When Speech Hurts: Conflicting Freedoms

AuthorColleen Sheppard
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
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

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