Why Words Matter: SCC Affirms Need for Hate Speech Protections
The Supreme Court today issued a unanimous decision in Saskatchewan (Human Rights Commission) v. Whatcott, found here.
A series of human rights complaints were filed against William Whatcott under the Saskatchewan Human Rights Code for various flyers that he had been distributing in the community, expressing his dismay at the presence of “sodomites,” “filth and propaganda,” and “buggery” at local schools. Mr. Whatcott sought to challenge the constitutionality of the human rights complaints, arguing that they were incompatible with his Charter right to freedom of expression. A right that Mr. Whatcott believes in so fervently, by the way, that when in Ottawa for his Supreme Court hearing in 2011, he sought to distribute flyers throughout the Ottawa community, as reported here.
While striking down a portion of the Human Rights Code, the Supreme Court has otherwise upheld the validity of the hate speech provision in the Saskatchewan Human Rights Code, and in so doing, reminded us of why these protections remain useful. As expressed by Justice Rothstein:
“Hate speech is, at its core, an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. When people are vilified as blameworthy or undeserving, it is easier to justify discriminatory treatment. The objective of s. 14(1)(b) may be understood as reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity.”
On the same day as the Whatcott decision, Ottawa has also learned that its new basketball team will not be named the “Tomahawks,” as originally announced yesterday. After a storm of public criticism about cultural appropriation and the racist connotations of the proposed name, the basketball team’s owner has issued a swift apology and a promise to provide a new name. At a press conference, the owner admitted: “Even posing the question of whether it’s racist or not racist, in my mind that’s enough to say, ‘You know, that’s not going to be a positive impact in our community’.”
The very concept of hate speech allows us to explore and debate why speech is offensive, what impact discriminatory words have on our society, and whether there are more positive means of naming and categorising things in our lives. It took ten years for William Whatcott to understand the offensive meaning of the words that he distributed in his community. It took Ottawa’s new basketball team one day. Let’s hope that the Whatcott decision lends us more speed and care in recognising where our words continue to fail.
I have read through this decision. While I applaud the goal of protecting those vulnerable in our society from the harmful actions of others, it seems there are some practical limitations in determining what is hateful.
Looking at paragraph 41 words that create “disdain” for a targeted group are ok, but words that create “enmity and extreme ill will” cross the line. In practical terms, what’s the difference?
Yes… the SCC decision provides a narrow understanding of hate speech, but I am glad the SCC considers Human Rights Code provision on hate speech is still relevant in today’s society and still address very major and unrelenting issues such as opinions and expressions that continue to expose a group to hatred.
It will be hugely difficult to decide when any particular remarks are hateful in the sense of the statute. Everything that people don’t like is thrown into this bucket. The authors here imply (I think) that calling a civic sports team the Tomahawks is equivalent in law to what Mr Whatcott did in his anti-homosexual pamphlets. I would have thought that the former would clearly be legal, or not violate a ‘hate speech’ prohibition, though it may well be in poor taste or otherwise undesirable.
How much does the motivaiton of the speaker matter? Mr Whatcott’s language was fairly graphic, but the sincerity of his religious beliefs – and their accuracy as an expression of what he believes – was not in doubt. It is a central part of many religous belief systems that people who do not share the belief are condemned to an eternity of very painful damnation. Is it hate speech to point that out? How direct can one be in pointing it out?
It’s one thing to incite violence aganst people. That can be detected fairly readily. It is harder to ban saying that people’s conduct is undesirable or should not be accepted in our society.
I respect but remain unpersuaded by the court’s reasoning in this decision. On the one hand the court has justified its decision on the basis of harmful effects that hate has for society but on the other has set the bar very high for what constitutes exposing people to hate. Those whose expression rises to the level to trigger the statute are already marginalized by society and thus the impact of their expression is minimal. Those who actually have wide enough circulation to cause harm to society with hateful expression won’t meet the standard for hate. I see a disconnect there.