Prepared for the conference “Hatred in Canada—Perspectives, Action and Prevention”, Faculty of Law, University of Victoria, September 18–19, 1998
By Murray Mollard, policy director and Andrew Irvine, president
The B.C. Civil Liberties Association supports the principle of open access to public spaces for all citizens’ groups in order that they may express their political views, regardless of how repugnant these views might be. We do so for both principled and practical reasons.
It is important to note from the start that this does not in any way mean that the BCCLA supports or condones hateful speech. We thus differ from those who advocate restrictions on hate speech, not in the appropriateness of such speech, but simply in whether this type of speech should be tolerated. The debate between civil libertarians and those who advocate speech restrictions is really about how important free speech is in a democratic society and about how society can best respond to hatred.
It is also important to note that the BCCLA has long supported the need for human rights protections that prohibit and remedy harmful actions based on hateful and prejudicial attitudes. Discrimination in housing, in employment, and in the provision of public services are all actions which are properly proscribed and remedied through human rights legislation.
Principled Arguments for Open Access to Public Spaces
In a democracy, political power ultimately rests with the citizenry. Thus, it is each citizen’s right and responsibility to engage in the process of self-government. This requires all citizens, as sovereign rulers, to continually deliberate on and debate issues of public importance. Ultimately, all laws and public institutions must find their legitimacy in the sovereign will of the people. Since it is only with the free expression of ideas of all kinds that citizens are able to exercise their political sovereignty, free speech, and other basic rights such as that of peaceful assembly, serve as the foundation for a broad range of political and civil liberties.
For this reason we believe that regulation stops, and censorship begins, when adult citizens are unable to gain access to non-proprietary ideas and information which are of interest to them and which are of no direct and immediate harm to others. Should the state elect to restrict the availability of public meeting spaces to certain groups based on the content of their views—for example, allowing access only to those who do not espouse extremist or offensive views—this would constitute an unwarranted encroachment upon the rights of B.C.’s citizens. Even more so, it would represent a retreat from democracy since, in doing so, we will have undermined our collective ability to deliberate on and make decisions about matters of public importance.
Intuitively, it is tempting to want to restrict access to public meeting spaces if there is near unanimity that the ideas under discussion are vile and repugnant. However, it is the nature of controversial issues, especially those inherently political matters that involve race, history, religion and sex, that they typically defy consensus, let alone unanimity. Permitting public bodies like local library boards (which are made up of elected representatives) to screen those groups which apply for the use of library space (or other benefits normally available to the public) according to the content of these groups’ ideas, would amount to the state placing itself in judgment over the worth or value of these ideas. It would amount to the state using its authority to limit inappropriately the expression of, and access to, those ideas which it deems unacceptable. This would be contrary to the democratic principle of the sovereignty of the citizen, and would likely attract a Charter challenge.
Moreover, past experience reminds us that state agencies are not always the best judge of which ideas are and are not appropriate. There are many ideas which some agency of the state may find unacceptable. Suppose a library or school board found the depiction of gay and lesbian relationships, or safe sex practices, or the theory of evolution unacceptable, and banned those depictions from its jurisdiction. (Such events have not only occurred recently in B.C., they have occurred elsewhere as well.) Of course, most of us would be appalled at such restrictions, and would be willing to put our resources into fighting them; but when many of us are confronted by extremist speech, we are tempted to forget such examples and ask the state to enforce restrictions which affect only those with whom we disagree.
Practical arguments for open access to public spaces
As a society, we also need to tolerate the public expression of hateful speech for important practical reasons. Chief among these is that, if we attempt to muzzle hate speech using the law, we run the risk of actually increasing and intensifying the exposure such speech receives via the media. Even worse, the hate-monger is often transformed into a martyr for free speech. It is unlikely that Canadians would be as familiar with the names Zundel, Keegstra and Ross if we did not have laws which censor hate speech.
History provides further lessons on this point. There were hate speech laws in Germany in the 1930s. Several Nazi leaders were prosecuted and some spent time in jail. Predictably, rather than quashing anti-Jewish sentiments, these prosecutions had the opposite effect: they created martyrs of those prosecuted and gave momentum to the Nazi movement. Though some might argue that the German laws were not strong enough, creating a more powerful law simply runs the risk of capturing more speech that should not be censored. At the same time, there is no certainty that such laws will work. If history is to be our guide, time and time again we see that passions and ideas cannot be snuffed out by prosecution. Ideas are singularly resistant to, and flourish in spite of, official persecution and legislation.
Perhaps the most poignant lesson to be learned from the German experience is that there is increased danger whenever a citizenry shrinks from its democratic commitment and instead defers to the state to silence hate-mongers. By disengaging from public debate, citizens not only become less sovereign, they also run the risk of losing the battle against the hate-monger.
It is also useful for society to know who is spreading hate. By identifying and monitoring their messages, we are able to act quickly if hateful expression turns into hateful action. Furthermore, those expressing hate will know that society is keeping watch on them. In contrast, prohibiting hate speech will have the effect of forcing these communications underground, possibly causing more harm in terms of discrimination and violence than if the messages had been publicly aired. Hate speech is bad thing. In a perfect world, it would not exist; but we live in a less than perfect world where the emotion of hate is, unfortunately, real. Public expression of hate tests our commitment to those values we cherish as a society: equality, tolerance and diversity. Hate speech directly challenges all citizens—not just those who are targets of hateful expression—to reaffirm those values that form the foundation of our society. Hate speech challenges us to stand up and be counted, to commit ourselves to the ideals of equality, and to accept diversity. As such, they provide an important field test for civic activism.
After all, our commitment to equality and diversity does not result from the state telling us that these values are important. As the BCCLA argued at the human rights hearing into the complaint against Doug Collins and the North Shore News in 1997, if citizens, especially young adults, rely on the state to sanitize ideas, we do not only abdicate our commitment to democracy. We also lose our opportunity as citizens to understand and practice the values of equality, tolerance and respect in a real, non-theoretical, context. As John Stuart Mill pointed out over a century ago, unless they are tested anew with each generation, such ideals will become nothing more than a series of dead dogmas.
The special case of libraries
As a rule, citizens should be able to gain access to any public space to express their views, no matter how controversial. However, libraries bear a particular responsibility to ensure open access. Like our universities, public libraries play a special role in society in facilitating the free exchange of ideas and information. That is their raison d’etre. For democracy to flourish, citizens must have access to the broadest possible range of information. Our public libraries are thus a vital institution in the functioning of democracy. Without them, much of what we take for granted in society would be lost.
Some might argue that since libraries sometimes make decisions about what materials to purchase based on content, they should also be able to turn away groups from renting meeting space if such groups subscribe to racist beliefs. The short answer to this argument is that these two cases are not analogous. It is more appropriate to compare the renting of library space with the loaning of a book that is part of the library’s collection. Both are resources that have already been acquired and, as with book lending practices, so should it be with library space: first come, first served. Librarians do not make an assessment about a borrower’s particular beliefs, or about the purpose for which a book is going to be used, before deciding to lend it. It should be the same with library space.
Free speech is not absolute
The BCCLA is sometimes criticized because it is perceived to hold the position that free speech is absolute. This is an inaccurate characterization of our position. We do believe that it is appropriate for the state to restrict certain kinds of expression. For example, we support state restrictions on child pornography. Children deserve the state’s protection in a way that adult citizens do not. Furthermore, we support laws against incitement. An appeal to principles of free speech does not excuse shouting “Fire!” in a crowded theatre when there is no fire. This type of speech is legitimately restricted because the circumstances of its expression prevent the kind of deliberation necessary to make informed choices about our actions.
In the case of public spaces such as libraries, it would thus be legitimate to restrict access if it can be shown that, as a result of its meeting, it is likely that a group will break other laws. For example, if a group has damaged property in the past, or individuals associated with the group have assaulted others during, or as a result of, such meetings, restrictions may be justified.
What to do about hate speech
In deciding how best to respond to hate speech it is important to acknowledge that racism and hatred are not likely to disappear, regardless of what we do. This does not mean that we should be fatalistic, throwing up our hands as if there is nothing we can do. However, it does mean that we should not be lulled into thinking that simply by creating the right kind of law we will be able to eradicate hatred. Such laws are dangerous for the kinds of reasons discussed. A more appropriate goal is thus to marginalize hate-mongers and minimize the effect of their messages by making it less acceptable to convey hateful messages.
So what can we do? First, it is crucial that we have human rights legislation to prohibit and effectively remedy discriminatory actions. Although it is wrong to prohibit the expression of even hateful ideas, the state can legitimately sanction individuals for discriminatory and criminal actions based on prejudicial attitudes.
Second, it is important that citizens and citizen groups speak out against hate in a myriad of ways: in demonstrations, in public fora, in educational contexts, and so on. It is important to note that all citizens bear a responsibility to respond, and that this task is not left just to the targets of hate.
Boycotts of media, and of advertisers who support such media, that provide a voice to hate-mongers is often an effective method. And though state censorship is not an appropriate response, it may be appropriate for the state to provide resources to help empower citizens and citizen groups who wish to counter hate speech with speech of a different kind.
It also bears mentioning that in some circumstances the most effective response to hate may be no response at all. If our goal is to limit the spread of bias and hatred, it may be more effective simply to ignore such messages. This is really a strategic decision that citizens and citizen groups have to contemplate depending on the context. For example, in the context of the dispute regarding the use of library space in Victoria, it is our understanding that the Canadian Free Speech League has conducted its meetings with relatively little fanfare for years, and it is only when there have been attempts to stop them from holding meetings that they and their ideas have received significant media coverage.
A principled commitment can be sorely tested when faced with extreme challenges. Such is the case with hate speech; but even here, our commitment to freedom of expression does not come up short. Freedom of expression is not simply an abstract principle. It is a fundamental part of any democratic society. It is also the best weapon we have to combat hateful expression. It is more effective than censorship. If, as a society, we choose to abandon it, we become something less than a democracy. Tolerating speech with which we disagree is thus not only the surest way to minimize the effects of hatred, it is also the surest way we have of supporting democracy itself.