My misgivings about hate-speech legislation and Human Rights Commissions go back to 1977. In those days such laws seemed progressive. Only a few considered that compelling liberalism may be illiberal.
In time, second thoughts and questions emerged. A National Post editorial published in January, 1999, viewed Canada’s hate-speech legislation as “potentially sinister” whose proposed new provisions “could be put to authoritarian and illiberal purposes.” I wrote that hate-speech laws were sinister by definition and could only be put to illiberal purposes.
Certainly John Stuart Mill thought so. He phrased his objection rather forcefully 150 years ago: “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it… We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and even if we were sure, stifling it would be an evil still.”
What is “hate-speech”? It’s speech the authorities hate. No doubt, it is often worth hating. It may be speech that every right-thinking person ought to hate, but it is also, by definition, speech that falls short of unlawful or tortuous speech — i.e., speech that’s fraudulent, defamatory, seditious, conspiratorial — for which a person could be either sued or charged criminally. Hate-speech legislation seeks to regulate speech that is not against any law — logically, since unlawful speech doesn’t need to be outlawed.
Here’s the paradox. Hate-speech legislation can only ban free speech. Prohibited speech is already banned.
People often say that freedoms aren’t absolutes and they’re right. Free expression is anything but “absolute” in free societies. It’s hemmed in by strictures against slander, official secrets, perjury, fraud, incitement to riot, and so on. The question is, should laws go beyond these strictures? And if they do, won’t they suppress opinion and creed in the end? The answer is yes. There is nothing else for them to suppress.
Repressive positions are difficult to defend for those who wish to keep their liberal credentials intact. They usually do so by quoting bits of pernicious nonsense from the kind of speech they would ban to illustrate how worthless and abhorrent it is. But pointing to the abhorrent nature of despised speech is insufficient because no speech is legislated against unless it’s abhorrent to some. Nobody outlaws Mary Poppins, not even the Human Rights Commissions (though this could be famous last words).
If suppressing opinion breaches axioms of liberalism, can it be justified by utility? Canadian defenders of hate-speech laws rarely offer any examples, other than the dubious benefit of distinguishing ourselves from Americans (one Human Rights-type called free speech an American concept in a recent court case) but one suggestion is that such laws would have stopped a Hitler.
The problem is, the Weimar Republic had such laws. It used them freely against the Nazis. Far from stopping Hitler, they only made his day when he became Chancellor. They enabled Hitler to confront Social Democratic Party chairman Otto Wels, who stood up in the Reichstag to protest Nazi suspension of civil liberties, with a quotation from the poet Friedrich Schiller:
“‘Late you come, but still you come,'” Hitler pointed at the hapless deputy. “You should have recognized the value of criticism during the years we were in opposition [when] our press was forbidden, our meetings were forbidden, and we were forbidden to speak for years on end.”
The Nazis would have been just as repressive without this excuse, but being able to offer it made Hitler’s task easier. Like Canadian supporters of hate-speech legislation, supporters of the Weimar Republic thought that their groups and causes would occupy all seats of authority and set all social and legal agendas forever. Shades of the Canadian Civil Liberties Association or the Canadian Jewish Congress! They couldn’t envisage the guns of their own laws being turned around to point at them one day.
Eradicating hateful ideas through free discourse is liberal; trying to eradicate them through legislation is illiberal. “There is always a chance that he who sets himself up as his brother’s keeper,” wrote Eric Hoffer, “will end up by being his jail keeper.”
Another thing: “Banned in Boston” sells tickets. As Victor Hugo put it: “The writer doubles and trebles the power of his writing when a ruler imposes silence on the people.” I’d think twice before banning neo-Nazis for this reason alone.
