No Balance to be Found in Hate Speech Decision

by Kevin Kindred

Sometimes the civil libertarian in me and the queer rights activist in me don’t get along well.

There are times when as an activist, I welcome government interference in our lives—when it levels the playing field for the disadvantaged, for example, or where it supports initiatives that will help our community thrive. On the other hand, I also see our movement as one of resistance against government interference--fighting for our right to sleep with who we want, how we want, express ourselves how we want, without the state telling us what’s right and wrong. Sometimes, these two principles don’t live together very well, and these tend to be the areas where queer activists get into arguments.

Censoring hate speech, however, isn’t something I’m conflicted about. I think the Supreme Court of Canada’s decision in Whatcott gets it wrong from both perspectives. It permits an unacceptable interference with free speech. And, it supports government actions which make things worse for queer Canadians, not better. Let me explain what I mean.

My first argument is probably familiar to you. I’m one of those folks who thinks that censorship is among the worst things a government can do to its citizens. Queer people should know that better than most. Our history is one of repression, of being told by the state to shut up and stay invisible. Even today, we continue to face direct and indirect censorship of our sexual and artistic expression. We should be the first people standing up for freedom of expression, even when the views expressed are controversial and, to us, reprehensible.

But honestly, that’s not my main criticism of Whatcott. As much as I love free expression, I recognize that every right has its limits. I support, for example, making it criminal to incite violence against others. So to some extent, it’s just about where we draw the line.

Whatcott draws the line wrong. Censoring hate speech doesn’t help reduce hate—it fosters it.

Thankfully, people like Bill Whatcott live on the margins of society. They didn’t get there because we censored them, they got there because we slowly, persuasively made the case that gays and lesbians are worthy of respect. At first we were the ones expressing the unpopular and controversial view, but we did it well, and we changed the culture. I don’t think things are perfect, but today, most Canadians disagree with Bill Whatcott when it comes to homosexuality.

When we bring hate speech complaints, we drag these people from the margins into the spotlight. Bill Whatcott’s stupid homophobic pamphlets, which belong in the trash cans of the folks he delivered them to, have now been published, analyzed, and made available for everyone to see. This spotlight phenomenon isn’t just in his case, either. We know, for example, that when hate speech complaints are brought against websites, their hit counts go up dramatically. In this day and age, censorship doesn’t actually suppress hate speech, it draws attention to it--with the additional attraction of it now being taboo.

Whatcott himself, and others like him, who belong on the political fringes, are becoming folk heroes in Canada’s right wing circles. They give speeches, draw in supporters, and become the focal points of fund-raising and grassroots efforts. A hate speech complaint against Ezra Levant actually breathed life into his near-dead career as a political commentator—he now spins his bigoted lies on Sun News. Hate-mongers don’t fear censorship—they yearn for it. It’s what keeps them going. Trust me, I’ve seen it first hand. A few years back, when a Halifax pastor published anti-gay bible verses as newspaper ads, he told the media that he was waiting for the human rights complaint and ready to go to jail to prove his point. Local activists didn’t take the bait, and the pastor and his tiny church faded back into obscurity. Had we decided to bring a complaint, like activists did in the Whatcott case, his cause would have thrived from the attention.

When we censor our most extreme opponents, we unwittingly give them a new kind of power and attention. And if you look closely, you can see how that power is being turned on human rights commissions themselves. Setting aside hate speech complaints—a tiny part of their mandate—the commissions do important work in addressing discrimination against minorities, including queer folks. But the message that “human rights commissions are out of control” has really resonated with the political right, fuelled by these hate speech complaints. And as a result, we’ve seen efforts in several provinces to down-size and eliminate human rights commissions, or at least make them harder to access.

This phenomenon of censorship making things worse is not accidental, or exceptional. It’s a fundamental fact about the way censorship plays out in reality. Canadians don’t like the idea of someone being told not to say what they think. We are sympathetic to those who have been victimized by the government. And when the government tells us something shouldn’t be read, our curiosity makes us want to read it even more. Those values are fundamental to a healthy democracy—but they work directly against the idea of using censorship to fight hate.

This is why I’m frustrated to hear cases like Whatcott described as “striking a balance”. I’m all for finding the right balance between competing goods. But there’s no competing goods to balance here. Censorship is bad for freedom of expression, and bad for the promotion of equality. When both sides of the scale tip the same way, it isn’t balance—it’s the scale falling over.

Kevin Kindred is a Halifax-based lawyer and activist. While he works with a number of queer groups, the opinions expressed here are his alone.

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