Ultra Vires


How I Learned to Start Worrying and Love Hate Speech Laws

Adin Wagner (2L)


When my first year Constitutional Law class covered the right to freedom of expression, the hate speech laws under s. 319 of the Canadian Criminal Code gave me pause. The heated class discussion that followed our reading of the case law demonstrated the divisiveness of the issue. As I saw it, while s. 319 is intended to protect human rights and fight discrimination, it still represents government-sanctioned censorship. The Supreme Court of Canada held that the law represented an infringement on freedom of expression—albeit a justified one.


My issue with the laws was simple. The phrase used in s. 319—“wilfully promotes hatred against any identifiable group”—is necessarily broad. That being the case, its enforcement is potentially subject to the whims of those in charge.


As a Jew, whose grandparents survived the Holocaust, such power of censure coupled with discretion makes me incredibly nervous. Large-scale censorship was an integral part of the propaganda campaign launched by Joseph Goebbels and the Nazi Party in the lead up to, and during, World War II. Despite the drafters’ good intentions, I worried about how these hate speech laws would manifest themselves if co-opted by malevolent leadership. As we debated the merits of s. 319 in class, I argued that the value of protecting freedom of expression outweighs the short-term gains of limiting that right in order to combat discriminatory speech. We must protect ourselves from the ultimate evil rather than just the one directly facing us.


I was wrong.


Recent political and cultural events have exposed the naiveté of my former opinion. Neo-Nazis and white supremacists marched in Charlottesville, Virginia, in August, and swaths of demonstrators in Warsaw carried banners making their case for a “white Poland” on November 11, Poland’s Independence Day.  


Instead of dismissing these movements as fringe, we must recognize that hatred is present and people are working to normalize ideas of racial purity. It is also clear that America’s absolutist conceptualization of freedom of expression enables such groups in their goal. The American Civil Liberties Union (ACLU) actually represented the organizer of the rally in Charlottesville, David Kessler, when he was in danger of having his permit revoked. David Cole, national legal director of the ACLU, defended the representation of Kessler, arguing that protecting any speech is imperative to “preserving these avenues for advancing justice and preserving democracy.” Cole opined that this is especially important in the era of President Donald Trump. But his position ignores a key question: how was Donald Trump elected in the first place?


A convincing argument could be made that there would be no President Donald Trump if not for the proliferation and normalization of xenophobia. In his article, “The First White President,” Ta-Nehisi Coates argues that, based on Trump’s statements, policy, and rhetoric, Trump was elected president by way of his whiteness. Coates puts it frankly: “If you tallied the popular vote of only white America to derive 2016 electoral votes, Trump would have defeated Clinton 389 to 81, with the remaining 68 votes either a toss-up or unknown.


The issue is not Trump in and of himself, but rather that he tapped into the racial resentment that had been percolating long before he ran for office. Herein lies the reason for my change of heart: the Canadian hate speech laws are meant to curtail the very unrest that Donald Trump appropriated and exploited.


The alt-right, the far-right movement at the heart of the rally in Charlottesville, has largely recruited through social media and online forums. In her viral Twitter thread from 2016, writer Siyanda Mohutsiwa outlined how white nationalist online groups find young white men and indoctrinate them by “radicalizing their sexual frustration into bigotry.” Mohutsiwa’s assertions are affirmed by the statistics: as of 2016, followers of white nationalism movements on Twitter have increased by about six hundred percent since 2012, according to a study from George Washington University. The study further found that these online movements were pointed and organized, as the activities were “primarily carried out by a highly interconnected network of users drawing on common themes.”


In contrast, the Canadian hate speech laws have been used to limit the speech of Nazis online. Human rights lawyer Richard Warman infiltrated neo-Nazi forums and brought successful complaints under s. 13 of the Canadian Human Rights Act against those posting hate propaganda online. These cases, however, were not without controversy, and s. 13 was later repealed after the legislature found it to be ineffective and overreaching.


What we are left with now is the criminal provision regulating hate speech. But many critics, including Warman and various liberal politicians, rebuke this provision for being toothless. Under the repealed s. 13, any citizen could file a human rights complaint, but criminal charges for hate speech require the Attorney General’s approval. Moreover, Warman argues that “there is an institutional reluctance to lay these charges.” There have recently been criminal hate speech charges laid against the pro-Nazi newspaper Your Ward News, but that was still only after a “years-long effort” by a human rights coalition urging that step to be taken. Perhaps in response to such criticisms, the Supreme Court of Canada has stated that our hate speech laws are effective as symbolic touchstones of tolerance and multiculturalism.


That may be the case, as white supremacists have certainly been less politically visible in Canada as compared to America. But the same fear that made me hesitant to initially embrace the hate speech laws now pushes me to argue for a more stringent application. In the past, I was able to dismiss anti-Semitic speech as less threatening than that of ultimate censorship. However, as xenophobia continues to infect the political and cultural discourse, it’s become clear that I had underestimated its effect.


I am a Jew and there have been Nazis marching in the streets of the country bordering mine. It is no longer about principles, it is about pragmatics. Effectively applied hate speech legislation is the best path to stemming the tide of their bigotry.

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