The Hate Speech Diversion

AuthorRichard Moon
ProfessionProfessor of law at the University of Windsor
chapter 10
Richard Moon1
I am surpr ised sometimes by t he fervour w ith which some ind ividuals
oppose all form s of hate speech regu lation. In a few cases, t he opposition
to hate speech res triction is simply a more palatable way of def ending
hate speech — t he message it carr ies. Hate mongers have found it st ra-
tegically u seful to present t hemselves as def enders of free spee ch. The
shift f rom advocate of hate to defender of free speec h ts well with t he
hate monger’s self-understa nding as a vic tim of state oppression a nd a de-
fender of Western values aga inst multicultu ralism. More often, thoug h,
the opposition to hate s peech regul ation has a princ ipled basis. There
are many comm itted civil lib ertarian s who regard hate speech as o dious
but are nevert heless prepared to defend the right of ot hers to engage in
it. Their opposition to t he restric tion of hate speech res ts on a commit-
ment to individu al liberty and a concern a bout the reach of state power.
While I th ink the “civi l libertar ian” position is mist aken, it is not without
merit. What is p erplexing though i s the extraordin ary energy th at these
advocates of free sp eech put into the g ht against h ate speech regu la-
tion. They seem convi nced that the i ntegrity of t he free speech e dice
depends on holding t he line here. Yet they seem indierent to t he more
signica nt ways in which freedom of ex pression is being eroded in West-
ern democracies. W hether by design or not, the obsessive opposit ion to
1 Richard Moon i s a professor of law at the Unive rsity of Windsor. Th is chap-
ter draws on Ric hard Moon, “The At tack on Human Rig hts Commissions
and the Decl ine of Public Disco urse” (2010) 73 Sask L Rev 93 [Moon].
richard moon
hate speech reg ulation diverts ou r attention away from more fund amen-
tal free s peech issues concer ning the ch aracter and s truct ure of public
discourse, a nd more particularly the dom ination of public discourse by
commercial mes sages and the adverti sing form. But, of course, t hese are
not issues that c an be addressed b y the courts , except in indi rect ways,
and that may pa rtly explain t he lack of attention they rece ive.2
In recent years t he critics of hate speech regul ation in Canada have
focused on huma n rights code re striction s. Some critics are opp osed
not to hate speech reg ulation per se but on ly to this for m of restrict ion.
Their concern is t hat the huma n rights proces s is poorly suited to the
regulation of h ate speech. I count mys elf among th is group. Other cr it-
ics are opposed to any for m of hate speech restrict ion and human rights
code regulat ion is simply the batt leground on which t hey have chosen
to conduct their g ht. But there is anot her dimension to the attack on
human rig hts code regul ation of hate speech. Much of t he recent criti-
cism of such regu lation seems designed to u ndermine the enti re human
rights sy stem. Critics such as Ezra Le vant and Mark Steyn have foc used
on hate speech reg ulation as the most vu lnerable part of that sys tem. In
their crit icism of thi s regulation , they spend more ti me talk ing about
the “corruption” and “incompe tence” of human rights inst itutions than
about the value of fre e speech. The logic of t heir (unfounded) claims of
“corruption” is that t hese institutions have no leg itimate role and should
be abolished. The ir claims are rooted i n a more general liberta rian view
that state powe r is inherently oppressive a nd corrupt.
Let me add a caution here. I wa nt to be carefu l about attri buting a
clear politica l outlook to Levant, Steyn, a nd other critics. It often seem s
that they a re interested less in advanci ng a political agenda tha n in pro-
moting them selves.3 I say this not just because of thei r indiere nce to
2 For a discussion, see Ric hard Moon, The Cons titutional Protect ion of Freedom
of Expression (Toronto: Universit y of Toronto Press, 2000).
3 Levant and Steyn wer e each the subject of a hu man rights compla int. A
complaint wa s made to the Alber ta Human Rig hts Commission aga inst
Levant, a nd the Western Standard, follo wing his public ation of the “Danis h
Cartoon s.” Complaints agains t Steyn and Maclean’s magazine were m ade
to the Ontar io Human Right s Commission (Ontar io Commission), the BC
Human Rig hts Tribunal (BC Tribu nal), and the Cana dian Human R ights
Commission (CH RC), following publicat ion by Maclean’s of an excerpt from
Steyn’s book America Alo ne (Washington, DC: Re gnery Publis hing, 2006).
The complain t against Stey n was dismiss ed by the CHRC and did not g o
to adjudicat ion. The BC Tribunal d ismissed the compl aint followi ng a
hearing. T he province of Briti sh Columbia abolished it s human right s com-

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT