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Published online by Cambridge University Press: 20 July 2015
This paper argues: (i) Canadian “Hate Speech Laws”, and similar laws in other jurisdictions, are instances of ‘unilateral censorship’, the suppression of a single political viewpoint. (ii) Unilateral censorship infringes upon the democratic commitment to free and fair elections. (iii) The legislated exclusion of some from the political process through the control of speech means that Canadian governance is best described as ‘logocratic’. (iv) It may be possible to mount a new “Charter Challenge” to Hate Speech laws invoking Section 3 of the Charter, based on the idea that unilateral censorship infringes upon Section 3 guarantees of free and fair elections, and eligibility to run for Canadian legislative bodies. (v) The envisioned challenge differs significantly from previous Charter Challenges because what is at issue are not the liberty rights of citizens in a democracy, but the democratic process itself.
* (Cambridge: Cambridge University Press, 2007). ISBN: 0-521-86476-3 (hardback). All references to this work are given in parentheses in the text.
I would like to thank Tyler Field, Brian Garrett, Elisabeth Gedge, Matt Grellette, Mike Hinds, David Rondel, Wil Waluchow and an anonymous CJLJ referee for helpful feedback.
1. Sumner, Wayne, “Hate Propaganda and Charter Rights” in Waluchow, W.J., ed., Free Expression: Essays in Law and Philosophy (Oxford: Clarendon Press, 1994) 153 Google Scholar, [Sumner, “Hate”]; Dwyer, S., “Free Speech” (2001) 2 Sats: Nordic J. Phil. 1 CrossRefGoogle Scholar [Dwyer].
2. Mill, J. S., On Liberty (Indianapolis, IN: Hackett, 1978).Google Scholar
3. Sumner, “Hate,”supra note 1; Dwyer, supra note 1; Fish, Stanley, There ‘s No Such Thing as Free Speech … and it’s a good thing too (New York: Oxford University Press, 1994).Google Scholar
4. Scanlon, Thomas, “A Theory of Freedom of Expression” (1972) 1 Phil. & Pub. Affairs 204 Google Scholar; Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977)Google ScholarPubMed [Dworkin, Seriously]; Nagel, Thomas, “Personal Rights and Public Space” (1995) 24 Phil. & Pub. Affairs 83 CrossRefGoogle Scholar; Dwyer, supra note 1.
5. Dworkin, Seriously, ibid. at 364.
6. Dworkin, Andrea, Pornography: Men Possessing Women (London: The Women’s Press, 1981)Google Scholar. MacKinnon, Catharine, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987) [Mackinnon]Google Scholar; Langton, Rae, “Whose Right? Ronald Dworkin, Women, and Pornographers” (1990) 19 Phil. & Pub. Affairs 311 [Langton]Google Scholar; Matsuda, Mari, “Public Response to Racist’s Speech: Considering the Victim’s Story” in Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment , Matsuda, M. et al., eds. (Boulder, CO: Westview Press, 1993) [Matsuda]Google Scholar. For further assessment, see Brison, Susan J., “The Autonomy Defense of Free Speech” (1998) 108 Ethics 312 CrossRefGoogle Scholar; Cohen, Joshua, “Freedom of Expression” (1993) 22 Phil. & Pub. Affairs 207 Google Scholar; Sumner, Wayne, The Hateful and the Obscene: Studies in the Limits of Free Expression (Toronto, ON: University of Toronto Press, 2004)CrossRefGoogle Scholar [Sumner, Hateful].
7. In historical terms, this tradition of argumentation can be traced back through to Meiklejohn, Alexander, (e.g., Free speech and its Relation to Self-Government (New York: Harper and Brothers, 1948)) [Meiklejohn]Google Scholar. A detailed comparison with Meiklejohn is beyond the scope of this paper, so I will confine myself to a couple of points. First, the argument I make is a little more modest than Meiklejohn’s because I am not certain that all forms of censorship are incompatible with self-rule. Meiklejohn too allows certain restrictions on freedom of expression, but not in the same way. One of his innovative moves is to distinguish two types of liberty of speech: one that we enjoy qua sovereign and one that we enjoy qua subject. The government can legitimately infringe upon the latter, the former cannot. In this paper, I concentrate on political expression that falls under the liberty of the sovereign, and so one that Meiklejohn believes can never be restricted (at least in terms of content) by governments. A second major difference is that Meiklejohn examines what makes for good self-rule, whereas I am focusing on what is required for self-rule simpliciter.
8. Dwyer offers what appears to be a different classification of these issues, since under the heading of consequentialist arguments she includes this one: “representative democracies function best when their citizens have maximum access to information.... are able to participate in public debate to persuade and be persuaded by others...” supra note 1 at 1. This does seem to me to be a form of consequentialist reasoning. However, what I am proposing to examine here is not what might be effective in promoting democracy, but rather, what is required for democracy. In other words, part of what I propose to do here is to look at the preconditions for democracy, that is, to construct a transcendental argument that purports to demonstrate a logical connection between the notion of a free and fair vote and certain forms of free expression. I use ‘transcendental argument’ here in the broad sense delimited by Stern, Robert, “Introduction” in Transcendental Arguments: Problems and Prospects, Stern, Robert, ed. (Oxford: Oxford University Press, 1999).Google Scholar
9. Jurisdictions that have some form of hate speech laws include many European nations, Iceland Australia and New Zealand. In fact it is probably fair to say that this is the norm among those commonly labeled ‘liberal democracies,’ with the U.S.A. standing as a notable exception. Other issues of censorship that may be relevant to this argument include the censorship of pornography and “kiddie porn” ( Persky, Stan & Dixon, John, On Kiddie Porn: Sexual Representation, Free Speech and the Robin Sharpe Case (Vancouver, BC: New Star Books, 2001))Google Scholar.
10. I have taken ‘Rex’ and ‘Demos’ from Waluchow, Wil, A Common Law Theory of Judicial Review: The Living Tree (New York: Cambridge University Press, 2006).CrossRefGoogle Scholar
11. As noted, Meiklejohn, supra note 7, often argues that freedom of expression promotes good self-rule. Clearly, the argument here is consistent with Meiklejohn’s position, for it might be said that certain forms of censorship are logically compatible with democracy, but such forms of censorship do not make for a good democracy.
12. Synonyms, or at least closely allied notions for ‘unilateral’ censorship are ‘content’ censorship or ‘viewpoint’ censorship. I have departed from these more common terms in order to make perspicuous the contrast I have in mind.
13. We are assuming that this technology is much more reliable than the polling techniques we now have, which are notoriously less than 100% effective in predicting election outcomes.
14. Even if censorship had no effect on the total number of votes cast in any election, this is not necessarily the end of the matter. E.g., there still might be a question of whether those censored can legitimately claim that they are not being treated as political equals. See, for example, Christiano, Thomas, “Knowledge and Power in the Justification of Democracy” (2001) 79 Australasian J. Phil. 197 Google Scholar.
15. R. v. Keegstra, [1990] 3 S.C.R. 697 [Keegstra] Google Scholar.
16. 319(2) allows hate speech where “if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject.” Presumably this defence might be allowed. The obvious worry here is how the courts will understand “in good faith.” Could racists propagate their message so long as their screed begins with: “I believe that God wants us to …” followed by their racist message? The judicial decision in R. v. Andrews [1990] 3 S.C.R. 870 [Andrews] Google Scholar placed almost no weight on the religious arguments made by Andrews and his racist colleagues (see below).
17. Andrews, ibid.
18. The ‘Court’, of course, refers to the Supreme Court of Canada.
19. While I cannot pursue this issue, it might be thought that while exclusivists offer us reasons for their views, they are not “public reasons” in Rawls’ sense of the term ( Rawls, John, Political Liberalism (New York: Columbia University Press, 1996))Google Scholar, e.g., in the appeal to God’s racial designs. Depending on how we understand this doctrine, it may cast its net so wide as to be unworkable. (See Galston, William, “Diversity, Toleration, and Deliberative Democracy” in Deliberative Politics, Macedo, Stephen, ed. (New York: Oxford University Press, 1999).Google Scholar) But even so, at least some of the exclusivists’ reasons seem to make the “public reasons” standard. E.g., the putative correlation between race and crime, or the argument that racial homogeneity promotes economic success, seem to pass even a very narrow understanding of ‘public reasons.’
20. Andrews, supra note 16.
21. The Court acknowledges the importance of protecting political speech as a reason for the 2(b) Charter Right: Keegstra, supra note 15 at 49.
22. Whether it should privilege inclusivism is obviously a different question from whether it does privilege inclusivism. I am suggesting here that there is little reason to doubt that it does privilege inclusivism.
23. Keegstra, supra note 15.
24. It has been suggested that Rousseau believes that elections should take place in silence ( Urbinati, Nadia, “Representation As Advocacy: A Study of Democratic Deliberation” (2000) 28:6 Pol. Theory 758 CrossRefGoogle Scholar). It would be wrong to think, however, that Rousseau believed that citizens should never discuss political issues. Rousseau’s insistence of multilateral censorship is merely at the time of voting.
25. An obvious practical difficulty here is how to understand what is meant by ‘love’ in this connection. The term is potentially quite vague, but so too is the word ‘hatred’ in the original 319(2) legislation. Judicial opinion in Keegstra, supra note 15 was divided on the question of how problematic the vagueness associated with ‘hatred’ is, but the majority decision said that the vagueness was not so problematic to warrant striking down this legislation. Presumably any vagueness associated with ‘love’ would merit similar exculpation.
26. Sumner, Hateful, supra note 6.
27. They might spoil their ballot, but this is presumably a small consolation.
28. É, Élaine Hémond.. 2005. “Women’s Political Equality,” The Groupe Femmes, Politique et Démocratie Papers—Vol. 7, No. 2. www.femmes-politique-et-democratie.com/pdf/TJ_v017_n02_ en.pdf Google Scholar.
29. A helpful review of many of these cases can be found in Moon, Richard’s “Justified Limits on Free Expression: The Collapse of the General Approach to the Limits on Charter Rights” (2002) 40:4 Osgoode Hall L. J. 338 [Moon]Google Scholar.
30. Sumner, “Hate”, supra note 1, and Sumner, Hateful, supra note 6.
31. The Court often uses the word ‘contextual’ in a way that overlaps with this usage. For the Court’s understanding of ‘contextual’ see Moon, supra note 29.
32. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 Google Scholar.
33. Keegstra, supra note 15.
34. I would like to acknowledge very helpful feedback from the anonymous referee who showed me that the flexible view is much more plausible than I originally imagined.
35. The best defence I know of the flexible view can be found in Dworkin, Ronald’s, “What is Equality? Part 4: Political Equality” in Philosophy and Democracy, Christiano, T., ed. (New York: Oxford University Press, 2003) 116 Google Scholar, [Dworkin, “Equality”]. Unfortunately, Dworkin does not discuss the specific type of electoral inequality associated with unilateral censorship; rather, his primary example is disparity in voter numbers in electoral districts. I discuss Dworkin and the general debate between the flexible and constitutive conception of democracy in more detail in my paper, “Legislated Electoral Inequality: The flexible versus the constitutive conception of democracy” [unpublished] [Walker].
36. It is worth noting that the idea that democracy requires equality of voting power is hardly a modern innovation but can be traced back to Euripides’ Suppliants (See Raaflaub, K., “Democracy, Oligarchy and the Concept of the “Free Citizen” in Late Fifth-Century Athens” (1983) 11 Pol. Theory at 520 CrossRefGoogle Scholar). This conception of democracy (but not democracy itself) by a number of giants in the history of political philosophy, e.g., Plato, (The Republic, trans. by Cornford, F.M. in The Complete Works of Plato, ed. by Hamilton, Edith & Cairns, Huntington (Princeton, NJ: Princeton University Press, 1961) at 557a–b)Google Scholar; Aristotle, (Politics, trans. by Jowett, B. in Great Books of the Western World, Aristotle II (Toronto, ON: William Benton 1952) at 1317a–1317b13)Google Scholar; and Hobbes, (Hobbes, Thomas, Leviathan, ed. by MacPherson, C.B. (New York: Viking Press, Penguin Classics, 1982) at ch. 19)Google Scholar.
37. Christiano, Thomas, “Democracy” in The Stanford Encyclopedia of Philosophy, Zalta, Edward N., ed., http://plato.stanford.edu/entries/democracy/ (2006)Google Scholar.
38. Ibid.
39. For the view that it does, see Green, Philip & Cornell, Drucilla, “Rethinking Democratic Theory: The American Case” (2005) 36:4 J. Social Phil. 517 CrossRefGoogle Scholar.
40. Dworkin, “Equality”, supra note 35 at 120.
41. Indeed, the latter option is no longer entirely possible in Canada because the Court in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 Google ScholarPubMed struck down a law that took away the 3A right of some prisoners. The Court did not consider the 3(b) right in this judgment. What this means is that, for example, serial killers may have a greater share of political decision-making than we give to exclusivists. There is of course a long tradition of suggesting that certain persons should be excluded from the ruling function because their cognitive or moral faculties are childlike, e.g., this sort of justification was often used to exclude women and racial minorities from political participation. For instance, Rousseau and others thought that only men were capable of participating in political life: women lacked sufficient wisdom and the “manly virtues” ( Rousseau, Jean Jacques, Emile, or On Education, trans. with an into. by Bloom, A. (New York: Basic Books, 1979).Google ScholarPubMed
42. While Plato postulates three classes of citizens, two of them, the workers and the guardians, do not participate in political decision-making, a function reserved for the philosopher-kings.
43. I explore a third line of evidence in Walker, supra note 35 that stems from some well-known justifications for democratic governance, and for a justification for an obligation to obey democratic laws. The idea is to see what values democracy is connected with, that is, to understand ‘democracy’ purposively. Among influential views is Rousseau’s argument that equality in collective decision-making is necessary to ensure our freedom and our capacity to act morally ( Rousseau, Jean Jacques, The Social Contract, trans. by Cranston, M. (New York: Penguin Classics, 1968))Google Scholar. For similar arguments about the relation between democracy and character see Mill, John Stuart, Considerations on Representative Government (Buffalo, NY: Prometheus Books, 1991)Google Scholar; and Elster, Jon, “The Market and the Forum: Three Varieties of Political Theory” in Philosophy and Democracy, Christiano, T., ed. (Oxford: Oxford University Press, 2002) at 52.Google Scholar Another defence of democracy is based on considerations of justice ( Singer, Peter, Democracy and Disobedience (Oxford: Oxford University Press, 1973)Google Scholar; Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 2001)Google Scholar. Also relevant here is the traditional justification for political obligation in democracies, as seen in Locke for instance, which is that obligation is connected with the fact that citizens have had a say in the formulation of laws ( Locke, John, Two Treatises of Government, 3rd ed. by Laslett, Peter (New York: Cambridge University Press, 1988) at sec. 96)CrossRefGoogle Scholar.
44. Canadian Press, “Most Canadians say homophobia as bad as racism” http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1085347713661_139/?hub=TopStories (2004)Google Scholar. There is at least some good news from the same poll: most Canadians see homophobia as being as bad as racism.
45. MacKinnon, supra note 6; Langton, supra note 6; Matsuda, supra note 6.
46. Of course there are other possibilities here, such as the (controversial) idea of introducing harsher penalties for hate crimes. For reflection and dissent on this matter see Jacobs, James & Potter, Kimberly, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998)Google Scholar; Lawrence, Frederick, Punishing Hate: Bias Crimes under American Law (Cambridge, MA: Harvard University Press, 1999)Google Scholar.