Freedom Number One
REE SPEECH desirable though it may be, is not a naturally occurring phenomenon. People simply do not like to listen to attitudes they deem offensive. Even liberals (we use the word here in its old fashioned sense), are often tempted to bend the rules of free discourse to shut up some obnoxious racist or misogynist. We argued in our editorial of Jan. 4, however, that in the long run, the benefits of free speech outweigh the costs of offensiveness.
Not everyone agrees. Like many other scholars, Warren Kinsella, whose reply [not posted] appears on the opposite page, argues that expressions of hatred should be legally prohibited. Fair enough. But Mr. Kinsella goes farther than the average liberal (we revert here to the modern meaning). He argues our editorial amounted to a "whitewash" of the hate merchants targeted by Canadian censorship. To make this point, however, he quoted the editorial far too freely.
For instance, the National Post did not say that all laws against promoting hatred and genocide were "potentially sinister" and "authoritarian and illiberal". We wrote that a proposed amendment forbidding defendants to cite truth as a defence was "potentially sinister" -- and so it is. And we said that it and other proposals for broadening hate-speech laws could be put to "authoritarian and illiberal purposes" -- and so they can. Indeed, as we pointed out, current law has been put to the authoritarian and illiberal purpose of forcing the mayor of Fredericton to mouth opinions with which he disagrees.
Canada's hate-speech jurisprudence is built around two Supreme Court of Canada decisions: One upholding a federal hate-speech law as applied to Alberta Jew-hater, James Keegstra; the other partially affirming a tribunal's finding against Nova Scotia anti-Semite Malcolm Ross. Mr. Kinsella claims we described their views as "ideas". In fact, we prefaced "ideas" with "evil" and "offensive". But while we have nothing but contempt for the views of Messrs. Ross and Keegstra, it is clear that the legal cure to which they were subjected is worse than the disease with which they were diagnosed. It is "extraordinary" in a country with constitutional guarantees of free speech that a court can order someone not to express his opinions. For the moment, the banned opinions are those of a tiny and despised minority; that may not always be the case.
Thus, Mr. Kinsella dismisses recent American legal decisions expanding free speech by stating that in the United States "racial tensions remain proportionately worse than anywhere else on the planet". Really? Worse than Rwanda? Or Bosnia? Or Indonesia? One hesitates to imagine the purposes to which a ruthless prosecutor could put this ethnic slur.
Oddly for a lawyer, however, Mr. Kinsella seems never to have heard the legal tag: Hard cases make bad laws. Censorship may be intended to suppress only those who express the most vicious and wicked views. But in the end, it may be enforced against those whose views are merely offensive to the majority. That is a cure worse than the illness -- though it may also aggravate the illness. History demonstrates that an enforced orthodoxy always lends a martyr's nobility and a dissident's cachet to its heretics. The case of hate speech is no different.
Copyright © 1999 by Southam, Inc. All Rights Reserved. Reprinted with permission.