Censorship, and the democratic 'right' not to be ignored
March 1, 2013 by Paul McKeever
Bill Whatcott says that homosexuality is an “abomination”, and that homosexuals are “sex addicts” that have “sick desires”. He says that teaching children tolerance and acceptance of homosexuality in our public schools will cause children to die early, and will subject us all to God’s wrath. The Bible tells him so, and he likes to quote it in his pamphlets opposing the promotion of tolerance and acceptance of homosexuality in our public school curricula.
A couple of days ago, the Supreme Court of Canada issued its decision in the case of Saskatchewan (Human Rights Commission) v. Whatcott (hereinafter referred to as the Whatcott decision). It said that if we say things that cause others to laugh at Bill and other Christians because of their Christian beliefs, the court will not allow the government to punish us. If we write things that cause others to look down their noses at Bill and his fellow Christians for their beliefs, no problem, they’ve got our backs. We can even say things that cause people to engage in an affront to the dignity of all Christians, and the court will stand on guard for thee and me. But if we say anything true or false that is likely to cause people to hate Bill and other Christians then, whether or not we intended to cause others to hate Christians, the Court will look the other way if the government gags us and punishes us.
The court explained – as it has for years – that the guarantees of freedom set out in the Canadian Charter of Rights and Freedoms are actually guarantees of limited freedom; of freedom subject to limits that the Court thinks are reasonable in a free and democratic society. It explained that saying things that are likely to make others hate a given race, sex, religion, sexual orientation, or other “protected group”, deprives the members of such groups of their ability to participate fully in democracy. For that reason, the Court said, the Charter doesn’t prevent the censorship of “hate speech” concerning people having a given protected characteristic.
How does public hatred for a person cause the person not to be able to participate fully in democracy? The Court said that, when you are hated, it is easier to consider you less than human and easier for people to feel justified about discriminating against you. However, discrimination isn’t what makes the connection to democracy and ones ability to participate fully in it. To make that connection, the court essentially said that, when people hate you, they ignore your opinions:
“ Hate speech is not only used to justify restrictions or attacks on the rights of protected groups on prohibited grounds. As noted by Dickson C.J. at p. 763 of Keegstra, hate propaganda opposes the targeted group’s ability to find self-fulfillment by articulating their thoughts and ideas. It impacts on that group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Indeed, a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack. It does this not only by attempting to marginalize the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.
 To use an example related to the present case, the suggestion that homosexual conduct should not be discussed in schools because homosexuals are pedophiles requires the protected group to first defeat the absolutist position that all homosexuals are pedophiles in order to justify a level of societal standing that would then permit participation in the larger debate of whether homosexual conduct should be discussed in schools. In this way, the expression inhibits the protected group from interacting and participating in free expression and public debate.”
That’s the lynchpin of the decision. A member of a protected group has an implied democratic right not to be ignored, says the Court, so the Charter‘s high regard for democracy means that the Charter‘s guarantee of freedom of expression does not include the freedom to say things that are likely to make others hate a protected group.
The Court’s reasoning in this case does not pass my smell test. I say this because the Court also said that the Charter does protect your freedom to ridicule members of a protected group, to belittle them, or to otherwise affront them, because they are de jure members of the protected group. This implies that if I hate you, I will ignore your views and thereby deprive you of full participation in democracy, but if I think you are nothing but a laughing stock, that you are a mental or physical midget, or that you are worthy of insult, that will not cause me to ignore your views and will not deprive you of full participation in democracy.
With the greatest respect to the Court, that’s not the case. Personally, I think Bill Whatcott’s views on religion and homosexuality are worthy of ridicule. I think it is arguably appropriate that people belittle him because his Christianity has him spewing bile about homosexuals. I think saying things that his ilk would receive as a personal affront is probably a good thing, if we are to nip discrimination against homosexuals in the bud. I’ve certainly read ridicule, belittling comments, and other comments that Bill is sure to consider an affront to himself and other Christians. Who knows? Maybe that’s why I ignore his views. And, surely, such comments about Bill and his Christianity will cause and have caused others to ignore Bill’s views and the views of Christians concerning the political issue of whether homosexuality should be discussed as part of a public school’s curriculum. In other words: I do not believe that hate speech is any more likely than ridicule and belittling etc. to cause a protected group’s views to be ignored.
Accordingly, I do not believe that a doubtful loss of an ability to participate fully in the democratic process was the court’s real concern in respect of hate speech. Rather, connecting hate speech with democratic disenfranchisement gave it a way of exempting hate speech from the Charter‘s free speech guarantee. It was an intellectual and legal band aid.
So, what does the Court’s Whatcott decision really mean? Why did it carve a hate speech exception out of the Charter guarantee of freedom of expression?
The answer lies not in an alleged deprivation of democratic participation, but in a desire to ensure that the government can nip another Holocaust-like event in the bud. The Court said as much: “Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide”, said Justice Rothstein.
Consider this. Germany’s Jews were not placed in concentration camps because people thought they were laughing stocks: those who laugh at Bill Whatcott when he is ridiculed have no desire to see Bill starving in a prison camp. Germany’s Jews were not gassed to death because people belittled Jews: those who look down their noses at Bill nonetheless have no desire to see him or other Christians burned in ovens. No, Germany’s Jews were expropriated, enslaved, and murdered after people were told that Jews were not human beings, but something that harms human beings and society. Those among the Germans who wanted Jews to be expropriated, enslaved, or murdered considered it an act of justice, and hating the Jews and dehumanizing them made it easier for them to convince themselves that the expropriation, enslavement, and murder of Jews were acts of justice. So, in case Canada should ever be so unfortunate as to see a group emerge that tries to convince Canadians that some group of people is less than human – that they are, say, monkeys and pigs (see the Qu’ran) – and that they should be expropriated, enslaved, or murdered, the Court wants to ensure that such a group’s views are not only ignored, but entirely unheard.
The court, in a nutshell, does not really want to ensure that no person is democratically disenfranchised. To the contrary, it wants to ensure that the government is free to democratically disenfranchise.
That is not to say that the Court calls upon the government to silence anyone. To the contrary, the Court made it clear that censorship is just one possible way in which such dehumanization might be prevented. The Court acknowledged that another alternative is not to ban hate speech, and to instead subject toxic ideas and statements to the full, bright, and purifying light of reasoned debate. Indeed, within Canada, not all Human Rights Codes contain a censorship provision akin to that which appears in Saskatchewan’s Human Rights Code. For example, to a certain extent, Ontario takes this “marketplace of ideas” approach, and does not prohibit hate speech, per se (though it does ban discrimination and harassment with respect to services, accommodation, and employment). Nonetheless, the Court wants the Ontario government, and others, to encounter no constitutional barrier should they ever decide to resort to the governmental gag.
Being an advocate of truth and reason, I think that is worse than unfortunate. It leaves all Canadians vulnerable to those who would seize governmental power, and use the power to censor as the means of silencing a pro-freedom opposition. The Court’s Whatcott decision serves to ensure that, should another group of National Socialists or Taliban emerge and seize the reigns of government, they will be free to silence their intended victims.
After all, as noted above, a movement does not need to make people hate others in order to win the reigns of power: getting people to elect you is not nearly so difficult as getting people on-side with expropriation, slavery and murder. As political strategist Saul Alinsky once wrote in his book Rules for Radicals:
“Rule 5: Ridicule is man’s most potent weapon. It’s hard to counterattack ridicule, and it infuriates the opposition, which then reacts to your advantage.”
That is quite true, yet the Court has declared that, unlike hate speech, speech that ridicules a protected group is fair game. It isn’t necessary for, say, a pro-theocracy political party to make the public hate some group or another. If it wants to democratically-disenfranchise some group – if it wants to make sure that people ignore the group’s political opinions – all it needs to do is ridicule the group until the public has no interest in listening to its views. And, once it seizes the reigns of power in government, the party can continue to ridicule and disenfranchise its opponents and enemies while simultaneously banning as “hate speech” any words critical of the very religion pursuant to which they champion theocracy and seek the end of freedom and democracy. The Court has now made it clear, remember, that speech that is likely to make people hate a “religion of peace” and its adherents can be censored without fear of a constitutional barrier.
Think that ridicule is not sufficient for a party to democratically-disenfranchise its opponents or enemies? Try leading a new political party that advocates individual freedom and capitalism in a province that holds up a government monopoly on health care as the hallmark of goodness. If the media does not exclude you from debates and news coverage during an election, it will (with some honourable exceptions) profile you alongside small parties who believe in such things as yogic flying, group you together as “fringe parties”, and have a good laugh at your expense. The intended effect: a feeling, among the readership, viewership, or listenership, that the views of all parties not currently in the legislature safely can be ignored. In other words: political disenfranchisement, of the very kind the Court suggests the law is so concerned about…concerned, that is, except when, for example, it deals with a case in which a political party is seeking inclusion in a leaders debate televised on taxpayer-funded channels.
The Take-Home Message for Freedom Advocates
Reverend Martin Luther King Jr. once stated that: “We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ ”. When considering the Charter and the Court’s Whatcott decision, we would all be wise to remember those words.
The law is a man-made tool. It can be made to justify anything, whether or not in accord with the facts of reality, with reason, or with morality. In can be interpreted such that hate speech is deemed to make me ignore your opinions, while ridicule is deemed nonetheless to leave me listening to and valuing your opinions. In practice, the law is quite malleable; too malleable ever to qualify as the source or defender of freedom. The court’s decision in Whatcott should stand as an illustration of that fact, for all advocates of individual freedom.
In truth, all that stands at the foundation of enduring freedom is reality, reason, and rational morality. When governmental decision making is founded on evidence rather than superstition, when it is logical instead of being a consensus of whims, and when it serves the purpose of ensuring that every individual peacefully can pursue his own happiness, as human nature requires, then – and only then – will our laws serve to defend freedom, rather than to outlaw it.