The Hate Speech Diversion

Abstract

Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech regulation has a principled basis. There are many committed libertarians who regard hate speech as odious but are nevertheless prepared to defend the right of others to engage in it. Their opposition to the restriction of hate speech rests on a commitment to individual liberty sand a concern about the reach of state power. While I think the civil position is mistaken, it is not without merit. What is perplexing though is the extraordinary energy that these advocates of free speech put into the fight against hate speech regulation. They seem convinced that the integrity of the free speech edifice depends on holding the line here. Yet they seem indifferent to the more significant ways in which freedom of expression is being eroded in Western democracies. Whether by design or not, the obsessive opposition to hate speech regulation diverts our attention away from more fundamental free speech issues concerning the character and structure of public disclosure, and more particularly the domination of public disclosure by commercial messages and the advertising form. But, of course, these are not issues that can be addressed by the courts, except in indirect ways, and that may partly explain the lack of attention they receive.In recent years the critics of hate speech regulation in Canada have focused on human rights codes 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 critics are opposed to any form of hate speech restriction and human rights code regulation is simply the battleground on which they have chosen to conduct their fight. But there is another dimension to the attack on human rights code regulation of hate speech. Much of the recent criticism of such regulation seems designed to undermine the entire human rights system. In their criticism of this regulation, they spend more time talking about the corruption and incompetence of human rights institutions than about the value of free speech. The logic of their (unfounded) claims of corruption is that these institutions have no legitimate role and should be abolished. Their claims are rooted in a more general libertarian view that state power is inherently oppressive and corrupt.In this chapter, I will say something about the current state of hate speech regulation in Canada, before looking more closely at the attack on human rights laws and institutions, and the resonance these attacks have had in the mainstream media.