist, homophobic, or whatever) in and of itself, is not illegal.
Holy hell it looks like I barfed over that paragraph with commas.
Well, Steyn is having the time of his life here. He’s using this free publicity in every way he can.
As well, he is being disingenuous in interviews, particularly by using the language of criminal law to apply to what is essentially a civil tribunal. Watch his interview with Steve Paikin on The Agenda (should pop)
He consistently and knowingly uses the words “charge”, “criminal” and “guilt”/”innocence” in reference to a context where that language does not apply.
Now look at today’s CBC article (should pop) on the same issue.
This quote plays right into your thesis. (Defamation against a group rather than individual, Essentially using hate law as a replacement for slander/libel.) However, I believe that this is not a valid complaint even if it were a true slander case. One defence against slander/libel is truth. It’s not always a defence, but if there is a public interest, then the truth will be a valid defence.
Steyn does not lie in his book. He does use sarcasm a lot, which might be mistaken for a mistruth by some, but his arguments are essentially demographic:
Americans aren’t breeding at a replacement rate.
Immigrants are coming in, and bringing their culture with them.
This culture is inconsistent with American culture as it exists.
Why don’t you finish of University before the age of 35 (Guilty!) and pop out a couple so that you don’t have to shut your restaurant down during the month of Ramadan in 20 years time.
He backs up this argument by demonstrating the fact, through press clippings and interview snippets, that even the liberal Muslims are giving the radical elements a pass.
Nowhere in Christianity, Judaism, Buddhism, Sikhism or Hinduism, is there that wholesale tacit agreement with the radical fundamentalist element. As a nominal Christian, I am do not defend Hagee or the Pope. However, I know several very liberal muslims who will, like El Masry, state that Isrealis are fair targets. No, they are not going to shoot Jews, but they believe the argument.
We have already caved in several areas where we should have stood up for or Canadian or American values.
In Canada, school children are allowed to bring knives to school if they are baptized Sikhs, while at the same time, under zero tolerance rules, we are suspending kids for having a tiny utility blade on their keychain.
This is the type of creep that Steyn is talking about. I introduce it to demonstrate that his outcome is possible, and more likely in our style of democracy than the proverbial snowball in hell.
Steyn has demonstrated the truth of his facts,
the viability of his outcome,
and that there is a public interest in the dialogue.
Yet, he is still required to pay good money to answer a complaint. If this were a single complainant libel case, the complainant would be required to demonstrate a primae facie case. He would be required to show the lies, show the unlikelihood of the outcome or to show where the dialogue is not in the public interest. In my view, all the complainants have done is say “I don’t like it.”
The real test would be to replace “Islam” with “Scientology” and see if you still find Steyn’s book so distasteful.
Unfortunately, it is assholes like Steyn that make us stand up and defend the values that we believe in.
I don’t mean to teach you constitutional law, but for the benefits of the readers:
“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;” -Sec. 2-b Charter of Rights and Freedoms
This is a FUNDAMENTAL right. And we really need to understand what the word fundamental means: serving as, or being an essential part of, a foundation or basis; basic; underlying.
even better is: “primary, original, pertaining to a foundation,”
The Section 2 rights are the very foundation of our society, and they should only be denied using extreme caution. Thankfully, the constitution has section one, and the pertinent part is “…as can be demonstrably justified in a free and democratic society.”
This is the Canadian way of implementing John Stuart Mill’s “Harm Principle”, which states that rights are king, until you can demonstrate harm.
Notice the word “demonstrate”. It is up to the complainant to demonstrate that harm is likely to occur as the result of someone else’s exercising of their rights. And this is exactly why the tribunals are flawed for cases like this. There is no onus to demonstrate a harm. All they have to do is allude to a harm, that may or may not arise. They need to demonstrate that harm is likely.
To address Coren’s point, the difference between a murder and a hate crime murder is that the latter is an act of terrorism; in targeting a person based on demographics, it makes the entire demographic feel less safe.
As to the hate speech thing, I think U.S. and Canadian attitudes toward civil liberties may be subtly different. Of course I’m basing this largely on the scene in “Truth Or Dare” where the Toronto police threaten to arrest Madonna for miming self-pleasure on stage, so I could be hopelessly misguided.
Which, I guess, is the problem MGK brings up, Colin: if I kill a gay person, how do they prove I’m a homophobe and that motivated my crime to the degree the law requires? If I’m hopped up on drugs and you’ve got a dozen witnesses that saw me in the gay district the day before shouting “kill all the faggots!” sure, but otherwise . . . probably not easy (which, really, seems to be a good thing).
American police arrested members of Rammstein for stimulating anal sex on stage, so it doesn’t seem so different.
Andrew,
Did you mean *simulating* in your last sentence?
‘Cause that could change the meaning of the sentence significantly.
Chris, what if Rev. Boissoin merely quoted someone saying that we should suppress homosexuality? Would that still be punishable? Because, uh, your blog just did it.
Garnet: Context matters. There is a difference between saying “Hitler said “kill all the Jews” and that’s horrible,” and “Hitler said “kill all the Jews” and to that I say damn straight, Hitler!”
Schools are teaching students how to perform oral and anal sex. You know, as bugfuck crazy as people can get down here in the States, that’s one claim I have yet to hear anyone with any kind of respectability present in a public forum.
Then again, I live in New York, where our governor just demonstrated what you can do when you have nothing to lose politically.
MGK, it sounds like you’re suggesting that publishing hateful viewpoints should only be punished if the publisher intended to advocate those views. There are, of course, many cases in which that point of view of the person doing the quoting is far from clear. (Could a newspaper quote Ernst Zundel? Maybe just certain newspapers?) Even if the publisher’s views were always clear, we’re now moving from punishing the offensive speech to punishing offensive sentiments. You see the problem.
Garnet, you’re being obtuse. No reasonable person is going to suggest that quoting offensive sentiment in a news report qualifies as hate speech because quoting offensive sentiment for the purpose of journalism won’t scare the reasonable person targeted by those comments.
In situations where the intent of the speaker/writer is unclear, most judges will apply a legal realist perspective; the point of hate speech legislation is to provide constraint on s.2(b) of the Charter (freedom of expression) where it may come into conflict with s.7 (right to liberty) and s.15 (equality). If the offensive statements are provided in a context where there is question as to their intent (journalistic/scholarly discussion being the most obvious reason to quote someone else’s offensive statement), generally HRCs will err on the side of 2(b). Common sense tends to play a role here.
No reasonable person would suggest it, eh? Much of what Steyn — one of the country’s better known journalists — is accused of believing is in fact what he has quoted other people of saying. (For confirmation, interested readers can check the blogs of various people who attended the recent B.C. hearings; not as lively a read as that killer Green Lantern movie pitch down a ways, but not bad.) I suppose I might agree that Steyn’s accusers are not being reasonable, but this may not prevent them from getting a favourable ruling; there’s reportedly a 100% conviction rate in cases involving section 13 — the hate-speech provision — of the Human Rights Code. Not being even an aspiring lawyer, I’m not sure how that record squares with human rights commissions “generally” erring on the side of freedom of expression.
All of which overlooks the fact that the journalistic-intent defence is rapidly becoming archaic. In the modern age you’re a journalist (your writings here, at thecourt.ca, even torontoist) and so’s Kathy Shaidle; you bring news to the public’s attention. Soon either we’ll all get the privileges of a journalist or, I fear, nobody will. I hope I’m being obtuse again.
oxycotton sounds like a delicious cotton candy brand.
Garnet: No, you’ve gone from obtuse to either accidentally or deliberately missing the point. Steyn didn’t get the complaint (which I have said before is essentially baseless, but that is neither here nor there) because he reported on demographic trends in a dispassionate manner.
He enthusiastically invented a scenario – largely one out of whole cloth if you know anything about things like “basic mathematics” and how European Muslims literally cannot become the majority of population or even close to it in forty years’ time – where all Muslims mindlessly bow down to the most extreme fundamentalists of the faith. (And of course he ignores sectual differences. Big shock.)
America Alone (from which the excerpt came that caused the complaint) is an exceptionally racialized work; Steyn frequently reduces culture to race, uses phrases like “beturbanned prophet-monkeys” without irony and when describing American culture as oppositional to Islam reduces it to “white.”
His work wasn’t hate speech – but it was definitely racist. The two aren’t one and the same. And it wasn’t simple journalism either; Steyn’s work has never been that of basic reporting but rather that of editorial commenter, which by definition requires insertion of personal opinon.
Oxycotton is a painkiller medication, it is also highly addictive.
I’m inclined to believe everyone should have the freedom of their expression of opinion, however it goes from opinion to action when they wield their position (be it as a journalist of a highly or not so highly reputable magazine, or as a person with a gun and some matches) over someone of the particular faction/culture/race/etc. and use that position to damage them either socially, physically, or mentally, at which point they are committing a crime and should be punished, justly.
Oxycodone.
Damn, who would’ve expected learning in these comments a street name for oxycontin? And its active ingredient.
“It’s also about eliminationist rhetoric, the attempt to use speech to not only defame a group but also to dehumanize them”
This seems rather disingenuous – it can, after all, be applied to any kind of rhetoric that’s even remotely insulting to the other person. Accusing someone of racism is pretty darn dehumanising in the sense that it makes the target ‘OK to hate’.
Personally, I’d say this is *exactly* the kind of speech that needs serious protection, on the grounds that any principle used to supress is can and will be turned against us all eventually.
Please, commenters, stop referring lightly to oxycotton. I have seen its ill effects on our society and it is not pretty. A friend of a sister’s cousin’s neighbor became highly addicted to it after being introduced to the stuff at a graduation party last summer. First he was just a casual eweser but this quickly escalated into breaking into furniture stores and “thread counting” with his friends. I feel truly sorry for him. He has “gone wool” in the lingo and hardly looks like the same dude any more.
I fully disagree with the concept of hate crime law, which takes ordinary crimes and attempt to divine hateful intent in action to create a more punitive sentence; we have trouble enough in criminal law determining intent (indeed, the search for mens rea is the defining element of most criminal law trials) without going a step further and attempting to prove one’s motive.
You misunderstand the point of properly written hate crime laws, then.
Hate crimes are not simply crimes motivated by bigotry, they are crimes motivated by bigotry which are intended to send a message to an entire group by attacking a portion of that group. If I spraypaint racist rhetoric and insults on the side of a church, I am telling an entire community that they are not welcome. If I beat a man senseless, cut off his genitals and put them in his mouth, burn him with brands, and hang him from a tree — all because of his racial identity and some flimsy accusation that he hit on a woman of my race — I am not committing a crime against that one man; I would, in fact, be terrorising an entire category of people.
This is what hate crime laws are about. The idea that anytime a “minority” is hurt by a “nonminority” it will be treated as a hate crime is a right-wing meme specifically intended to confuse discussion of the issue and protect those who are served by hate crimes. The idea that hate crimes are simply about motive is related to this. They are about intent and they are about a broader but not easily delineated class of injured parties at the societal level. The entire debate around hate crimes has been muddied by right-wing rhetoric on the issue.
I am not committing a crime against that one man
I should have said “I am not only committing a crime…”
So I presume that this “runner Christopher Bird” was using “oxycotton” briefs and jock straps as a performance enhancer, and trafficking in same. The IOC will be outraged.
You’d think that if he’s “investigating”, then “John” might have seen the word spelled somewhere along the line. Or maybe be less willing to publicly flaunt his illiteracy if he wants his “investigation” to be taken seriously.
That’s one unimaginative street name. It’s like me going by “Garner.” When I’m sold on the street, that is. Wait, forget I said anything.
Truth is a defense against defamation, and hot damn will it work in your hypothetical case against Chris Sims.
I think you’re all forgetting one thing: My lawyer is a bear.
(Woulda been funnier if I wrote the address right, but you know what I mean, Bird)
Good piece, and heartening to read when major news outlets seem to be lining up to defend Steyn’s paranoid drivel as “free speech” rather than “deranged fantasy”.
I’ve been really enjoying myself here. Think I have to blogroll you.
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