More censorship or less discrimination? Sexual orientation hate propaganda in multiple perspectives.

• Author: Cohen, Jonathan

If hate propaganda pits anti-censorship advocates against anti-discrimination advocates, sexual minorities occupy an ambiguous position in this debate. Because they often find themselves fighting against censorship--and have, at least in the United States, made more gains in this area than in that of equal protection--sexual minorities have traditionally promoted strong freedom of expression values. However, recent advances in jurisprudence interpreting the Canadian Charter of Rights and Freedoms, particularly the inclusion of sexual orientation as an analogous prohibited ground for discrimination under section 15, have prompted sexual minorities to pursue a vigorous anti-discrimination agenda. This agenda recently culminated in the Supreme Court of Canada's decisions in Vriend v. Alberta and M. v. H., which, by reading sexual orientation into a provincial human rights statute and extending spousal support to same-sex couples, provide considerable authority for extending Canada's Criminal Code hate propaganda provisions to sexual minorities. At the same time, a growing body of comparative and international law--in particular the United Nations Human Rights Committee's recent decision in Toonen v. Australia--has extended the norm of anti-discrimination to sexual minorities. These developments, combined with Canada's well-established commitment to criminalizing hate and its emerging commitment to substantive equality, suggest that sexual orientation hate propaganda is best analyzed as an issue of discrimination, not censorship. This conclusion should commend the extension of hate propaganda measures to protect sexual minorities to even those gay rights activists who dread further incursions into civil liberties.

Les minorites sexuelles occupent une position ambigue dans le debat sur la propagande haineuse, qui oppose les partisans de mesures anti-censure a ceux de mesures anti-discrimination. En effet, parce qu'elles doivent souvent defendre leur propre liberte d'expression et ont, surtout aux Etats-Unis, connu dans ce domaine des succes plus significatifs que dans celui de l'egalite de protection, les minorites sexuelles se sont faites les defenseurs de la liberte d'expression. Les progres recents de la jurisprudence sous la Charte canadienne des droits et libertes, dont l'inclusion de l'orientation sexuelle au nombre des motifs analogues de discrimination prohibee, ont toutefois mene ces minorites a faire de la lutte judiciaire contre la discrimination une priorite. Leur action mena a des resultats concrets a travers les decisions de la Cour supreme du Canada dans Vriend c. Alberta et M. c. H., qui supportent par une autorite considerable l'extension des dispositions du Code criminel portant sur la propagande haineuse aux minorites sexuelles. Le droit compare et international--en particulier la decision du Comite des droits de l'Homme des Nations Unies dans Toonen c. Australie--permet egalement de constater un elargissement des normes anti-discrimination aux minorites sexuelles. Ces developpements recents, s'ajoutant a l'engagement du Canada a criminaliser les manifestations de haine et a celui, plus recent, a proteger le droit a l'egalite, menent a la conclusion que la propagande haineuse reliee a l'orientation sexuelle doit etre analysee en termes de discrimination plutot que de censure. Cette conclusion devrait mener meme les activistes homosexuals qui craignent les limitations aux droits de la personne a supporter l'extension des mesures contre la propagande haineuse afin de proteger les membres des minorites sexuelles.

Prologue: The Third Wave

1. The Victim's Perspective

2. Sanctions against Sexual Orientation Hate Propaganda

   1. Criminal Sanctions B. Other Provisions

3. An International Perspective

4. A Comparative Perspective

5. Strategic Dilemmas

   1. Freedom "of" or Freedom "from"? B. A Hierarchy of Claims?

6. Options for Reform

   1. Challenging the Criminal Code B. Revisiting Group Defamation

   Conclusion: Towards a Model of Holistic Advocacy

   Prologue: The Third Wave

   WASHINGTON, DC--The bulletin board of the Matthew Shepard Online Resources Web site ... was shut down Monday as a result of a coordinated attack by thousand[s] of anti-gay fans of pro-wrestler Mick Foley. Foley's supporters, angered that the slain student was winning a Time magazine online poll for "Man of the Year" ... overwhelmed the board with a continuous onslaught of anti-Shepard and anti-gay messages, requiring the site to be temporarily shut down. "On the same day Matt's more announced the Matthew Shepard Foundation, thousands of wrestling fans descended onto my site to belittle Matt's death and attack gay people," said John Aravosis, ... who has been managing the site since Shepard's attack and death. "They wrote 'AIDS kills fags, and so do I', and called Matt 'faggot', 'little queer', and 'Dead Homo of the Year'. It was absolutely sickening" ... (1) North America is undergoing a "third wave" of hate propaganda, the first having been the rise of anti-Jewish and anti-Black hate propaganda in the 1960s, and the second the expansion and prosecution of those efforts in the 1970s and 1980s. (2) The third wave is characterized by the dissemination of cyberhate, the expansion of target groups, and the corresponding rise in hate crimes directed at women and members of minority groups. (3) The interplay of these three trends is poignantly illustrated by the above news release, which describes how Web-savvy bigots sought to drown out public sympathy for Matthew Shepard, the University of Wyoming student who was brutally tortured and left to die because he was gay. After days of hate-filled postings, several regular visitors to the site begged the systems operator to dismantle the bulletin board, effectively destroying an online community of activists and mourners. (4) In a twist of irony, the so-called "marketplace of ideas" functioned to silence members of a vulnerable minority.

   Despite its promises of "electronic democracy", the information superhighway too often collapses into Darwinian struggles such as this one. Chris Gosnell writes, "It is a paradox that a medium with almost limitless potential for fostering diverse forms of social exchange across traditionally impermeable boundaries and borders, may also create and antagonize those divisions." (5) Indeed, even though Canadians are supposedly protected from hate promotion through a variety of criminal and administrative sanctions, messages like the one above are currently protected by the Constitution of the United States, no matter where they are transmitted. (6) In light of this protection, it may be somewhat optimistic to suggest that expanding Canada's sanctions would reduce sexual orientation hate propaganda. As I shall argue, however, such expansion may be a necessary first step in combatting this proliferating form of vilification.

   The idea of expanding of Canada's anti-hate laws to protect sexual minorities has recently attracted legislative attention at both the federal and provincial levels. In October 1999, NDP member of Parliament Svend Robinson introduced a private member's bill (7) that would expand the definition of "identifiable group" respecting hate propaganda in the Criminal Code (8) to include "any section of the public distinguished by ... sexual orientation." (9) The impetus behind Robinson's bill was, among other things, the anti-gay hatred generated by the Kansas-based Reverend Fred Phelps. (10) Phelps, whose message of hatred and homophobia is widely available on the Internet, gained notoriety in Canada when he threatened to stage an anti-gay demonstration on the front lawn of the Supreme Court. (11) Along with specific attacks such as those directed at Matthew Shepard, Phelps's invective represents a growing body of hate propaganda aimed at silencing and persecuting sexual minorities and inciting violence against them.

   Given the difficult questions of censorship and discrimination raised by this issue, my aim is to examine the prohibition of sexual orientation hate propaganda from a variety of perspectives: those of the victim (Part I), Canadian legislation (Part II), international law (Part III), other jurisdictions (Part IV), and the strategic advocate (Part V). These multiple perspectives will facilitate a legal analysis of Canada's approach to sexual orientation hate propaganda (Part VI). I shall conclude by reflecting on the importance of a holistic approach to this important issue.

1. The Victim's Perspective

   Does it really matter that the debate over free speech appears to become more heated when it is the free speech interests of those in a dominant group that are at stake? I think if is a phenomenon to which we should pay close attention. (12) The pureness of ... legal categories ... collapses under the experiences of lesbians and gay men. (13) The harm inflicted by sexual orientation hate propaganda defies traditional legal categories such as libel and defamation. Critical race theorist Mari J. Matsuda explains that just as the harm caused by racist speech cannot be analyzed apart from the structural reality of racism, so the harm caused by sexual orientation hate propaganda must begin with an analysis of homophobia. (14) Matsuda refrains from conducting such an analysis, however, claiming that it "require[s] a separate analysis [from racist speech] because of the complex and violent nature of gender subordination, and the different way in which sex operates as a locus of oppression." (15) This task is partially performed by William B. Rubenstein, former director of the American Civil Liberties Union Lesbian and Gay Rights Project. He focusses on the way in which idealizations of heterosexual love operate to silence--or "closet"--people who violate these roles. (16) According to Rubenstein, lesbians, gay men, bisexuals, transgendered persons, and

   transvestites (to whom I refer collectively as "sexual minorities" (17) disappear from the media...