Alan Borovoy Make the Distinction Between Hate Words and Deeds 30-Aug-1995

Alan Borovoy Make the Distinction Between Hate Words and Deeds 30-Aug-1995

"Although not absolute, free speech is the life blood of the democratic system. It is the vehicle by which aggrieved people can mobilize public support in their quest for redress." � Alan Borovoy

Make the distinction between hate words and deeds

by A. Alan Borovoy
General Counsel
Canadian Civil Liberties Association

At a recent conference of governmental human rights commissions, the theme was how they should deal with expressions of hate. Increasingly, these commissions have been attempting to use their coercive powers to muzzle racist, sexist, and homophobic speech.

In my view, this represents a questionable priority. I believe the commissions have more important work to do.

Consider, for example, inequity in employment. At the moment, complaints of job discrimination comprise more than 70% of certain commission case loads. Despite years of human rights legislation, 1990 government reports reveal sizeable wage gaps particularly between white and non-white men.

Moreover, a recent survey conducted by the Canadian Civil Liberties Association (CCLA) found that, of 1200 retail jobs examined in Sudbury and Sault Ste. Marie, only 3 were held by aboriginal people. Yet there is a significant number of aboriginal people in those communities who are fully qualified for such retail jobs.

Little of this material contains evidence of blatant bigotry. Yet the covert inequities connected with these employment practices is likely causing more harm to minorities than is the overt invective used by hate-mongers. In my view, human rights commissions should be less concerned about radicals who hate than about moderates who don't hire.

There is another reason for caution about the attack on expressions of hate: the importance of free speech. Although not absolute, free speech is the life blood of the democratic system. It is the vehicle by which aggrieved people can mobilize public support in their quest for redress. Injustice is not as likely to endure in an atmosphere of free public debate.

Significantly, legal curbs on hate often backfire. The reason for this is the impossibility of devising a prohibition so precise as to nail genuine expressions of hatred without imperilling a lot of other speech. The criminal code, for example, makes it unlawful to wilfully promote "hatred" on the basis of race, religion, or ethnicity. But "hatred" is a vague notion. We know that free speech is sometimes most important when it expresses strong disapproval. Where does strong disapproval end and "hatred" begin? Not surprisingly, this anti-hate provision has been used against a variety of legitimate activists and materials: anti-American demonstrators, French-Canadian nationalists, a film supporting South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, and Salman Rushdie's Satanic Verses. Although these cases ultimately cleared the speech in question, the harassment certainly caused damage. Legitimate free speech is not viable when those who engage in it have to worry about facing legal sanctions. Moreover, there is no way to know how often people have censored themselves because they feared such sanctions.

In the past, I frequently urged human rights commissions not to be prissy about testing the limits of their jurisdiction. Faced with unacceptable discrimination, I often believed it was better to lose a case than not even to attempt one. But, where freedom of expression may be the casualty, I believe in restraint. In my view, human rights commissions should not try to use their coercive powers against mere expressions of opinion, no matter how offensive those expressions are. (But, even if commissions should not attempt to legally censor such speech, they might nevertheless publicly censure it. Social pressure is one thing; legal sanction is another.)

Of course, coercion is validly used against speech that is an integral part of an unlawful discriminatory policy. A job advertisement that says "no blacks need apply" may involve speech but there, the speech is connected to the act. While such distinctions will not always be easy, it is important, at least, to ask the right questions.

Human rights commissions should direct more vigour against discriminatory deeds and observe more restraint against discriminatory words.

Originally published on the Canadian Civil Liberties Association web site at www.ccla.org/pos/columns/hrc.shtml

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