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February 28, 2013 at 6:02 AM
In Canada, “hate speech” survives a legal test
Canada’s Supreme Court has affirmed its law against “hate speech”—the sort of law that would be unconstitutional in the United States. Canada now defines illegal hate speech not in terms of “the repugnancy of the ideas expressed” or the speaker’s intent, but its actual or likely effect on a group. Here is the Court:
The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term “hatred” or “hatred and contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience.
This rule is not as bad as it could have been, but I prefer the American system. I don’t trust the government to make these kinds of decisions, and I don’t want to chill speech. In a free country if some man goes around holding signs saying, “Gay activists expect taxpayers to fund their porn addiction,” etc., he can be denounced in serious tones, laughed at to his face or publicly shunned. Better yet, he can be ignored. That’s what I’d do. I don’t think he should be hauled in by the cops, put on trial and fined. Then again, I’m not Canadian. We may be “children of a common mother,” but on this matter we went separate ways.