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Thursday, June 12, 2008

What’s wrong with a little censorship, eh?

As the front page of this morning's New York Times suggests, the Canadians are famously more tolerant of restrictions on speech -- in particular, regulation of “hate speech” -- than we Yankees. An American law prof, steeped in First Amendment doctrine, is tempted to react indignantly to such censorship. (For an example of Gene Volokh’s attacks on the Canadian Human Rights Commission’s burdens on free speech, see here and here).

But I suggest that we legal scholars ought to be grateful to our neighbors to the north. Whatever its merits as good policy, the Canadian experience with censorship provides a natural experiment that legal scholars ought to welcome as an opportunity to test some popular hypotheses concerning freedom of expression. (I confess that my tolerantly cosmopolitan attitude in this respect might influenced by the Canadian origins of my co-bloggers, Dan Markel and Paul Horwitz). In particular --

(1) To what extent has the Canadian experience confirmed or disconfirmed the “slippery slope” hypothesis popular in First Amendment doctrine and scholarship – i.e., the idea that officials (whether judicial, bureaucratic, or elected) will be unable to draw desirable lines between "good" and "bad" censorship?

(2) To what extent has the Canadian experience confirmed or disconfirmed the “chilling effect” – i.e., the idea that vague restrictions on speech will deter speakers from engaging in speech that is protected from those restrictions?

I do not have any answers to these questions: I hazard only a few ill-educated guesses on the questions above, in hopes of provoking some research tips or insights from others better informed than I. But just to provoke you across the jump, my tentative thought is that free speech is probably doing fine in Canada, despite the Canadian Supreme Court’s tolerance for censorship that would make most Americans blanch. If so, perhaps much of our First Amendment doctrine is based on an army of First Amendment scarecrows that, in reality, amount to little more a spooky parade of horribles in the law school classroom or judicial opinion.

But, first, here is a quick summary of Canada's experience with hate speech, recited to with the aim of showing how spectacularly Canadian doctrine differs from American doctrine concerning free expression.

Under section 13 of the Canadian Human Rights Act, S.C. 1976-1977, c. 33, "(1) [i]t is a discriminatory practice for a person … to communicate telephonically or to cause to be so communicated … by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination." Section 2 lists several prohibited grounds including religion, race, and national origin. Complaints are heard before a “human rights tribunal” – a specialized administrative body – that hears complaints referred by the “human rights commission.” The federal courts of Canada hear appeals from the tribunal’s decisions.

The Canadian Supreme Court has been famously willing to construe narrowly section 2 of the Canadian Charter of Rights and Freedoms so as to permit allow the Commission to enforce section 13 against persons who engage in speech that almost certainly would be protected in the united States by the First Amendment. In Canada v. Taylor [1990] 3 S.C.R. 892, for instance, the Court upheld a cease-and-desist order (as well as criminal contempt sanctions when the Party disregarded the order) against the Western Guard Party for spreading an anti-Semitic message via a recorded telephone message. Rejecting the American tendency to cabin restrictions on speech with allegedly clear categories like "fighting words," the Taylor Court freely admitted that the Commission's sanctions burdened freedom of expression but upheld the sanctions anyway, as a reasonably proportional method for "promoti[ng] equal opportunity unhindered by discriminatory practices based on, inter alia, race or religion."

By Americans’ standards, Taylor shows an extraordinarily casual attitude towards freedom of expression. The Taylor Court brushed aside worries about slippery slopes by quoting some dictionaries and concluding that “the phrase ‘hatred or contempt’ [is] sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament's objective of promoting equality and tolerance in society.” The Taylor Court also rejected any effort to qualify the scope of the statute by requiring proof of an intent to express contempt towards a group or even to infer a defense of truth. Thus, in theory, the reasoning of the Court would permit the Human Rights Tribunal to issue a cease-and-desist order against an accurate scholarly publication that recited accurate facts about a protected group (e.g., crime rate, poverty rate, etc) that had a likelihood of inducing others to feel contempt for that group, even if the intent of the author was innocent of any desire to induce such effects. Although Taylor was handed down in 1990, the Canadian AG’s recent brief defending the Human Rights Act seems to indicate that the decision remains good law in Canada. Download canadian_ag_brief_on_hate_speech_law.pdf

Why was Taylor so casual about protecting freedom of expression? Chief Justice Dickson quoted from one of his earlier opinions in which he declared that “hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.” Of course, the persuasiveness of this declaration hinges on the definition of “hate speech,” which the Taylor Court managed to expand to encompass a potentially enormous range of speech. Taylor added an additional reason: “[T]he commitment of the international community to eradicate discrimination extends to the prohibition of the dissemination of ideas based on racial or religious superiority.”

From an American lawyer’s relatively libertarian normative point of view, Taylor is appalling. From the point of view of scholarly investigation, however, Taylor is delightful: It provides a near-perfect natural experiment by which to determine whether robust judicial protection is necessary to protect freedom of expression from chilling effects on slippery slopes. It has been eighteen years: What are the results of this experiment? Is it chilly on those slippery Canadian slopes?

Not being an expert on Canadian jurisprudence and politics, I do not know. But here are some exceedingly casual observations, offered to spark more informed discussion from others.

(1) The Canadian Human Rights Commission has slipped very far down the slope indeed. As Exhibit A, consider the Commission's investigation of MacLean's magazine for publishing an excerpt from Mark Steyn’s book, America Alone.

Steyn is a well-known American journalist whose chapter argued that the population of Islamic fundamentalists is growing rapidly in Europe and that such growth could pose a threat to freedom of expression and religious belief in Europe, because the demographic group places a lower value on liberal principles than non-fundamentalists. Steyn’s week-long hearing before the Human Rights Tribunal began on June 4th. Although no ruling has yet been handed down to my knowledge, some onlookers are already outraged by the process.

(2) The Canadian political elite has not slipped down the slope much at all. The Steyn investigation has inspired outrage not only from Americans like Gene Volokh but also the mainstream Canadian press and prominent politicians (see here and here ). It seems probable that, were the Commission to sanction Steyn, its jurisdiction would be curtailed by the Court or the legislature or both.

(3) Has there been a lot of “chilling” on these variably slippery slopes? It is unlikely that any substantial publisher would be frightened of the Human Rights Tribunal, simply because the sanctions available under sections 53 and 54 of the Human Rights Act are so trivial: The Tribunal can issue cease-and-desist orders, fines of up to $10,000 for willful violations, and compensation of up to $20,000. The Act does not give the prevailing respondent any legal fees, and at least one target of the Commission's investigations has claimed he incurred $100,000 in attorneys fees fighting the Commission.

But it is hard to believe that any substantial publisher (e.g., a university, a newspaper, a major publishing house) would be “chilled” by 100k in attorneys’ fees into caving to an unjust cease-and-desist order. Indeed, Taylor took the nature of these sanctions into account when upholding the law, contrasting them with criminal sanctions that would be more confined by the Canadian Charter of Rights and Freedoms.

In short, my guess – it is only the most casual of guesses – is that freedom of expression is doing just fine up north, despite the indifference of Canada’s formal constitutional law doctrine to issues of critical importance to American law. I doubt that any speaker with any minimally serious academic or journalistic heft has been “chilled” by the Commission’s admittedly goofy bureaucratic shenanigans. Moreover, I doubt that the political elites will allow the Commission to burden any speech that elite opinion deems to be within the pale of ordinary journalism or academic practice. Assuming arguendo that some petty Robespierres staffing the HRT dearly wish to prosecute and intimidate conservative speakers, Conservative MPs and the press more generally would not let them get away with it. (Incidentally, it seems likely that any fines imposed by the Tribunal on Steyn will be dwarfed by the value of the free publicity and resulting book sales that Steyn will win as a result of the hearing: The tribunal’s jurisdiction does not extend to print media, leaving the profit from paper communication unaffected by its ruling).

This is not to say that marginal speakers have not been deterred. The proverbial street corner ranter; the pamphleteer with cranky, angry screeds about immigrants, the radio shock jock; even the priest who delivers an anti-gay sermon, all are liable for a cease-and-desist order – maybe even a few thousand dollars in fines -- if they use telecommunications to transmit their message. (For a list of investigations and prosecutions, see here ) But the Canadian who speaks with the usual Canadian circumspection and courtesy will, I’m guessing, escape unscathed from the Commission’s thought police.

In short, I am guessing – again, it just a guess – that the whole regulatory structure of the Tribunal/Commission does little more than force speakers to observe Canadian norms of politeness. Judging from the behavior of my Canadian friends like Dan Markel, these are pretty strict norms. (Take note, O invective-spouting commentator: if you want to get by Dan’s censorious hand and lambast my posts, you had better be subtle and Canadian about it).

But is it such a terrible thing that a society enforce strict norms of civility in speech if essentially no information or substantive argument is lost as a result? Shed for a moment, your Yankee libertarian prejudices and consider: Would the loss of (say) Don Imus’ vulgar radio patter be a terrible defeat for liberal society? Perhaps it would, under some theory similar to Robert Post’s that toleration of extremist speech helps validate the sense that democratic government is truly consensual. But I cannot help but think that such theories are ingenious but unverified – that they are compelling to us Yankees mostly as a result of our own culturally libertarian prejudices rather than solely because of the inherent force of the evidence and argument.

This is not to say that we Americans should adopt the Canadians' approach to freedom of expression: the success of that approach (assuming arguendo that it has been successful) is the result of an elite political culture that we might lack in here the States -- a political culture that guards freedom of expression (albeit of an elitist sort) much more effectively than any judicial doctrine. I say only that, if one were to ask me to provide a powerfully persuasive account that the Canadians have got the balance between civility and free expression wrong, I’d have to confess: I’d be at a loss for words.

Posted by Rick Hills on June 12, 2008 at 07:08 AM in Constitutional thoughts | Permalink

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the pamphleteer with cranky, angry screeds about immigrants, the radio shock jock; even the priest who delivers an anti-gay sermon,

It's interesting that the professor reaches for right-wing caricatures when he imagines whose speech will be shut down by Canadian law. It seems likely that part of his admiration for that law arises from a perception that the law will be a useful weapon aimed primarily against his political adversaries. If Canada were more likely to be restricting speech on his end of the political spectrum, one has to imagine that he would find it less salutary.

Posted by: Tom T. | Jun 13, 2008 9:35:53 PM

You may be interested to know the limits on freedom of speech that are the reality in Canada.

In British Columbia, the government just passed a law the disallows third party advertising 60 days before an election writ is dropped. Elections are 28 days. This is the law now. The first draft of the law was for a longer period. Criticism created the perfect canadian compromise; we will take away your rights but less than what we wanted.

A few years ago BC legislation gave municipalities the status as persons under the law. So if you criticise municipal politics, you can be hit with a libel suit. There are about 6 cases in BC right now. The municipality of course can use your taxes to fund their legal expenses. I was talking about this and someone said that this couldn't stand. I said how much money do you have.

Add to this the HRC tribunals. The regulatory agencies in this province have bragged that they are not subject to the Charter of Rights. Great fun.

Derek

Posted by: Derek | Jun 13, 2008 8:47:57 PM

David Warren,

Your post says it all. Congratulations.

Posted by: Corky Boyd | Jun 13, 2008 5:45:04 PM

Shirley, you're joking.

I'd explain to you why you're not funny, but that point would be lost to you too.

Posted by: bour3 | Jun 13, 2008 3:32:30 PM

Another view on the subject:

Deafening silence
The pen is reputed to be mightier than the sword -- and probably is, over the longer stretches of history. Over the shorter stretches, the sword is definitive; or, as that great Leftist sage, Mao Tse-Tung, expressed it: “Political power grows out of the barrel of a gun.” With its monopoly on power, the State is equipped to suppress the truth. And yet the truth will not die, no matter how many people are punished for expressing it. They may die -- or be imprisoned, fined, compelled to publicly recant, or otherwise silenced and humiliated -- but the truth will survive.

Yes, this is a statement of my Catholic faith. But it is also a candid reflection on all of the history I have read: that political power passes away, that truths about God and man resurface, that human freedom is never fully extinguished. Much of the history we know may itself be false, owing to the disappearance of evidence over time; and justice in this world may not be availing. Yet in broad outline, a time always comes when we may review the past, freed from the shackles of the past. The chains of history always rust away.

This is a point worth recalling, as we head into a period in Canada when, owing to malice from an ideological camp, to cowardice on the part of our elected representatives, and to indifference on the part of the people, free speech and freedom of the press will disappear in Canada. Those who deviate from the officially-sanctioned lies of “political correctness” will emigrate, perhaps mostly to USA, or experience that peculiar form of internal exile -- of enforced silence -- that good men have shared in many times and places.

My own political education was provided in part by several impressive Czech exiles from Communism, with whom I fell in as a young man. What I learned from them is that under an ideological regime, the best men live in jail, or are assigned to work in tanneries and collieries, where other good men may be found. The worst men live in luxury and power.

As free speech disappears in Canada, one looks for instance not at the more celebrated cases of Mark Steyn and Ezra Levant, but at the much less publicized fate of e.g. Rev. Stephen Boisson, convicted by an Alberta kangaroo court (“human rights tribunal”) last November for publicly expressing the Christian and Biblical view of homosexuality, on the say-so of an anti-Christian activist from his home town.

Rev. Boisson has now been ordered to desist from communicating his views on this subject “in newspapers, by email, on the radio, in public speeches, or on the Internet” so long as he should live. He has been ordered to pay compensation to Darren Lund, the anti-Christian activist in question, and further to make a public recantation of beliefs he still holds.

Meanwhile, Fr Alphonse de Valk, editor of the magazine Catholic Insight, is being prosecuted by a gay rights activist in Edmonton, for having upheld both sides of the Catholic teaching on homosexuality in the pages of his magazine over more than a decade: that homosexual behaviour is sinful, but that we are nevertheless to love the sinner.

That case, in which, as ever, all of the expenses of the complainant are met by the taxpayer, will drag on for some time before the inevitable guilty verdict is delivered, and the punishments to Fr de Valk and his colleagues are meted out. While the case drags on, the small magazine, which exists without state subsidies or significant advertising, on the dime of its several thousand loyal Catholic readers, is being driven towards bankruptcy by the cost of maintaining its own legal defence. These are costs they would not be eligible to recover, even if they won at tribunal.

Fr de Valk has written a lead editorial in the June number of Catholic Insight that should be read not only from the pulpit to every practising Catholic in Canada, but by every concerned Canadian regardless of his religious or political affiliations. It is entitled, “Fascism has come to Canada,” and mentions several other major cases in which Christians have been hauled before the country’s “human rights” tribunals, and ordered to abandon their beliefs, pay out to complainants, stage public recantations, submit to indoctrination, etc. -- with little to no media coverage. Alas, there are more cases (they are multiplying quickly), and the “human rights” commissars are not the only source of state persecution.

Among the spookiest aspects of these cases is the silence over, and indifference to them, on the part of journalists whose predecessors imagined themselves vigilant in the cause of freedom. As I’ve learned first-hand through email, many Canadian journalists today take the view that, “I don’t like these people, therefore I don’t care what happens to them.” It is a view that, at best, is extremely short-sighted.


David Warren
© Ottawa Citizen

Posted by: MikeinAppalchia | Jun 13, 2008 2:25:11 PM

"The CHRA does not apply to public speakers if they do not use telecommunications. So, thanks to Canadian federalism which limits the power of the federal government, your student group is in the clear so far as the CHRA is concerned."

If so, how was the BC (or Alberta) pastor convicted and fined for his sermons and for publishing Bible verses? The CHRC may not be such a problem as the various Province's versions.

Posted by: MikeinAppalchia | Jun 13, 2008 12:00:08 PM

The problem of enforcing hurtful speech is one of interpretation. For instance, Moslems have repeatedly claimed the west had stolen their prosperity from them. Yet a discussion of the real reasons would probably be deemed hate speech. Such subjects as the the inablity to "rent" money (pay interest on borrowings) severely limits capital formation. The marginalization of women cuts the productive workforce and the primacy of religion over individual rights stifles new and innovative ideas. All of these act to the economic detriment of a people, so many of whom sit atop extraordinay liquid wealth.

These subjects should not be limiited. Nor should discussions of wife beating or honor killing.

The real question is who determines these limits? An appointed tribunal, responsible to no one and with no rules of evidence, no cross examination of witnesses, no procedural rules? The Canadian system is not one of fairness. It is run by agenda driven folks. Any court with a 100% conviction rate is suspect.

Better we all get thicker skins and defend our actions rather than stifling discussion.

Posted by: Corky Boyd | Jun 13, 2008 10:44:04 AM

Is that you Professor Sokal?

Posted by: J | Jun 13, 2008 9:57:01 AM

I admire the ferocity of the comments above, which indicate that our peculiarly American attitude towards freedom of expression -- shared by no other nation, to my knowledge -- is alive and well. As I happen to share that attitude, I can pardon the incivility of the remarks (this isn't Canada, after all), all of which seem to have missed the point that I was asking a question from the Canadian point of view, not asserting that I shared that point of view. Bravo, my fellow Yankees!

But my question remains: Supposing that you wanted to take a slightly more detached attitude in order to persuade a Canadian who did not already share your world view to change their ways regarding speech? Would you have anything to offer besides epithets and bravado?

"An astonished reader" offers a reductio argument that the CHRA would deter a student group from bringing Steyn to campus to speak. But think like a lawyer, "astonished reader," and be less astonished: The CHRA does not apply to public speakers if they do not use telecommunications. So, thanks to Canadian federalism which limits the power of the federal government, your student group is in the clear so far as the CHRA is concerned.

Moreover, that student group would not be deterred by the CHRA, because, even if the group mounted no legal defense whatsoever, the worst sanction that they could face for inviting Steyn would be a cease-and-desist order, given that the 10k fine requires proof of willful intent to express hatred or contempt. Of course, a cease-and-desist order is toothless after the speech is completed -- and there is no provision in the CHRA for a preliminary injunction or TRO.

I suspect that the Canadian Supreme Court was aware of the emptiness of the CHRA's remedies for speech that did not intend to express contempt -- which is why they upheld the Act as applied to Taylor.

Posted by: Rick Hills | Jun 13, 2008 9:55:48 AM

But it is hard to believe that any substantial publisher (e.g., a university, a newspaper, a major publishing house) would be “chilled” by 100k in attorneys’ fees into caving to an unjust cease-and-desist order. Indeed, Taylor took the nature of these sanctions into account when upholding the law, contrasting them with criminal sanctions that would be more confined by the Canadian Charter of Rights and Freedoms.

Well thank goodness I'm a substantial publisher, then! What's that? I'm not? Oh, crap.

Posted by: mcg | Jun 13, 2008 9:44:07 AM

Professor,

Your lack of insight on this topic is stunning for someone in your position. I doubt you really understand what freedom of speech is or take it at all seriously. Here's a comment on your post which I have taken from another blog (Althouse) which very nicely illustrates the point:

"But it is hard to believe that any substantial publisher (e.g., a university, a newspaper, a major publishing house) would be “chilled” by 100k in attorneys’ fees into caving to an unjust cease-and-desist order. Indeed, Taylor took the nature of these sanctions into account when upholding the law, contrasting them with criminal sanctions that would be more confined by the Canadian Charter of Rights and Freedoms."

Well sure, if you directly challenge someone's manhood, he'll fight back.

If you have $100K, and you think of yourself as being in the speech business, and you view the sanctioned speech as expressing your own ideas -- all of which are true in the MacLean's case -- you would argue the case. You'd get free advertising, support from prestigious media sources, you'd spark debate on a subject you think is important. It's not a terrible way to spend money. It would be contemptible cowardice not to fight back.

But what if the fine were for bringing Steyn to speak at your campus? You have important factions who don't want to bring him in the first place, other factions who don't want trouble, still other factions who affirmatively want to shout down opponents and would welcome an external gag order. The student organization that wants to bring Steyn has 25% turnover per year due to graduation, and can't be relied on to follow a long court case through to its conclusion. Is there any doubt that there would be a strong incentive to knuckle under?

Even with a guaranteed victory, a court case is long, expensive, controversial and emotionally damaging. For something as basic as free speech, you need to keep these kinds of cases out of court. The sheer hassle of defending your rights can have a chilling effect.

Posted by: An astonished reader | Jun 13, 2008 9:24:46 AM

Prof. Hills suffers from the disability of being clever without being wise.

Posted by: wurly | Jun 13, 2008 8:42:59 AM

This is your argument... as long as people mind their manners, everything's fine? You are a writer and an educator. What the hell are you thinking?

Posted by: knoxwhirled | Jun 13, 2008 8:26:19 AM

But it is hard to believe that any substantial publisher (e.g., a university, a newspaper, a major publishing house) would be “chilled” by 100k in attorneys’ fees into caving to an unjust cease-and-desist order.

Freedom of speech is now only for the rich and powerful, eh? I guess it's time for us little people to start learning our place.

Posted by: Paco Wové | Jun 13, 2008 7:51:35 AM

"Shed for a moment, your Yankee libertarian prejudices.."

Hey! I got your Yankee libertarian prejudices. Right here. Hanging.

Shed this, pal.

Our national history is a long, bloody trail of men who have died to maintain the rights of idiots and others (yourself included) to mumble nonsense.

I honestly suggest that if you want someone to start shedding prejudices you walk the walk before you talk.

Posted by: paul a'barge | Jun 13, 2008 7:38:37 AM

"Shed for a moment, your Yankee libertarian prejudices and consider: Would the loss of (say) Don Imus’ vulgar radio patter be a terrible defeat for liberal society?"

The problem is that you're exhorting us to step back from one set of prejudices while maintaining without question another, equally arbitrary set - the set that says civility is worthwhile and that vulgar radio patter or racist speech is not worthwhile. The whole point of the libertarian philosophy is that there are people as strongly convinced of the deep worth and value of racist and inflammatory hate speech as you are convinced of its dangers. The most intellectually honest way (IMHO) to deal with the juxtaposition of those two value systems in our society is to simply step back and refrain from putting one above the other when it comes to legal protection.

To me, this reads like you're missing "the point" of freedom of speech. I grant that I'm not convinced that American freedom of expression actually creates a "better" society in a practical sense, because I also value civility as you do. But I value freedom more. I don't think it makes sense to say "forget about which of your values is more important and tell me if doing [X] would create a better society" because my ability to assess what makes a "better" society is dependent on which things I value more.

Posted by: Yankee Libertarian | Jun 12, 2008 10:01:54 AM

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