Don’t outlaw hateful speech, counter it

TheStar.com – Opinion/Editorials – The province of Ontario should be very careful as it pursues the hate-speech case against Kevin Johnston. His views are despicable, but the coercive power of the state may not be the appropriate remedy.
Aug. 4, 2017.   By

Kevin Johnston, the failed Mississauga mayoral candidate and enthusiastic online troll, is well known for his vitriolic anti-Muslim rhetoric, which he spews in a steady stream on social media. In recent months alone he has fomented fear about Muslim prayer at Peel schools, opposed the construction of a mosque in Meadowvale, and baselessly protested Parliament’s anodyne anti-Islamophobia motion, M103, as a threat to free speech.

Last October, a website co-owned by Johnston published a hateful screed aimed at Mississauga Mayor Bonnie Crombie. The article claimed that Crombie is trying to convert the city’s residents to Islam so “they can kill her son just for being gay.” Crombie understandably filed a hate-crime complaint. Now Johnston has been arrested by Peel police and charged with hate speech under the controversial Section 319 of the Criminal Code.

The province should be very careful as it pursues this case. Johnston’s views are despicable, but the coercive power of the state may not be the appropriate remedy. Indeed, such an intervention may end up not only undermining our freedom, but also feeding the very hate it seeks to snuff out.

The never-ending debate over hate-speech laws turns in this case as always on the question of harm. The great liberal philosopher John Stuart Mill rightly argued that essential to an open, democratic society is “the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” When such views are suppressed, he argued, they inevitably percolate up and manifest in yet more destructive ways.

But Mill also understood that there must be limits to speech rights, which he described in his so-called Harm Principle: essentially, the only justification for constraining expression is to prevent harm to others.

It would be silly to pretend that there’s no harm caused by toxic statements like those contained in the attack on Crombie, that such speech does not at least cause emotional pain and at worst create an environment out of which violence might arise. Nor is it self-evident how much harm is necessary before the state should intervene.

But the article in question, which does not appear to be a direct threat of violence or an incitement to it, does not seem to meet the bar. We do not yet know what speech Johnston is being charged for, but if indeed it is this article, the case is cause for concern.

An open, democratic society ought to impose the fewest restrictions possible on free speech. Canada’s Criminal Code, which is tough on anyone who “willfully promotes hatred” against identifiable groups, is arguably overbroad in this respect. Hate-mongers run the risk of spending up to two years in prison, even absent any evidence of intent or direct harm.

The Supreme Court ruled in 1990 that the provision offends our Charter rights, but held by the narrowest 4-3 margin that the infringement is justified by the protection it provides to vulnerable groups. At the time the Star lamented the ruling, seeing the law as an obnoxious blow to free speech just to still the tongues of a few bigots.

In 2011, that decision was reaffirmed in the case of William Whatcott, an anti-gay activist who distributed flyers calling gays “sodomites,” denouncing their conduct as filthy and likening them to pedophiles. Whatcott was ultimately fined $7,500 for his putrid campaign.

The Canadian Civil Liberties Association intervened in that case on Whatcott’s behalf, arguing that the language of the law was so vague and subjective that it could inhibit people from expressing even deeply held religious beliefs.

Now, that organization’s Ontario chapter has published an online petition calling on Attorney General Yasir Naqvi to withdraw the charges against Kevin Johnston and urging Ottawa to strike the hate-speech provision from the Criminal Code entirely.

The organization makes the classic liberal case. “No one in Canada should be jailed or criminally prosecuted for thoughts, inferred attitudes or speech, in the absence of proven intention to have demonstrably caused actual harm to an identified person,” the group writes.

They are right to be concerned about the vagueness of the law. Yet while the threshold for criminalizing speech ought to be limited and as precise as possible, we do need a threshold. As the Star has long argued, any speech that advocates, justifies or threatens violence, for example, should be against the law.

In recent years, the always-fraught free-speech debate has evolved into something yet more fraught, weaponized by those who want to create more room for hate. Those who invoke free speech every time they are rebuked for a hurtful opinion deviously conflate free expression with expression without consequence. Those, meanwhile, who celebrate every hater and bigot as a champion of free speech conflate hate with freedom in a way that does profound damage to both society and their professed cause.

These disingenuous critics serve as a reminder that while protecting free speech is of utmost importance, so, too, is addressing the attendant harms. The right to free expression comes with a responsibility to counter bad and dangerous ideas, whether through a collective commitment to education or the use of the political bully pulpit. The state, and in particular our political leaders, must protect free speech, while also making sure to expose hate for what it is, and certainly never pandering to it.

Mill had the foresight and wisdom to understand that allowing hate in the public square carries risks, but more dangerous still is trying to bury it. Listening to people like Kevin Johnston is among the least pleasant costs of living in a free society. But freedoms come with responsibilities, too. We should be cautious in prosecuting Johnston and his ilk, but we should do all we can to denounce his views and ensure they are exposed as the bile they are in a healthy marketplace of ideas.

https://www.thestar.com/opinion/editorials/2017/08/04/dont-outlaw-hateful-ideas-counter-them-editorial.html

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