The Hate Speech Diversion

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

|



chapter 10

THE HATE SPEECH DIVERSION

Richard Moon1

A. INTRODUCTION

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-