A LIBERAL JUSTIFICATION FOR NARROWING THE PUBLIC INTEREST DEFENSE TO HATE SPEECH
[☛ read the author’s reply here]
I thoroughly enjoyed reading Professor Moon’s book on the dilemmas posed by the intersection of hate speech and religious speech (Putting Faith in Hate: When Religion Is the Source or Target of Hate Speech (2018)). It would make for too boring of a comment, however, if I were simply to focus on all the ways in which I agree with the author’s arguments. But there is one particular point Professor Moon makes which I think gets at the dilemma of hate speech, particularly when it comes to questions involving minorities and minority religions, particularly, Muslims and Islam: Sec. 319’s “public interest” defense to hate speech. As Professor Moon has pointed out, courts have regularly been willing to find what otherwise might be classified as “hate” speech to be protected speech in contexts where the issue is a matter of live political controversy and therefore a proper matter of political deliberation. While Professor Moon focuses on cases involving homosexuality to make this point, there are also a few cases involving Muslims that he discusses.
Sec. 319(1) proscribes the incitement of hatred against any identifiable group likely to lead to a breach of the peace, and Sec. 319(2) proscribes the wilful promotion, other than in the context of a private conversation, of “hatred against any identifiable group.” Sec. 319(3), however, provides several substantive defenses to Sec. 319(2), including, proof of the statement’s truth; the statement was made in good faith, including, the elaboration of a view based on a religious text, in the context of stating a religious opinion or doctrine; and, “if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true.” As Professor Moon has shown, the more subtle, if not less destructive for that reason, anti-Muslim writers such as Mark Steyn are easily available to deflect charges of hate speech by pointing either to the first or third substantive defenses under Sec. 319, and for that reason, it would be inconceivable that criminal charges would be brought against them, even if they are extremely successful in promoting widespread social prejudice, if not outright hatred, toward Muslims and Islam.
There is little doubt that there are many legitimate issues involving the public interest intertwined both with certain normative Islamic teachings, and the practical problems that might be associated with rapid immigration of large numbers of Muslims to a society in which Islam is a relative stranger. One issue within normative Islamic teachings in which there might be a legitimate public interest is sexual freedom. Orthodox Islam proscribes sexual intimacy outside of a lawfully contracted, heterosexual marriage, and makes no provision whatsoever for homosexual intimacy. In this respect, Islam is no different than either mainstream Jewish or Christian teachings. This fact is unsurprising insofar as the Abrahamic religions generally seek to cultivate certain virtues in their followers, sexual restraint being one of the more prominent. It is also true that orthodox Islamic law, in theory at least, criminalizes, using corporal punishment, illicit sex between unmarried persons, and provides for capital punishment of married adulterers. Certainly, the content of the virtues promoted by religion, and what it condemns as vice, as Professor Moon states in his book, is rightly considered a matter of public concern, and so such positions cannot be insulated from public discussion, debate and critique. Indeed, from the perspective of the religion itself, insofar as it is a universal religion, it must be true that it deems questions of sexual ethics to be a matter of the public interest. It cannot be “hate speech,” therefore, to assert that Islamic teachings on sexual morality “contradict” the public value of sexual autonomy, for example.
To make the further claim that because normative Islam rejects a certain, post-1960s conception of sexual freedom, however, it is uniquely a “threat” to the public order is problematic. Such a claim transforms debate about one dimension of human life into an arena bearing existential significance, without any account of how a commitment to a particular conception of sexual freedom, for example, is constitutive of the very possibility of democratic life. In other words, there is no “proportionality” between the critique and the proposed policy that seeks, in at least some cases, to exclude Muslims and Islam entirely from the political community. The “hate” in this, and other contexts, arises not out of the critique of Islam as being sexually repressive, puritanical, or patriarchal, or that Muslims are sexually prudish. Rather, the speech ought to be deemed “hate” when it makes the claim that because Islam and Muslims “hold” these beliefs they constitute a threat to the public order, which is now being defined in terms of attitudes toward sex. The fact that sexual ethics is a matter of the public interest, however, ought not be sufficient to provide a defense against an otherwise proper charge of hate speech, a practical “get out of jail free card,” in the absence of evidence that the target of the hate speech – in this case Muslims – represents an imminent threat to the public order.
A narrow definition of the “public interest” defense to a hate speech conviction would be consistent with liberal theories of tolerating the intolerant. As Rawls puts it in his Theory of Justice, the tolerant have a duty to extend the principle of tolerance to the intolerant except in circumstances where there are “considerable risks to our own legitimate interests. Thus just citizens should strive to preserve the constitution with all its equal liberties as long as liberty itself and their own freedom are not in danger.” It would also resolve the difficulty inherent in applying the first substantive defense to a hate speech charge, namely, the statement’s truth. Because the “true” position of the speech’s target, in this case Islam, for example, is ambiguous, it is impossible for a court to reduce it to a determinate form so that it could make a definitive conclusion that the speaker’s claims are outright falsehoods, even if the speaker’s claims might seem extravagant or exaggerated. But a court is well-positioned to resolve questions of whether the target of the defendant’s speech represents an imminent threat to the public order.
Hate speech has as its goal to limit the liberty of its target. Hate speech is criminalized, presumably, to secure the rights of those that might be targeted by hate speech. The overbroad defense to the crime of hate speech, however, undermines this goal, and has the practical effect of allowing the defendant, or those sympathetic or affiliated with the defendant, to mobilize a campaign that stigmatizes the speech’s target and deprive them as a group of the effective rights of citizenship, and maybe even the opportunity to obtain formal citizenship rights, when such speech is mobilized, as we have seen in numerous western democracies, to change citizenship and immigration laws with the express goal of preventing Muslim immigration, or encouraging the deportation or “voluntary” departure of those Muslims already present.
Drawing a more narrow defense to hate speech, were it to be adopted, would provide a fair principle for distinguishing speech that may legitimately be proscribed as criminal conduct, from challenging speech that is part of a robust discourse in a democratic context of what constitutes a good life. One of the reasons we value a liberal democracy is its capacity to allow people to pursue different conceptions of a good life. But it follows from this that liberal democracy must also tolerate deep disagreement on what constitutes a good life, including, the possibility that followers of different conceptions of the good criticize other citizens’ ways of living as suboptimal, wrong-headed, or even, in some respects, immoral and, using religious language, sinful. Accordingly, if theists condemn atheists, including, by raising prospects of punishment in the next life for their rejection of God, that cannot constitute hate speech – even if it uses “intemperate” language – to the extent that these moral condemnations are not coupled with calls to deprive atheists of their constitutional liberties, including, obviously, the right to be free of physical violence and intimidation. Likewise, if atheists condemn theists as superstitious simpletons, that too is not hate speech, unless it is coupled with a call to deprive theists of constitutional liberties. When such speech is coupled with claims that groups who adhere to these beliefs are dangerous, and their liberties ought to be curtailed, however, a hate speech violation should lie. In this case, only a narrowly-drawn defense, based on imminence, would be consistent with the policy behind proscribing hate speech in the first place.
* Associate Professor & Canada Research Chair for the Law and Economics of Islamic Law, University of Toronto, Faculty of Law.
 R.S.C., 1985, c. C-46
 Geert Wilders of the Netherlands may be the most prominent example of a politician advocating such a platform, but he is hardly the only one.
 One author has described this as the rise of “sexual nationalism” or “homonationalism.” Iris Sportel, “Who’s Afraid of Islamic Family Law?,” 7,1 Religion & Gender (2017) 53-69, 57.
 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 219.
 See, for example, two reports prepared by the Center for American Progress on how anti-Muslim networks seeking to undermine the citizenship rights of US Muslims are funded by a relatively small group of wealthy, right-wing patrons. Wajahat Ali et al., Fear Inc., the Roots of the Islamophobia Network in America (last viewed, March 16, 2018), and Matthew Duss et al., Fear Inc., 2.0, The Islamophobia Network’s Effort to Manufacture Hate in America (last viewed, March 16, 2018).
 Ronan McCrea, “Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union,” 33-41, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1033332 (last viewed, March 14, 2018).
 See, for example, J. Finnis, “Endorsing Discrimination between Faiths: A Case of Extreme Speech?”, in I. Hare and J. Weinstein (eds.), Extreme Speech and Democracy (New York: Oxford University Press, 2009), 430-44, 440.
McCrea, Ronan. “Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union,” 33-41, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1033332 (last viewed, March 14, 2018).
Rawls, John. A Theory of Justice (Cambridge: Harvard University Press, 1971), 219.