Matthew Lau: Liberal hate speech bill an unnecessary, bureaucratic attack on free expression

On Wednesday, the Liberal government tabled a bill to reintroduce hate speech provisions into the Canadian Human Rights Act. It will be illegal, if the bill is passed, to communicate hateful speech in a way that is “likely to foment detestation or vilification of an individual or group.” Under the hate speech provisions, journalists, bloggers, and social media users — in fact, almost everyone who writes anything on the Internet — would be liable, if anyone complains that their speech is hateful, to be investigated by bureaucrats for committing human rights violations and forced to pay reparations.

 

All reasonable people agree, of course, that stirring up hatred against someone or some group of people is very bad, but unfortunately, these sorts of hate speech laws are rife with pitfalls. There is, first of all, the moral hazard problem. Similarly to how extravagant government welfare programs discourage people from earnestly searching for jobs, entitling people to financial reparations if they complain about hate speech creates the possibility that some people will originate complaints even when they are poorly founded, since the complainants do not face any downside financial risk.

 

 The Liberals are effectively reviving Section 13 of the Human Rights Act, which, before it was repealed by the previous Conservative government, was most infamously used by complainants to launch a human rights investigation into Maclean’s magazine for publishing an allegedly hateful excerpt from Mark Steyn’s book — a top Canadian bestseller — in 2006. The complaint was eventually dismissed by the Canadian Human Rights Commission instead of being referred to the human rights tribunal, but seeing Maclean’s forced to justify its publication decisions to the government, under threat of censure, alarmed many Canadians, who correctly saw Section 13 as an infringement on free speech. In fact, in 1999, Stephen Harper said that human rights commissions’ activities amounted to “totalitarianism.”

 

 Perhaps to allay concerns about censorship, the government says that “speech that expresses dislike or disdain, or that discredits, humiliates, hurts or offends” is not considered hate speech and so would not be illegal. But what is the difference between speech that expresses hatred and speech that merely expresses dislike? In a society governed by laws, people should be able to know whether something is lawful before they do it. With this proposed hate speech law, people instead will find out after the Canadian Human Rights Tribunal reaches its decision whether their speech was illegal or not. This process does not inspire confidence, especially since under Section 13, there were secret trials, and until one case in 2009, the tribunal’s conviction rate over a period of three decades was 100 per cent.

 

From moral hazard and censorship concerns to inordinately unbalanced conviction rates, the hate speech provisions seem to have many downfalls. What are the benefits? If the goal is to protect people from hatred, the bill is poorly designed. Laws already exist to prevent hateful speech and acts of violence, so in such cases the hate speech bill is duplicative and unnecessary.

 

Meanwhile, the new bill has some lapses in logic. Some grounds for hatred, such as such as race, colour, religion, age, sex, disability, and sexual orientation, are prohibited, while many others are not. So under this regime, Jones would be guilty of hate speech if he stirs up hatred against Smith on the basis that he is white, or male, or 68 years old, but not if he stirs up hatred against Smith on the basis that he is a dentist, drives a pickup truck, or is a member of a bowling team. What is the logic for this differential treatment?

 

Mathematician and philosopher David Berlinski has made a similar point about hate crimes. “Very often, an attack will be promoted in seriousness on the grounds that the person doing the attacking was hateful,” he said in 2019. But should it matter why the person was hateful, or even that the person was hateful at all? “Suppose that he was attacking and he was suffused with a loving sense. He just simply wanted lovingly to club someone into the urine-stained pavement.” Then, Berlinski asked, “Would that be a lesser crime?”

 

The severity of the crime of clubbing someone into the urine-stained pavement, or even into perfectly clean pavement for that matter, should be based on the harm that results from clubbing someone into the pavement. The grounds of the attacker’s hatefulness, or even whether he was hateful at all, should not make a material difference: it is the clubbing that causes injury, not the hatred, and the clubbing victim should receive equal protection whatever the motivations of the attacker. Similarly, if the goal is to protect Smith from hate speech, it is illogical to give differential treatment to different motivations for the hatred, or to prevent speech that does not cause material harm.

 

While stirring up hatred against people is clearly very bad, the bill seems to have very limited benefits in terms of efficiently curtailing such deleterious incidents. Indeed, Canada’s previous experience with Section 13 suggests that this Liberal initiative will cause many more problems than it will solve.

 

Source: National Post