The Hate Speech Diversion

• Author: Richard Moon
• Profession: Professor of law at the University of Windsor
• Pages: 279-302

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chapter 10

THE HATE SPEECH DIVERSION

Richard Moon1

A. INTRODUCTION

I am surprised sometimes by the fervour with which some individuals

oppose all form s of hate speech regu lation. In a few cases, t he opposition

to hate speech restriction is simply a more palatable way of defending

hate speech — the message it carries. Hate mongers have found it stra-

tegically useful to present themselves as defenders of free speech. The

shift f rom advocate of hate to defender of free speech 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 speech regulation has a principled 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 the restriction of hate speech rests 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 speech put into the ght against hate speech regula-

tion. They seem convinced that the integrity of the free speech edi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].

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richard moon

hate speech reg ulation diverts ou r attention away from more fund amen-

tal free speech issues concerning the character and structure 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 can be addressed by the courts, except in indirect 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 human rights code restrictions. Some critics are opposed

not to hate speech regulation per se but only to this form of restriction.

Their concern is that the human rights process is poorly suited to the

regulation of hate speech. I count myself among this group. Other crit-

ics are opposed to any for m of hate speech restrict ion and human rights

code regulation is simply the battleground on which they have chosen

to conduct their ght. But there is another dimension to the attack on

human rights code regulation of hate speech. Much of the 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 criticism of this regulation, they spend more time talking about

the “corruption” and “incompe tence” of human rights inst itutions than

about the value of free 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 want to be careful about attributing 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 themselves.3 I say this not just because of their indierence 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-