When Speech Hurts: Conflicting Freedoms

• Author: Colleen Sheppard
• Pages: 131-148

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When Speech Hurts:

Conf‌liing Freedoms

Sticks and ones may break our bones, but words will break our hearts.

— roBert fuLghum,

aLL i reaLLY need to Know i Learned in Kindergarten, 19881

   an elderly gay man, living with your partner in a

quiet residential neighbourhood in Saskatoon. When you check the

morning mail, you f‌ind anti-gay f‌lyers in your mailbox, which have

been distributed by a group called the Christian Truth Activists. The

f‌lyers, which depict your sexual orientation in very negative terms,

upset your sense of belonging and well-being, and make you fear-

ful that you may even be at risk of violence. This is what happened

to James Komar.2 Other Saskatchewan residents also received the

anti-gay f‌lyers in their mail, and four individuals (including Komar)

decided to f‌ile complaints under the Saskatchewan Human Rights

Code, which prohibits discriminatory public speech that “exposes or

tends to expose to hatred.”3 Although they won their case before the

Saskatchewan Human Rights Tribunal,4 the Christian Truth Activ-

ists appealed to the courts on the question of whether the prohibi-

tions on hate speech in the Saskatchewan Human Rights Act violate

freedom of expression and religion in the Canadian Charter of Rights

and Freedoms. One way of understanding this case is to view it as

a conf‌lict between equality rights and freedom of expression. How-

ever, before we accept this way of framing the issue, it is import-

ant to think about alternative ways of understanding the dilemma

Discrimination stories

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at the heart of this case. Rather than understanding it only in terms

of a conf‌lict between rights and freedoms, we could recognize that

it is also a conf‌lict between two freedoms — the freedom to live in

this world without fear of violence or hate, versus the freedom to

say whatever you want, even if it causes fear or harm, or is hate-

ful. We discussed the idea of equitable freedom in Chapter 5, and

here we can extend it to include not only freedom from sexual vio-

lence, but also from violence more generally. Conceptualizing this

story of hateful f‌lyers in terms of conf‌licting freedoms means that,

no matter the outcome of the legal challenge, someone’s freedom is

undermined. Rather than recognizing only one freedom and fram-

ing the analysis as one of “freedom” versus “equality,” it seems more

accurate to understand the dilemma as one involving equality and

contested freedoms. Human rights laws should endeavour to protect

equality, and in so doing also protect freedom equitably.5

In this chapter, we examine what I call “harmful speech” to draw

out the idea of equitably balancing conf‌licting freedoms. Harmful

speech is an umbrella term that includes overlapping types of speech,

such as “hate speech,” “dangerous speech,” and “discriminatory hurt-

ful speech.” Legal responses to harmful speech must consider the

contexts within which speech occurs, power dynamics between the

speaker and audience, and an understanding of why people engage

in hateful speech. Beyond legal responses, we might also imagine a

world where individuals take care to recognize the impact of their

words and to speak in ways that do not intentionally cause harm.

How Speech Hurts

Harms to Individuals and Groups

There are two main types of harm experienced as a result of speech.

The f‌irst is actual physical violence against the targeted group; the

second is the psychological and emotional ef‌fects of speech on the

targeted group. In one of the leading criminal cases on hate speech,

R v Keegstra, Chief Justice Dickson recognized both types of harm.6

The case involved a high school teacher who engaged in repeated