Hate speech laws are hateful to liberal freedoms

It’s a little surprising that, outside the RWDB blogs, virtually no attention has so far been paid to the current trial of Canadian right wing pundit Mark Steyn on (effectively) religious vilification proceedings by the British Columbia Human Rights Commission.  Admittedly it’s all happening in far away Canada, but Steyn is a fairly well known figure in Australia and even visited on a speaking tour quite recently.

The Steyn proceedings are extremely disturbing for the future of liberal democracy in Canada, and by extension parts of Australia that have enacted similar “hate speech” laws (e.g. Victoria). Indeed it’s in some respects more disturbing than the not dissimilar proceedings against Australian fundie god-botherers Danny Nalliah and Daniel Scot of Catch the Fire Ministries (the VCAT decision in which was mercifully reversed by the Court of Appeal in any event).  Like Nalliah and Scot, Steyn’s “hate speech” comments dealt with Islam and its more extreme and worrying elements. 

Unlike Nalliah and Scot’s rather bizarre diatribe, Steyn’s words were undeniably part of mainstream political discourse. That such discussion could be prohibited in a supposedly liberal democratic country is quite extraordinary and even frightening.  Personally I agree with most of what Steyn had to say, albeit that I might have expressed it a bit less trenchantly and with a few more qualifiers.  But that really is beside the point.  The whole point of freedom of speech is that one is free to speak, within very broad limits, irrespective of whether others may disagree or be offended.

There was, however, a MSM article about the Steyn case in The Australian today, by its pseudonymous columnist Jack the Insider.  Unfortunately it is replete with both factual and legal errors, both major and minor.  I’m not sure exactly at what institution Jack is an “Insider”, probably the back bar at some Surry Hills pub judging by his Oz photo and the quality of his thinking (or lack of same).

Jack says: “More recently, the Canadians introduced a charter of rights and freedoms, again without constitutional amendment. “  In fact the Canadian Charter was enacted as part of Canada’s Constitution by the Uk Parliament by the Canada Act 1982.

Jack also says: “The charter enshrines freedom of expression but makes no mention of freedom of speech.”  But that’s because “freedom of expression” is a wider term than “freedom of speech”, designed to convey that images and symbolic speech as well as words are covered by the constitutional freedom.

However, the major defect in Jack’s “reasoning” is his claim that the Steyn proceedings are a consequence of Canada’s possessing a bill of rights at all.  The basic premise of Jack’s article is that the Steyn case is a salutary reminder of the dangers for Australia if we had a constitutional bill of rights (or indeed any bill of rights).  In fact if anything the Steyn case is made possible by the fact that the Canadian Charter is a weaker form of bill of rights, at least as to freedom of speech, than its US counterpart, and by the fact that the Canadian Parliament apparently regards other values like protecting racial, religious and other minorities from being offended as more important than free speech.  Hence it has enacted the Human Rights Act (roughly equivalent in its scope and objects to Australian states’ anti-discrimination laws and the federal Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act) under which Steyn is being prosecuted. 

The Canadian Charter rights (including free speech) are expressly qualified by Article 1 in a manner which to a significant extent limits their effectiveness as restraints on the legislature.  Article 1 provides that the Charter ”guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

That seemingly innocent qualifier has been interpreted by the Canadian courts and Human Rights Commission in a manner which makes its constitutional guarantee of free speech almost meaningless, or at least subordinate to a very wide range of other collective rights and interests:

Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express ones idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate. (See Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155, at para. 60)

As a result the Canadian Charter is effectively useless in protecting free speech where that speech sufficiently offends someone because of their colour, race, language, sex or religion!

By contrast, the US Constitution’s First Amendment guarantee of freedom of speech is expressed in unqualified terms and has long been interpreted not to permit any law which abridges free speech unless it is appropriate and adapted (to use the Australian expression) to regulating lewd and obscene language or images, profanity, libel and insulting language only when it amounts to “fighting” words i.e. language likely to provoke immediate violence/serious breach of the peace.  Consequently a ”hate speech” law not dissimilar to the provisions under which Steyn is being pursued was held to be unconstitutional in R.A.V. v. City of St. Paul in 1992. 

However, Australia doesn’t have a bill of rights at all*, neither a strong US-style one nor a weaker (in free speech terms anyway) Canadian one. Consequently there is no constitutional impediment whatever to Australian parliaments enacting laws like the Canadian Human Rights Act under which Mark Steyn is being pursued (subject to the qualification explained below). Indeed, as I observed earlier, there are close parallels between the Steyn proceedings and the Catch the Fire Ministries case in Victoria.

The entire premise of Jack the Insider’s article is therefore fundamentally misconceived. The Steyn case is not the result of Canada having a bill of rights, if anything it’s a result of its having a form of bill that is too weak to provide the effective protection of free speech that its US counterpart does. The Steyn case doesn’t provide a lesson for Australia about what can happen if a country has a bill of rights (as Jack believes), because Steyn-type prosecutions can happen and already have happened in Australia. If anything, the lesson we can draw from the Steyn case is that Australia needs a strong US-style guarantee of freedom of speech rather than a Canadian-style one with weasel words that subordinate free speech to other and potentially freedom-denying values.  It’s more than a bit of a worry when the only discussion in the Australian media of an important legal matter like the Steyn case is the sort of ignorant, incoherent garbage spewed out by Jack the Insider.

*PS Just a quick qualifier. Australia does in fact have a limited implied constitutional freedom of political speech, and several Justices in the recent (2004) decision in Coleman v Power  (namely Justices Gummow, Hayne and Kirby) appeared to favour a strong US-style interpretation whereby a law which incidentally burdened free political communication would only be valid if appropriate and adapted to preventing a real and immediate threat of breach of the peace.  For example, Kirby J said:

It follows that s 7(1)(d) can, and should be, construed so that it conforms to the Lange test as reformulated in this appeal. As so construed, “insulting” words in the context of the Act are those that go beyond words merely causing affront or hurt to personal feelings. They refer to words of an aggravated quality apt to a statute of the present type, to a requirement that the insulting words be expressed “to” the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context.

In such communication, unless the words rise to the level of provoking or arousing physical retaliation or the risk of such (and then invite the application of the second limb of the Lange test) a measure of robust, ardent language and “insult” must be tolerated by the recipient. In Australia, it must be borne for the greater good of free political communication in the representative democracy established by the Constitution.

If that reasoning achieves majority High Court support, and if Steyn’s words were held to be concerning political rather than just religious matters (as I think they are at least in part), then it may well be that Australia’s constitutional system would already prevent a Steyn-type case in this country 11. KP: although I note that the Victorian Court of Appeal didn’t think much of a similar argument in Catch the Fire Ministries - I think they’re wrong [].  But if that is so, it’s because we already have limited US-style constitutional bill of rights protections. 

Update - Legal Eagle also has an excellent post on the Steyn case, with some useful quotes from the Victorian Court of Appeal’s decision in Catch the Fire Ministries.

This entry was posted in Law, Politics - international, Politics - national by Ken Parish. Bookmark the permalink.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

36 thoughts on “Hate speech laws are hateful to liberal freedoms

  1. Far away Canada? Hardly. Canada has become The Luvvies’ new Sweden. While their parents could not get enough of Sweden their wretched progeny want Australia to become Canada. Pig’s ass!

  2. The Luvvies will never get behind Steyn. They – led by Lefty Kim – exposed themselves during the Ayaan Hirsi Ali affair. Proving once more that Leftists have never met an authoritarian they haven’t fallen for. Libertarian Left? ROFLMFAO.

  3. Until such times as folks realise that Islam IS primarily a political ideology we are going to continue to be bombarded with this crap.

  4. Pingback: skepticlawyer » Human rights and criticising Islam

  5. Very nice post, Ken.

    I don’t agree with Steyn’s views, but I support his right to express them. We have a post up at Skepticlawyer, and like you, we see parallels between this case and Catch the Fire.

  6. I’m not at all surprised that no-one outside RWDB circles has been paying much attention to the Steyn case. Especially over the last fortnight, while the Henson debacle has been playing out.

    Much as I’d like to be Voltairean about this, I’m going to have a hard time getting passionate about defending the rights of a Canadian RWDB hero to freedom of speech in Canada, when the demands that I support Steyn are coming form the very same people who endorsed the actions of NSW in seizing those 20 pictures from the Rosslyn Oxley9 gallery and the campaign of smear and slander against Bill Henson.

    “I disagree with what you say but I defend to the death your right to say” – fine sentiment, but a little difficult to put into practice when it means tacitly endorsing that sort of double standard.

    Beyond that, what Tysen said.

  7. Pingback: skepticlawyer » Economics v Islam: a cage match

  8. Much as Id like to be Voltairean about this, Im going to have a hard time getting passionate about defending the rights of a Canadian RWDB hero to freedom of speech in Canada, when the demands that I support Steyn are coming form the very same people who endorsed the actions of NSW in seizing those 20 pictures from the Rosslyn Oxley9 gallery and the campaign of smear and slander against Bill Henson.

    I support the right to free speech for both Hansen and Steyn. Personally, I would say that the right to freedom of speech means that Hansen had the right to display those photos, and that the whole thing was a hysterical beat up. But that doesn’t impede Steyn’s equal right to say what he wants to say, even though I disagree with it. Just because he’s a RWDB (and I’m not) doesn’t mean that I should ignore his case.

    However, I do agree that there is an issue of moral inconsistency: why support free speech in one case and not the other?

  9. I noticed that Tim Blair’s Henson posts were largely vehicles for having a go at the ‘artistes’. The Elites v Hoi Polloi street fight still drags in the punters from all sides, sad to say.

  10. ..demands that I support Steyn are coming form the very same people who endorsed the actions of NSW in seizing those 20 pictures from the Rosslyn Oxley9 gallery and the campaign of smear and slander against Bill Henson.

    Say what?

    A complaint was made by Hetty Johnson, the police acted believing that a crime was committed (“publishing an indecent article”) and later ceased actions after taking further advice.

    A lot of people wondered about how a parent could let a young girl be photographed naked, people including MPs and Senators yet there was no call for punitive action.

  11. Have read original Steyne article extract at Macleans.ca and also looked at redacted CHRC complaint document (which cheekily complains about one Steyne sentence without pointing out that he was actually quoting an imam).
    I honestly can’t see how this application to the Commission will survive challenge.
    I know that it’s a mad world we live in and justice through the courts is a fickle thing; but really, how can this article be thought of as religious vilification or similar?
    Steyne’s piece didn’t pull his punches and many other journos wouldn’t have used his examples, however it didn’t make me want to go out and dicriminate against a particular group and I imagine no other reader did either.
    Thanks for your post Ken. Enjoyed it.

  12. Yes, informative post. Thank you.

    I do not see a connection between Henson and Steyn. The latter is a free speech issue; the former a child exploitation issue.

  13. The latter is a free speech issue; the former a child exploitation issue.

    Surely this is fairly clear?

    Is it?

    Apart from this article, Steyn has advocated the War in Iraq. With complete foreseeability, thousands of children have been killed or maimed.

    Henson’s models claim to be absolutely fine, thanks.

  14. Who knew a Canadian writer on showtunes who occasionally dabbled in writing about geopolitics was the real power behind the Bush administration?

  15. Pingback: Mark Steyn and Ezra Levant : Tree of Knowledge

  16. Apart from this article, Steyn has advocated the War in Iraq. With complete foreseeability, thousands of children have been killed or maimed.

    You mean, ‘besides the point at present, but…’

    In any case, please supply details of whether your positions on aboriginal welfare, homelessness and Zimbabwe, for starters. Bear in mind that any approach is very likely to cause extremely foreseeable harm to many children and adults. Feel free to adopt vacuity as a defense.

    Hensons models claim to be absolutely fine, thanks.

    Because that’s the standard for child pornography. Who knew?

  17. Ken

    Its a little surprising that…

    I guess now you know why! I think this is another blow to the idea of progressive fusionism spreading beyond the handful of exponents on this blog and Andrew Leigh.

  18. Jason and Patrick, my point is that one ‘offence’ is an image, and the other is words in print. No one alleges that Steyn dropped any bombs himself (heaven forefend!), nor that Henson sexually abused any children, photographed others doing so, or produced the images with the intention of arousing peadophiles.

    One person advocates war of aggression to a mass audience, presumed to be mostly sane, on behalf of a very powerful government seeking public support, and attempts to stir up ill-feeling towards Muslims as a group. The other makes art that will probably be misinterpreted by people with a particular mental illness, especially now that the censorious have ensured that it’s been brought to their attention.

    And so, if one form of expression is a “child protection issue” then so is the other, since both forms of expression may indirectly cause harm, along with my unpublished opinion on Zimbabwe. I’d say, though, that it’s a longer bow to draw from Henson’s art to actual abuse, than from war advocacy to war, or from bigoted speech to bigoted action, for the reasons of intent and intended audience given above.

    Patrick, the “standard for child pornography” has not been met, according to police, the classification review board and prosecutors. The original complaint leading to the investigation was not made by Hetty Johnston, but by enraged 2GB listeners. You should perhaps seek your legal opinions elsewhere before accusing anyone of vacuity.

  19. I’m pretty sure Jonathan Haidt would have something to say about why more conservative types are likely to see Henson’s photos as offensive/immoral but Mark Steyn’s writings as harmless. Henson fails the “purity test” in a way that Steyn completely avoids. I guess the interesting question is how much attention should we pay to emotional “intuitive” responses regarding morality, especially when determining legality. On the other hand, it’s worth wondering just how ‘intuitive’ a “disgust”-type response to the sexualisation of a teenager could be, given that surely for most of a our evolutionary history, teenagers were very sexual beings. And of course, the demand for “barely 18″-type pornography would seem to indicate that a significant percentage of people don’t find the sexualisation of teenagers “disgusting”.

    (OTOH, if Henson’s photos were about the sexualisation of highly obese adults (NSFW!), I wonder what the response would be.)

  20. I never even suggested it was, Sean. Just that child pornography, which is what I understood people to be upset about, is generally considered to be independent of any harm done to the children.

    There is a reasonable view that anyone advocating communism is advocating one of the most extreme forms of mass misery ever visited on people – should we execute professed communists? What about Muslims advocating the strict and decidedly degenerate forms of Muslim law which undeniably cause incredible harm to the women, children, gays and simple dissenters who live (or, more to the point, die) under them? Execute them too? Would mere exile suffice?

    Ken’s point is that there is no ‘right wing’ exception from free speech. I don’t know anyone who thinks that there is not a ‘child porn’ exception. I have, on the other hand, heard of ‘national interest’ and ‘reasonable view’ exceptions. Silly me though, I thought there was a consensus that they were a bad idea, contrary to any conception of meaningful democracy or freedom and only served to help entrench vested interests.

    Just to clarify, the question is not whether child porn is (or should be) protected as free speech, but whether Henson’s work was child porn. On that, the better view would appear to be no, but close to the boundary (unless I’ve misinterpreted the apparent consensus that he could die in a ditch sooner than photograph anyone’s own children).

  21. Patrick, how did execution come into it?

    As far as anyone advocating the “decidely generate forms of Muslim laws which undeniably cause incredible harm”, then sure, I think there is a place for classifying this as illegal – certainly when the advocating is being done to those with impressionable minds. Of course I don’t see the need for the word “Muslim” in there. If a Christian preacher was found to be strongly advocating the stoning or burning of prostitutes, witches or homosexuals to a wide audience including children, I would have few qualms with his being fined for doing so. No advantages of maintaining the need for free speech are lost by disallowing authority figures to incite crowds to violent or dangerous behaviour.

    (And FWIW, from what I’ve read of Mark Steyn, I can’t see much of a case for classifying his behaviour as an example of such.)

  22. You’re being obtuse.

    I think it’s fairly clear that I’m not advocating Steyn’s execution or other punishment, nor anyone else’s.

    As for there not being a “right wing” exception, obviously; Rupert Murdoch roams the earth. Nor should there be a national interest (ie in practice ruling party interest) exception, nor a reasonable view (too subjective) exception.

    The **civil claim** in question is brought against Steyn under a hate-speech exception that exists in Canadian law. I don’t presume to speak for Ken but I’d guess that he is against that exception, given the heading of the post. I also understand that the claim has not yet been successful. If it is, Steyn likely has appeal rights.

    To me, Steyn’s article doesn’t get to the level where recourse should be had to the courts. Maybe there is no such level, then again I’ve never lived in a society where someone was advocating ethnic cleansing to people who were listening.

    And again on executing people, what the plaintiff originally asked for was a printed correction of inaccuracies concerning Islam and a right of reply. For mine the journal in question had the right to refuse that as they did, though they should probably have said yes, subject to fact checking the Islamic council’s complaints about accuracy and its contribution.

    I’m sure all of Henson’s models are indeed someone’s own children.

  23. BTW, re my previous post, I see fairly little difference between a church leader inciting his congregration to kill or injure others and a crime boss ordering a hit from his henchmen.

    Yet in the U.S., several preachers have got away with doing exactly that, including one who advocating napalming Wiccans.

  24. Does anyone here know how abetment/conspiracy to murder charges work here, Canada and/or the U.S.? Why would/wouldn’t they apply in the case of a preacher inciting his congregation to potentially murderous behaviour?

  25. The **civil claim** in question is brought against Steyn under a hate-speech exception that exists in Canadian law.

    Just thought I’d point out that this isn’t a civil claim, because the HRC isn’t a court. There are no rules of evidence, the complainant is wholly state funded, while the defendant receives nothing. It also has a 100% track record of finding against defendants. Truth is not a defence, nor is fair comment.

    The only reason this has blown up so badly in Canada (and now globally) is because the complainants have gone after a high profile individual with sufficient funds to protect himself. Previous defendants have been ‘little people’ who have had no recourse against a state-funded juggernaut. In a sense, it would be better for Steyn to lose before the HRC, so that the entire raison d’etre of HRCs and the legislation underpinning them can be exposed to judicial review.

    NPOV – You’re talking about incitement, which varies from jurisdiction to jurisdiction, although all common law jurisdictions have it. It is generally quite sufficient to deal with genuine incitement. The reason preachers – particularly in the US – don’t get caught by it is that they are expected to engage in high-flown and unbelievable rhetoric. Occasionally KKK/Nation of Islam types get pinged for incitement, but the others are generally left alone.

  26. I’m surprised you law types haven’t noticed this
    paradox:

    A situation could easily arise wherein an act which
    is part and parcel of a certain culture/ethnicity/
    religion elsewhere is a serious crime in Canada, BUT
    no one would be allowed to speak out against it, since
    it would “offend” its practitioners to mention these
    acts in a negative light.

    “Honor” killings and stoning of adulterers come to mind.
    A guilty verdict could actually enrage an excitable
    minority to violence, not to mention the crime of
    referring to them as “excitable”.

    This is only one of the destructive effects of your
    collective tolerance of intolerance.

  27. Ken

    Just read your analysis seriously. Fucking sharp thinking dude!! Can I call you next time I am caught with my pants down!? :)

  28. Pingback: Club Troppo » Vilifying anti-vilification laws

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