Hate speech is explained as hatred towards an individual or groups on the grounds of characteristics of race, gender, sexual orientation, ect. Hate speech concerns those who believe in the right of freedom of expression and speech. This paper seeks to explain that people should be more mindful of what impacts their words have on people. While limiting the freedom of expression is not an efficient way to prevent people from commiting hate speech, placing limitations on freedom of expression can prevent psychological and emotional harm to other vulnerable groups such as racialized and gendered groups. Using insights from Canadian Charter, Mill’s, feminsit theory, and critical race theory it can uncover how the law works to control our freedoms as individuals.
Hate speech has been around for some time now. It’s seen as a core of many news channels and court cases. One court case in particular caused a rift between freedom of expression and hate speech. More specifically between Gays and Lesbians. In Saskatchewan Human Rights Commission v. Whatcott 2013, a man by the name William Whatcott published some flyers on the behalf of the Christian Truth Activists, and distributed these flyers to various home mailboxes in Saskatoon and Regina in 2001-2002. Out of the various homes Whatcott had distributed, four people filed complaints to the Saskatchewan Human Rights Commission because the flyers consisted to have promoted hate against people because of their sexual orientation. These four people filed under the violation of s. 14(1)(b) of the code. After all that was done, the applicant agranged a Tribunal to hear the complaints. After the Tribunal was concluded the flyers were said to have violated the Code. Mr. William however did not agree to the appeal and argued that he was only exercising his right to freedom of expression along with freedom of religion and that the flyers he had made did not violate the Code. The court then held that it does not matter whether the expression that is issued was religiously motivated or not, if it is seen objectively, it still exposes these vulnerable groups to hatred and vilification, and that the religious expression is seen to be part of the hate speech prohibition. In the final run, the Court concluded that two of Whatcott’s flyers violated the hate speech prohibition. The Court upheld the Tribunal’s remedy relating to the two flyers that violated the Code and that Whatcott was not allowed to distribute such flyers ever again.
Similarly, in R. v. Keegstra, Mr. James Keegstra, a Alberta high school teacher shared several negative comments about the Jewish community. He said Jewish people were evil and that they had evil qualities and expressed his doubt to the events of the Holocaust ( R v Keegstra, 1990). He was charged under Section 319(2) of the CCC for promoting hatred towards an identifiable group and for making anti-Semtic comments to his students. He however, objected to the claims and said that on the grounds of Section 319(2), it infringed his right to freedom of expression under section 2(b) of the CCFR (R v Keegstra, 1990)
He was charged with willfully promoting hatred towards an identifiable group. It was said that the “word “willfully” imports into the offense a stringent standard of mens rea which significantly restricts the reach of section 319(2) to buy necessitating the proof the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence (R v keegstra, 1990). To which Keegstra had objected on the grounds that it infringed his freedom of expression. The Court unanimously concluded that the hate speech propaganda formed part of the protected freedom right expression and that hate propaganda is a form of expression. The outcome of the case was Remanded for Decision in Accordance with Ruling, Law or Action Upheld.
Freedom of speech joined the other fundamental freedoms in The Constitution in 1791, along with the freedom of religion, the right to press, and right to assemble. People needed to satisfy not their own necessities or beliefs but the communities as well. Since this was the ideology which led to the freedom of speech, the laws could have been seen not as protected as they were today as a lot had changed. In the Charter of Rights and Freedoms under section 2b it says that “everyone has the following fundamental freedoms […] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (CCRF, 1982, 2b). These rights are protected from all levels of government and authoritarian elites. Everyone from gender, race, and class. The freedom of expression and speech became a huge issue as individuals started to use this freedom to exercise their thoughts and violate the rights of the people, especially the rights of gays and lesbians. In the Whatcott case, William Whatcott had created flyers that had hateful and degrading comments towards Lesbians and Gays. William Whatcott in his perspective had done nothing wrong because he was expressing his views and beliefs and in doing so he had hurt other people which inturn caused him to pay the price for exercising his freedom.
In Beverley Mclachlin, Charter Myths reading, talks about the myths surrounding the bestowed individual rights in Canada, along with myths that the Charter produced absolute rights that such authorities cannot violate such as the Parliament and the Legislature. Mclachlin says, “ Long before the Charter, Canadians enjoyed the right of free expression. In practice, a wide variety of expressions was tolerated without legal sanction. Governments by and large did not circumscribe what individual Canadians said or wrote (Mclachlin, 1999, p, 25). Even with such high regards to the freedom of expression and speech governments along with other authorities are able to find ways to override these rights of individuals and see that what is said should only come out as the greater collective good of others. These collective goods sure save others from having their rights saved, but what about the person who only wanted to express his/her views about not liking the way gays and lesbians acted in public. In a way, finding ways for the outcome to not be so violent can be better for everyone as it would allow all to be able to express their values and beliefs without getting the law involved.
Freedom of expression and of speech is one that can be used to not only hurt other individuals or groups but can also hurt the person trying to express his or her own views. John Stuart Mill for example has made many mistakes and flaws in his research and thoughts, a deeper flaw in his ways of thinking about freedom. Mill talks about the ‘Harm Principle’ in his reading, On Liberty, in which he says “That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, 1859, p.151). In this it can be seen that even if an individual is to express his views he is taking away others liberty to be. He also says “If anyone does an act harmful to others, there is a prima facie case for punishing him by law” (Mill, 1859, p.151). While protecting the individuals and their rights, this approach does keep the peace between the community but at the cost of making people see each other as irritating limitations to their desires, such as people who are offended by hate comments against Gays and Lesbians made by an individual. For example, if freedom is fundamentally a person’s liberty to do or say what they like, if they do not violate others rights and freedoms, then that person becomes at best a limitation, or at worst, a threat to the freedom of the person expressing their views. Essentially, people should not have to limit their views, but they should limit their way of expressing them and disagree with each other in a respectful manner.
In an article by Keith N. Hylton, Implications of Mill’s Theory of Liberty for the Regulation of Hate Speech and Hate Crimes, Hylton argues that Mill’s views on the regulation of freedom of speech and expression are in fact creating less diversity of personal views and decrease in society’s knowledge on the issues surrounding such topics. He argues that by putting limitations on the views of people it creates an atmosphere of incivility and tension, he says that “free speech is necessary because […] it fosters a society with diverse points of view […] as a result, ultimately increase society’s knowledge” (Hylton, 1996, p. 37). Limiting the freedom to express the views we have can essentially cause the world to be more corrupt because then there will be more violent acts being messaged due to not being able to express and exercise our own views. Hylton adds onto Mills views as he says that in essence people do not know the truth of most issues and they labor the wrong views which in turn causes people to have different ideas. He says “Mill’s argument for free speech consists of two core propositions. First, free speech is necessary because it exposes false ideas. According to Mill, we do not know what is ‘the truth’; instead, at any moment, we labor under a series of hypotheses about what might be the truth (Hylton, 1996, 36). The truth can be beyond what measures but just because someone is speaking out about something they are against and that hurts someone or some people, it does not mean that they should be prohibited from speaking their truth and mind. It is easy to convict someone for saying something offensive but it is not easy to find ways to limit the outcome of that person’s values and beliefs.
In Who’s afraid of the Critical Race Theory by Derrick A. Bell, outlines the current race related issues that minorities in the U.S face. Bell explains that racism not only harms targeted groups and individuals, but also hurts most of the population. He believes that people should protect racism with integrity, he defines critical race theory as “critical race theory can be identified as such not because a random sample of people of color are voicing a position, but rather because certain people of color have deliberately chosen race-conscious orientations and objectives to resolve conflicts of interpretation in acting on the commitment to social justice and antisubordination” (Bell, 1995, p. 901). Bell is an advocate for racism and speaks out about how the world revolves around a white supremacy. Bell, otherwise known as ‘The Father of critical race theory’, believes that the ‘whites’ continue to display disproportionate power and enjoy higher standards of living. Bell also talks about the problems between speech and positioned perspectives, he says the “problem is that not all positioned perspectives are equally valued, equally heard, or equally included. From the perspective of critical race theory, some positions have historically been oppressed, distorted, ignored, silenced, destroyed, appropriated, commodified, and marginalized-and all of this, not accidentally” (Bell, 1995, p. 901). Bell explains that not everyone speaks freely as they should be allowed to, that people get shut off because what they say offends others and therefore it disregards their rights to express and project their views.
Similarly, in Eric Barendt book Freedom of Speech, Barendt expresses his views on how speech is a freedom that is a natural right, he argues that if authorities were to put limitations on the freedom of speech and expression people who hold true beliefs will be constricted to speak out and challenge to defend their views. He also argues that racial identity is essentially an element of individual human dignity, he says “speech challenging conventional views concerning the meaning of race and of the importance of membership of racial groups should be allowed an aspect of free public discourse” (Barendt, 2005, p. 33). Racial discrimination against a targeted group can be harmful but what is overlooked is that the person making these comments is also losing thier rights. If the legislature was to put absolute limitations on the rights of freedom of expression and of speech there will be no confidence left in the justice system, because people who are being targeted for speaking out on their views and expressions they will always believe that the justice system is only going to side with the people who were harmed and spoken out about and not those who tried to express how they feel towards a group or individuals. Barendt also says that “even if it is admitted, as it should be, that the proscription of, say, extreme hate literature may violate the freedom of speech racists, based on the rights to be treated with equal respect and concern, it is surely equally clear that the publication of such material may infringe the dignity rights of its victims. There is, then, no alternative to balancing freedom of speech and dignity in the context of the particular fact” (Barendt, 2005, p.34). It is important to take into consideration that by shutting someone off from expressing their views on certain topics and individuals that the authorities are also violating the rights of the speaker. It is certain that what the speaker has said is considered as hate speech like in the Whatcott case it is important to note that the person expressing their views also has rights. By not putting limitations on the freedom of expression and of speech, but limiting the outcomes of an individual’s words directed towards a group or individual it can be made more accessible to be able to express our own views along with proven to be less harmful towards the targeted groups.
Femenist theorist however, believe that feminists can easily be persuaded by the law and how law exercises its power to the extent to which that it withstands and disqualifies the alternative accounts of social reality. Likewise Carol Smart talks about the similar view point in her reading The Power of Law. In the book, Smart tries to ‘de-center’ the law and to find ways to think of more ‘non-legal strategies’. She says “law manages to retain the ability to arrogate to itself the right to define the truth of things in spite of the growing challenge of other discourses like feminism” (Smart, 1989, p.4). Smart is a femenist and believes that instead of feminists putting all their energy and focus on changing the law that they should instead try to interpret the legal domain as it exposes and rises challenges to gendered constructions of women’s experiences. As we individuals often turn to law to find solutions to personal dilemmas, Smart explains that ‘‘discourage a resort to law as if it holds the key to unlock women’s oppression’’ (Smart, 1989, p. 5). Women as species on this planet had not gotten their rights to be and work in certain areas as men did. Now with their rights they are allowed to own their own property and earnings, as she is no longer dependent on her husband for all that. She does what she wants and goes where she wants without limits to do so. But, if the rights to freedom of expression and of speech were to be limited, women would still be subjects to their husbands as they would no longer be able to speak out and talk about the oppressions they have to go through by being held as only their husbands wife and not a name for themselves. By putting limits on the freedom of expression and of speech women would be pushed under the radar and no longer be able to enjoy their rights to be and speak out what they are against.
Women have also been seen to contradict the law as they have been convicted of speaking out about the control men had and still have over them and their right to live and work. In Rethinking Free Expression in the Feminist Classroom: The Problem of Hate Speech by Nancy C. Cornwell explains that speech should be valued because “ speech and the practice of free speech is a social activity and inextricable from the system of social relationships that shape individuals. It is part of the collective activity of social life” (Cornwell, 1998, p. 113). Speech inevitably is a right that needs not to be limited as it expresses people’s views and people are able to express what they feel. In feminst terms, the main challenge to hate speech made by feminst and other theories explain how feminst critiques can reassemble the focus on the framework of hate speech. Cornwell says “ Feminist scholars who consciously engage social, gender, and racial inequities cannot ignore the inherent inequity present in the abstract notions of individualism, freedom, autonomy, and equality associated with liberal theory” (Cornwell, 1998, p. 111). Women were not able to speak out and change the law back when men dominated society, when everything revolved around men and their abilities not the womens. By putting absolute limits on the freedom of expression and speech women would have to travel back in time to when they were controlled by the law and were not considered ‘persons’.
In Toni M. Massaro reading Equality and Freedom of Expression: The Hate Speech Dilemma, Massaro discusses the approaches that allow hate speech in order to maximize the opportunities for individual expression and regeneration of the culture. Massaro says “many worry that regulation of hate speech will lead to regulation of other forms of offensive and confrontational speech, like flag burning or other political expression” (Massaro, 1991, p. 215-216). By putting regulations and ful limitations on the freedom of expression and speech it would not only silence public expression but also would silence political and cultural expression. Politicians at best, need to express their views on something they do not like and talk about how those things or people are disrupting the communities. By putting limitations on Expression and speech it would silence political views and even some cultural expressions. Massaro also points out that hate speech proponents argue that we can define hate speech in a more sensible and just manner (Massaro, 1991, p. 217). All in all, with all evidence shown it should be enough to understand that by limiting the freedom of expression and of speech it can decrease revolutionary possibilities, not only would people not be able to express their views openly but they would be convicted if they do.
In conclusion, free speech can be seen as a building block of our human dignity and rights which improves and progresses with us. Free speech not only lets us speak our mind but also allows us to learn and evolve based on exchanging ideas. During when the amendments were being added to the constitution, the first amendment stated that everyone has the right to liberty, all people had freedom of religion, speech and press. The first amendment is the reason people can express their ideas even if they are different from others. It is important to note that instead of limiting the freedoms of expression and speech, we should limit the outcome of the speech and of our expressions. Make it so that what comes out is not seen to be too harsh or targeted towards a specific gender or racialized group. Thus, using perceptions from the Charter, Mill, feminsit theory, critical race theory and all other evidence presented, it can be seen that limiting these fundamental rights would cause a lot of implications and more chaos than ever, but by finding ways to limit the outcome can help prevent the psychological and emotional harm done on targeted groups.