Legal Commentary

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 could constitute impermissible ?hate speech,? even if the intent of the author was innocent of any desire to induce such effects. Although Taylor was handed down in 1992, 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. (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.