Richard Moon: “Can Hate Speech Sometimes Be True or in the Public Interest?” 2018 C4eJ 7

[read the review essay here]

Richard Moon*

I am grateful to Dr. Fadel for his careful reading of the book and for his thoughtful comments on some of the issues it raises.

In his comments Dr. Fadel’s focuses on the “public interest” and “truth” defences to the charge of hate speech. Section 319 of the Canadian Criminal Code, prohibits both the incitement of hatred, against the members of an identifiable group “where such incitement is likely to lead to a breach of the peace” and the “wilful promotion of hatred” against such a group. But as Dr. Fadel notes s. 319 also sets out a number of defences to the charge of hate speech, including that a person shall not be convicted under the section “if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject or on an opinion based on a belief in a religious text” (s. 319(3)(b)) or if he can demonstrate that his claims are true (s. 319(3)(a)) or “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” (s. 319(3)(c)). Dr. Fadel expresses concern that these defences may have the effect of “immunizing” from criminal prosecution speech that promotes “widespread social, prejudice, if not outright hatred, towards Muslims and Islam”. He notes that anti-Muslim – Islamophobic – author Mark Steyn was found not to have breached the restriction in the BC Human Rights Code on speech that exposes the members of a religious or racial group to hatred, because, among other reasons, his speech contributed to the discussion of a public issue.

Dr. Fadel agrees that criticism of Islamic teaching – on matters such as sexual morality – cannot be treated as hate speech and subject to legal restriction.  However, he considers that the additional claim that Islam is “uniquely a ‘threat’ to public order is problematic”.  There is he says “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 context, he says, arises not from the critique of Islam as sexually conservative and repressive but rather from the claim that this sexual morality makes Islam and Muslims a particular threat to public order. Dr. Fadel also raises concerns about the “truth” defence, noting that it may often be difficult to label a claim about Islam or Muslim belief as either true or false, since what Muslims believe or what Islam teaches may be “ambiguous” or contested

In deciding whether or when criticism of a group such as Muslims should be restricted as hate speech, Dr. Fadel proposes that instead of asking whether the statements are true or whether they address a public issue, we should ask whether the speech asserts that the members of the target group are dangerous and that “their liberties ought to be curtailed”. He argues that the “truth “and “public interest” defences should not “immunize” this speech, “in the absence of evidence that the target of the hate speech … represents an imminent threat to public order”.  (This last element though might be viewed as a kind of truth defence – allowing the speaker to show that the group really is dangerous.)

I agree with much of what Dr. Fadel says in his comment. But I could hardly justify a book – albeit a relatively short one — if I did not claim that “it’s more complicated”.

The book considers what difference religion makes in the application of hate speech law, when it is either the source or target of speech that is alleged to be hateful.  In hate speech regulation a distinction is generally made between an attack on the group or group member, which if sufficiently extreme may amount to hate speech, and an attack on the individual’s or group’s beliefs, which must be protected, even when it is harsh and intemperate in character. However, our complex conception of religious membership – as both personal judgment and cultural identity – complicates this distinction in several ways. In responding to Dr. Fadel’s comments, I will focus on only one of these complications.

Hate speech directed at a religious group often falsely attributes dangerous or undesirable beliefs (rather than traits) to the group’s members. While it is true that the beliefs an individual holds may tell us something about her character, disposition, and likely behaviour, the beliefs or practices that are attributed to the group in these cases are often held by few, if any, of its members (those who identify with the tradition). The falsely attributed beliefs, though, are described as an essential part of the group’s belief system or tradition. The belief serves the same role as a falsely attributed racial characteristic: To be a member of the group is to think and act in a way that is deeply undesirable or anti-social. What is presented as an attack on belief then may sometimes amount to an attack on the group. If the attack (the false attribution of belief) is sufficiently extreme, it may breach the hate speech ban.

Most contemporary anti-Muslim speech takes this form, presenting Islam as a regressive and violent belief system that is incompatible with liberal democratic values. The implication is that those who identify as Muslims – those who hold such beliefs — are dangerous and should be treated accordingly. Beliefs that may be held by a fringe element in the tradition are falsely attributed to all Muslims. This form of hate speech ignores the diversity of belief in the group and elides the space or distinction between the individual and the religious group or tradition with which she identifies. Belief becomes an attribute shared by the members of the group and the attack on belief (that has been attributed to the entire group) becomes an attack on those who associate with – or may be associated with — the religious tradition.

In deciding whether attacks on “belief” amount to hate speech, I don’t think we can avoid the question of whether those attacks – the claims made — are true or accurate. Speech that condemns a group, including a religious group, that adheres to dangerous beliefs and practices, and calls for the exclusion of the members of the group, ought not to be censored as hate speech. Claims of this kind should be suppressed only if they are false – only if the attribution of dangerous beliefs and practices to the whole or to the largest part of the group is inaccurate.

I argue in the book that hate speech is necessarily “false” – that this is an essential element of the wrong. It is not surprising then the “truth” defence in the Canadian Criminal Code never seems to play any role in hate speech cases. At the core of hate speech is a claim that is false – that denies the equal worth or basic dignity of some individuals based on their race (or other identity or association), or, more often, that falsely attributes dangerous or undesirable traits to the members of such a group. The claim that the members of a racial group are inherently inferior or dangerous is inconsistent with the principle of human equality that underpins political society and is entrenched in the constitution. Speech that challenges public values and commitments must, of course, be protected from censorship. It is less obvious, though, that protection should be extended to speech that vilifies or stirs up hatred against the members of a group and might ‘lead’ to extreme or radical action against them.

The argument for the restriction of hate speech must go something like this: Despite our commitment to freedom of expression, we know that individuals are not always in a position to assess the claims made to them carefully or rationally. The failure to ban the extreme or radical edge of prejudiced speech — speech that is hateful in its content and visceral or irrational in its impact — carries too many risks, particularly when it circulates within a racist subculture that operates at the margins of public discourse. When the speaker makes false claims about the members of a group that are so extreme that they may be understood as justifying violent action against them, we ought not to take the risk that these claims will influence the audience’s thought and action. Hate speech may create a significant risk of harm (a risk that may be viewed as the speaker’s responsibility) when it is directed at a sympathetic audience in a context that limits the opportunity or likelihood of independent judgment – more particularly, when it plays to fears and resentments, builds on existing prejudices, and occurs away from critical scrutiny. The concern is not, or at least not principally, that hate speech will contribute to the spread of hateful or discriminatory attitudes across the general community, leading to more widespread discrimination against minority groups. Instead, the concern is that individuals, or small groups, who are already inclined to bigoted or racist thinking, may be encouraged or emboldened to take extreme action against the members of the target group – and engage in acts such as gay bashing or fire-bombing synagogues or mosques.

This takes me to Dr. Fadel’s concerns about the “public interest” defence to the charge of hate speech. A consideration of the role and scope of such a defence highlights some of the difficulties or challenges in trying to regulate hate speech. As Dr. Fadel notes, the BC Human Rights Tribunal found that Mark Steyn’s speech attacking Muslims did not breach the provincial human rights code because his speech contributed to an ongoing public debate about immigration and terrorism. While Steyn may have engaged in “exaggeration”, said the tribunal, he did so in order to rally public opinion. The question that was not asked by the tribunal is what was Steyn hoping to achieve through his false and exaggerated claims – what exactly was he asking of his readers? In his column in Macleans, a popular national news magazine, and in his other writing, Steyn does not often call for political action; indeed he sometimes says that political action will be futile in the current climate. Nevertheless, because the view that Muslims are willing to use violence to advance their faith is no longer a fringe view, Steyn’s claims about Muslims are more likely to be viewed as support for political action rather than advocacy of extra-legal violence and discrimination. But, of course, the political action that is called for is the oppression or exclusion of Muslims. The involuntary deportation of Muslims from the West would require state violence that is too awful to imagine.

One of the ironies of hate speech law is that it may only be effective in dealing with speech that occurs at the margins of public discourse — that lies outside the scope of mainstream opinion and general debate. The purpose of a ban on hate speech cannot be to eradicate bigotry and discrimination in the community but must instead be more narrowly defined – to prevent the encouragement of ‘isolated’ acts of violence against the members of a targeted group — and perhaps also to stop the extreme from becoming mainstream. When Islamophobic speech is more widely expressed, not only will it be seen as directed towards political action rather than the incitement of extra-legal violence, it will be less recognizable as extreme, as calling for radical or violent action (state or extra-legal). Because anti-Muslim speech is more and more commonplace, because it is often made in public view and therefore exposed to debate and refutation, and because it may increasingly be understood as calling for (democratic) political action, there may be no alternative but to debate it. Nevertheless, if the claims of Steyn, Wilders, and others can be read as (implicitly) justifying (state or private) violence against Muslims, then they should be considered hate speech. To assert that Muslims, as a group, are violent is to vilify them and to (implicitly) advocate their forceful oppression.

Because the view that Muslims (or at least many of them) are dangerous is widely held and expressed, we are less likely to link violent action against the group’s members to a particular writing or writer. Most of those who read the words of Steyn will not engage in anti-Muslim violence. And so when an individual, a so-called ‘lone wolf’ such as Anders Breivik, commits an act of violence after absorbing the Eurabia message, his extraordinary action will be attributed to his moral deficiency or mental illness. In contrast, the Canadian, American, and European publics seem less inclined to view an act of violence as ‘isolated’ or as the manifestation of mental illness, when it is committed by an individual who has latched on to the message of terrorist propaganda. The two men, who in separate incidents a few years ago, murdered Canadian soldiers (in a shopping mall parking lot in a small Quebec town and at the cenotaph in Ottawa) were often described not as ‘lone wolves’, but as agents of radical Islam acting on the direction of extremists from abroad, or as apostles of the violent ideology of radical Islam. They were viewed in this way despite their limited knowledge of Islam and lack of connection to any radical organization, and their personal histories of petty crime, drug abuse, and mental illness.

Once again, let me say how grateful I am to Dr. Fadel for his thoughtful comments. I could say more about the issues he has raised and about other matters discussed in the book, but then of course I might just end up reproducing the book.


* Distinguished University Professor and Professor of Law at the University of Windsor.