Professional Documents
Culture Documents
Are Hate Speech Provisions Antidemocratic
Are Hate Speech Provisions Antidemocratic
DEMOCRATIC?: AN INTERNATIONAL
PERSPECTIVE
ROBIN EDGER*
INTRODUCTION
There is currently a public debate in Canada over whether it is
legitimate for the government to restrict hate speech. Canada
currently has both criminal and civil legal provisions that restrict hate
speech.1 Public criticism of these sorts of governmental restrictions
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and to regulate those actions which might infringe on this right, even
in the private sphere.
Section 13 of the Canadian Human Rights Act (“CHRA”)
prohibits hate messages.7 The human rights codes of British
Columbia, Alberta, Saskatchewan, and the Northwest Territories
include similar provisions.8 Through these provisions the
Commissions are given the authority to accept and to investigate
complaints about hate messages, and to forward the complaints to
their respective Human Rights Tribunals if they find that the
complaints have merit and if the parties cannot reach a mediated
compromise.9 Commissions may also dismiss a complaint at certain
designated points in an investigation.10 At the Tribunal, the
Commission argues on behalf of the complainant out of the broader
public interest in the complaint.11
The Alberta Human Rights Commission accepted and investigated
the complaint against Ezra Levant and The Western Standard.12
Later, a similar complaint on the same issue was brought by the
Edmonton Council of Muslim Communities (“ECMC”).13 Levant
received a copy of the complaints,14 and wrote Western Standard’s
reply to the Commission.15 The Commission offered to set up a
conciliation meeting between the complainants and Levant, to which
Levant replied, “[T]here could be only one form of ‘conciliation’ that
discrimination . . . .”).
7. Canadian Human Rights Act, R.S.C. 1985, c. H-6 §§ 3(1), 13 (describing
the prohibition as against discriminatory messages transmitted telephonically that
are likely to expose individuals to hatred or contempt because of an identifiable
characteristic such as their race, national or ethnic origin, color, and religion).
8. RICHARD MOON, REPORT TO THE CANADIAN HUMAN RIGHTS COMMISSION
CONCERNING SECTION 13 OF THE CANADIAN HUMAN RIGHTS ACT AND THE
REGULATION OF HATE SPEECH ON THE INTERNET 4 (2008).
9. See Investigation of Section 13 Complaints, CANADIAN HUMAN RIGHTS
COMMISSION, http://www.chrc-ccdp.ca/proactive_initiatives/hoi_hsi/qa_qr/page3-
en.asp#34 (last visited Aug. 31, 2010).
10. See R.S.C. 1985, c. H-6 §§ 41, 43, 53 (authorizing dismissal when the
complaint is frivolous, beyond the jurisdiction of the Commission, or
unsubstantiated, among other disqualifying circumstances).
11. Id. § 51.
12. See LEVANT, supra note 2, at 139 (claiming that the investigation lasted
nine hundred days and involved “no fewer than fifteen government bureaucrats”).
13. Id. at 141.
14. Id. at 136.
15. Id. at 139.
122 AM. U. INT’L L. REV. [26:1
32. Guide 1 - The BC Human Rights Code and Tribunal, BRIT. COLUMBIA
HUM. RTS. TRIBUNAL, 1-2, http://www.bchrt.bc.ca/guides_and_information_sheets
/guides/Guide1_2005.pdf (last visited Aug. 31, 2010).
33. See id. (listing pre-hearing mediation and the hearing process as the only
two means by which the Tribunal handles complaints).
34. See Mark Steyn, The Future Belongs to Islam, MACLEAN’S (Can.), Oct. 20,
2006, http://www.macleans.ca/culture/entertainment/article.jsp?content=20061023
_134898_134898 (describing the evolution of Europe into “Eurabia” because of
“demographic decline; the unsustainability of the social democratic state; and
civilizational exhaustion”). See generally MARK STEYN, AMERICA ALONE: THE
END OF THE WORLD AS WE KNOW IT (2006).
35. See Elmasry, 2008 BCHRT at ¶¶ 4-6 (setting forth the duty of the Tribunal
to investigate the allegations that the article exposed Muslims “to hatred and
contempt, on the basis of their religion”).
36. See, e.g., Are the Canadian Human Rights Commission/Tribunal a
Kangaroo Court?, THE FREEDOM-SITE, http://www.freedomsite.org/legal/dec17-
07_chrt_a_kangaroo_court.html (last visited Aug. 31, 2010) (collecting quotations
of bloggers, journalists, and parties to CHRT actions, lamenting the court’s lack of
standards, internal consistency, and accountability).
37. Elmasry, 2008 BCHRT at ¶ 6.
38. See Writers Call for Probe into Human Rights Commission, CBC NEWS,
http://www.cbc.ca/canada/story/2009/10/05/human-rights-commission.html (last
updated Oct. 6, 2009) (noting the presence of Levant and Steyn at one of the
2010] HATE SPEECH PROVISIONS 125
48. See Kathleen Mahoney, Hate Speech, Equality, and the State of Canadian
Law, 44 WAKE FOREST L. REV. 321, 351 (2009) (asserting that a “culture of
respect” cannot be sustained without prohibitions on hate crimes, and by extension,
hate speech).
49. See, e.g., Henri Astier, Speech Row Rocks Multi-Ethnic Canada, BBC
NEWS, http://news.bbc.co.uk/2/hi/americas/7273870.stm (last updated Mar. 24,
2008) (noting a former pro-CHRC advocate’s disappointment that the legitimate
goals of equality have sidelined important rights such as free speech).
50. See, e.g., Stephen Brooks, Hate Speech and the Rights Cultures of Canada
and the United States, THE 49TH PARALLEL (Spring 2004),
http://www.49thparallel.bham.ac.uk/back/issue13/brooks.htm (framing the
Canadian debate as one between a legitimate right to free speech and a
constitutional protection against false statements which are offensive and hurtful).
51. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act, 1982, c. 2, 8 (U.K.) [hereinafter
Canadian Charter]. The Canadian Charter explicitly enumerates fundamental
freedoms including the “freedom of thought, belief, opinion and expression, [and] .
. . freedom of the press and other media of communication,” but it indirectly
establishes the right to property through the right against unreasonable searches
and seizures. Id.
52. LEVANT, supra note 2, at 176.
53. Cf. id. (emphasizing how small changes in the language of the debate can
have significant effects, such as when Maclean’s lawyer referred to Steyn as a
128 AM. U. INT’L L. REV. [26:1
were certainly offensive to some, that alone did not make them hate
speech. They did not advocate that Muslims were of inherently lesser
value than people of other religions, thereby engaging their right to
equality.58 It is not clear whether this reasoning was behind the
complaint’s dismissal; it is only used here as an example of speech
that may be religiously offensive, but is not tantamount to hate
speech.
Therefore, any restrictions upon hate speech need to have the
promotion of equality as their goal rather than the amelioration of
offense.59 These sorts of hate speech restrictions would be solely “for
the purpose of securing due recognition and respect for the rights and
freedoms of others,” therefore falling within the first part of Article
29(2).60 The second part of Article 29(2), “meeting the just
requirements of morality, public order and the general welfare in a
democratic society,” is preceded by a conjunctive “and,” so therefore
must also be satisfied if the limitation is to fall within the article.61
It would seem that this second part of Article 29(2) is also met by
what is referred to above as “legitimate hate speech restrictions,”
though many of the terms used are fairly broad and open to
interpretation. It could certainly be argued that hate speech is
immoral and potentially disruptive of public order, and that
legitimate hate speech restrictions seek to ameliorate these negative
effects.62 Whether legitimate hate speech restrictions “promote the
general welfare in a democratic society” is open to debate as well,
but it is at least arguable that they do. Most would agree that hate
speech diminishes welfare, but there are many others who believe
that hate speech legislation is worse.63 These claims will continue to
http://www.humanevents.com/article.php?id=12146.
58. There is also the side issue of whether, even if the cartoons did constitute
hate speech, their publication is acceptable in terms of newsworthiness. This issue
is not substantially relevant to the current discussion, so it will not be addressed in
this article.
59. See Mahoney, supra note 48, at 351 (promoting hate speech restrictions as
a means to protect victims from irreparable harm).
60. G.A. Res. 217 (III) A, supra note 27, art. 29(2).
61. Id.
62. See Mahoney, supra note 48, at 326 (suggesting that some of the worst
crimes against humanity, such as ethnic cleansing in Rwanda and the former
Yugoslavia, may have been the result of a failure to adequately control hate
speech).
63. Compare id. at 351 (arguing that hate speech has the tendency to breed
130 AM. U. INT’L L. REV. [26:1
(3) The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are provided
by law and are necessary: (a) For respect of the rights or reputations of
others; (b) For the protection of national security or of public order (ordre
civil unrest), with id. at 348 (noting, however, that restrictions on free speech
might lead to “tyranny”).
64. G.A. Res. 217 (III) A, supra note 27.
65. International Covenant on Civil and Political Rights, pmbl., adopted Dec.
16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
66. See Mariana Mello, Note, Hagan v. Australia: A Sign of the Emerging
Notion of Hate Speech in Customary International Law, 28 LOY. L.A. INT’L &
COMP. L. REV. 365, 370 (2006) (commenting on the ICCPR’s binding character,
and giving emphasis to those provisions that “address[] the problem of hate
speech”).
67. Status of the International Covenant on Civil and Political Rights, UNITED
NATIONS TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=
TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited Aug. 31, 2010)
[hereinafter Status of the ICCPR].
68. Id.
2010] HATE SPEECH PROVISIONS 131
Human Rights Tribunal, however, found John Ross Taylor and the
Western Guard to be in breach of the CHRA’s section 13.75 Mr.
Taylor and the Western Guard Party had instituted and promoted a
telephone message service in Toronto whereby any member of the
public could listen to a pre-recorded message that would change
from time to time, but was generally of the theme that can be
gathered from the following excerpt:
White people the world over need to awaken to the fact that the white race
is under attack [by] an international conspiracy of communist agents
originally financed by the New York Jewish Banking House . . . . God
and Nature intended races to live apart. The seventh commandment means
thou shalt not race mix.76
The Tribunal ordered Taylor and the Western Guard Party to cease
using the telephone to “communicate repeatedly the subject matter
which has formed the contents of the tape-recorded messages
referred to in the complaints.”77
Subsequently, Taylor submitted his complaint to the ICCPR
Human Rights Committee (“Committee”), which declared the claim
inadmissible on grounds that domestic remedies had not been
exhausted,78 but also stated:
[T]he opinions which Mr. T[aylor] seeks to disseminate through the
telephone system clearly constitute the advocacy of racial or religious
hatred which Canada has an obligation under article 20(2) of the
Covenant to prohibit.79 In the Committee’s opinion, therefore, the
communication is, in respect of this claim, incompatible with the
provisions of the [ICCPR] . . . .80
75. Smith and Lodge v. Western Guard Party, 1979 CHRT 1, para. 41 (Can.),
available at http://www.chrt-tcdp.gc.ca/search/files/t001_0179de_07_20.pdf.
76. Id. at Schedule #9.
77. Id. para. 42.
78. U.N. Human Rights Comm., Decision of the Human Rights Committee
under the Optional Protocol to the ICCPR Concerning Communication No.
104/1981, at 236, U.N. GAOR, Supp. No. 40 (A/38/40) (Apr. 6, 1983) [hereinafter
1983 HRC Decision].
79. Taylor, 3 S.C.R. at para. 44.
80. 1983 HRC Decision, supra note 78, at 236; Farrior, supra note 72, at 46-47.
2010] HATE SPEECH PROVISIONS 133
there had been no gas chambers used for the extermination of Jews in
Nazi concentration camps.81 Faurisson was convicted for these
assertions under French hate speech law.82
The Committee determined that the restriction satisfied the
principle of legality and was imposed for a legitimate purpose.83
They then turned to whether the restriction was necessary to meet the
government’s aim. The French government successfully argued that
the author’s revisionist arguments were promoting anti-Semitism and
that the restriction was necessary to combat racism.84 Therefore, the
Committee held that the restriction on the applicant’s right to
freedom of expression was consistent with Article 19 of the ICCPR.85
In Ross v. New Brunswick School District No. 15, the New
Brunswick Human Rights Tribunal had ordered a teacher’s transfer
to a non-teaching position because of his anti-Semitic writings, and
this decision was upheld by the Supreme Court of Canada.86 The
Committee held that this restriction did not violate Article 1987
because it had “the purpose of protecting the ‘rights or reputations’
of persons of Jewish faith, including the right to have an education in
the public school system free from bias, prejudice and intolerance.”88
81. U.N. Human Rights Comm., Views of the Human Rights Committee under
Article 5, Paragraph 4, of the Optional Protocol to the ICCPR Concerning
Communication No. 550/1993, ¶ 2.1, U.N. Doc. CCPR/C/58/D/550/1993 (Nov. 8,
1996) (noting that Faurisson did not deny the existence of the Holocaust, but
questioned the existence of gas chambers as a method of extermination).
82. Id. ¶ 2.6 (quoting Faurisson’s assertion that the “myth” of the gas chambers
was a “dishonest fabrication”).
83. Id. ¶¶ 9.5-.6 (holding that the French conviction was consistent with the
Covenant’s restriction of speech rights because it upheld the anti-discrimination
rights of others).
84. Id. ¶ 9.7.
85. Id. ¶ 10; see Onder Bakircioglu, Freedom of Expression and Hate Speech,
16 TULSA J. COMP. & INT’L L. 1, 34-35 (2008) (suggesting that Faurisson’s
statements also constituted “incitement” under Article 20(2) of the ICCPR).
86. Ross v. New Brunswick Sch. Dist. No. 15, [1996] 1 S.C.R. 825 (Can.)
(noting that once removed from a teaching position, a further provision terminating
his employment if he published any anti-Semitic writings was a violation of his
freedom of expression under the Canadian Charter of Rights and Freedoms).
87. U.N. Human Rights Comm., Views of the Human Rights Committee under
Article 5, Paragraph 4, of the Optional Protocol to the ICCPR Concerning
Communication No. 736/1997, ¶ 11.6, U.N. Doc. CCPR/C/70/D/736/1997 (Oct.
18, 2000).
88. Id. ¶ 11.5; Bakircioglu, supra note 85, at 35.
134 AM. U. INT’L L. REV. [26:1
(b) Shall declare illegal and prohibit organizations, and also organized and
all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such organizations or
activities as an offence punishable by law;
93. Compare id., with ICCPR, supra note 65, art. 20(2).
94. Farrior, supra note 72, at 48.
95. But cf. Hate Jurisdictions of Human Rights Commissions: A System in Need
of Reform, B’NAI BRITH CANADA, http://www.bnaibrith.ca/files/290808.htm
#remedy (last visited Aug. 31, 2010) (arguing that civil remedies are better suited
for hate speech crimes than criminal sanctions because they “lessen the chilling
effect on freedom of speech”).
96. See Rep. of the Comm. on the Elimination of Racial Discrimination, ¶ 391,
U.N. Doc. A/35/18; GAOR, 35th Sess., Supp. No. 18 (1980) (“[C]ivil suits could
drag on for long periods and . . . in order to provide effective protection,
discrimination should be designated at least a criminal offence.”), cited in Farrior,
supra note 72, at 51.
136 AM. U. INT’L L. REV. [26:1
97. See Farrior, supra note 72, at 51 (noting that some members, such as
Belgium, have interpreted the phrase “punishable by law” to allow for civil
penalties, as opposed to criminal penalties).
98. CERD, supra note 89, art. 4.
99. Id. art. 5.
100. See Bakircioglu, supra note 85, at 28-29 (noting the various interpretations
of the “due regard” clause as well as the many reservations to the CERD, which
weaken the CERD’s effectiveness overall).
101. Id. at 28.
102. Id.
2010] HATE SPEECH PROVISIONS 137
103. Id.
104. Id.
105. Id. at 28-29.
106. See Laurence R. Helfer, Forum Shopping for Human Rights, 148 U. PA. L.
REV. 285, 336, 339 (1999) (explaining that the CERD generally calls for giving
more weight to a state’s obligation to criminalize racist speech than its duty to
protect the right to free expression, but that a careful balancing of both the right to
freedom of expression and the right to be protected from racial discrimination is
138 AM. U. INT’L L. REV. [26:1
2. Redress
Though the CERD does not grant rights and instead requires the
enactment of legislation,107 private citizens of states parties may still
seek redress through the CERD if their state fails to actively
prosecute cases of alleged discrimination.108 The CERD Committee’s
judgments so far have not been sympathetic to the judicial decisions
of states parties that have chosen not to prosecute cases of alleged
discrimination on freedom of speech grounds.
A decision that is illustrative of this attitude is Jewish Community
of Oslo v. Norway.109 In this case, the CERD Committee examined a
complaint regarding a Supreme Court of Norway decision that
overturned a lower court’s conviction under a section of the
Norwegian Penal Code prohibiting “a person from threatening,
insulting, or subjecting to hatred, persecution or contempt, any
person or group of persons because of their creed, race, color or
national or ethnic origin.”110 The conviction was based upon a racist
speech that Terje Sjolie, the leader of a group called the Bootboys,
delivered during an organized march in commemoration of the Nazi
still required because states may not greatly curtail one right to protect the other);
see also Farrior, supra note 72, at 52 (explaining that when freedom of expression
competes with the right to freedom from racial discrimination, the general
interpretation is that freedom from racial discrimination should be given greater
weight).
107. See CERD, supra note 89, art. 6 (requiring states parties to “assure to
everyone within their jurisdiction effective protection and remedies, through the
competent national tribunals and other State institutions, against any acts of racial
discrimination . . . .”).
108. See id. art. 14 (requiring, however, that before the Committee can hear the
complaint, the state party in which the complaint resides must have issued a
declaration “recogniz[ing] the competence of the Committee to receive and
consider communications from individuals or groups of individuals within its
jurisdiction”).
109. See U.N. Comm. on the Elimination of Racial Discrimination, Opinion of
the Committee on the Elimination of Racial Discrimination Under Article 14 of the
CERD concerning Communication No. 30/2003, ¶¶ 10-12, U.N. Doc.
CERD/C/67/D/30/2003 (Aug. 15, 2005) [hereinafter 2005 CERD Decision]
(finding that the defendant’s acquittal by the Supreme Court of Norway constituted
a violation of Articles 4 and 6 of the CERD).
110. Id. ¶¶ 2.5-.8; The General Civil Penal Code art. 135a (2005) (Nor.).
2010] HATE SPEECH PROVISIONS 139
117. Canadian Charter, supra note 51, at c. 2(b) (“Everyone has the following
fundamental freedoms . . . (b) freedom of thought, belief, opinion and expression .
. . .”).
118. Id. at c. 1 (“The [Canadian Charter] guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.”).
119. Keegstra, [1990] 3 S.C.R. at paras. 6, 49-50 (highlighting that the section 1
analysis must be cognizant of the circumstances of the particular case as well as
the rights promoted within the Charter itself).
120. Id. para. 2.
121. Id.
122. Id. para. 3.
123. See id. paras. 6, 19-25 (beginning by exploring the history of section
319(2), which was enacted when existing criminal provisions against libel were
insufficient to address hate propaganda).
2010] HATE SPEECH PROVISIONS 141
124. Id. paras. 33-36, 44 (finding that under the Irwin Toy analysis, (1)
Keegstra’s teachings did amount to “expression irrespective of the particular
meaning or message sought to be conveyed,” and (2) the restriction of his speech
by section 319(2) was meant to restrict his freedom of expression).
125. Id. para. 70 (citations omitted) (quoting Slaight Commc’ns Inc. v.
Davidson, [1989] 1 S.C.R. 1038, para. 23 (Can.)).
126. Id. para. 74 (emphasizing that the 1983 HRC Decision, supra note 78,
stands for the proposition that discriminatory messages communicated by a
telephone system can be considered advocating racial or religious hatred and their
restriction does not violate freedom of expression under the ICCPR).
127. Id. para 77.
142 AM. U. INT’L L. REV. [26:1
(2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for
that justification for the decision to restrict hate speech was found
elsewhere. Rather than Article 10(2) of the ECHR, the European
Commission emphasized Article 17,142 which states:
Nothing in this Convention may be interpreted as implying for any State,
group or person any right to engage in any activity or perform any act
aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the
Convention.143
142. See Glimmerveen, 18 Eur. Comm’n H.R. Dec. & Rep. at 194-95 (finding
that Article 17 describes the “duties and responsibilities” undertaken by one who
exercises his freedom of expression).
143. ECHR, supra note 134, art. 17.
144. Glimmerveen, 18 Eur. Comm’n H.R. Dec. & Rep. at 188.
145. Id.
146. Id. at 196; see Farrior, supra note 72, at 66-67 (noting the Commission’s
holding that the leaflets amounted to racial discrimination under both the ECHR
and the CERD).
147. See Jan Arno Hessbruegge, Human Rights Violations Arising from Conduct
of Non-State Actors, 11 BUFF. HUM. RTS. L. REV. 21, 33-34 (2005) (explaining that
states parties may find themselves “in a position of conflicting obligations, where
[they] cannot protect one person's right without limiting the rights of another,” but
that under Article 17, a person’s rights and freedoms cannot be used to justify
activities aimed at the destruction of rights or freedoms of others); see also Jean-
Francois Flauss, The European Court of Human Rights and the Freedom of
Expression, 84 IND. L.J. 809, 837-39 (2009) (“The refusal to protect hate speech is
generally based on an application of the restriction clause of Article 10(2), read
expressly or impliedly through the lens of Article 17.”).
146 AM. U. INT’L L. REV. [26:1
the same way that racist individuals try to use freedom of speech to
shield their attempts to destroy their targets’ equal rights. However,
neither the European Commission nor the Supreme Court of Canada
has ever interpreted Article 17 in this manner in a hate speech case.
In X v. Federal Republic of Germany, the European Commission
examined a complaint from a citizen of Germany who had publicly
displayed pamphlets describing the Holocaust as an “unacceptable lie
and a Zionistic swindle.”148 The applicant had been court-ordered not
to repeat those statements; he was criminally convicted on a charge
of incitement to hatred and given a one year prison term.149 He then
filed a complaint with the European Commission claiming that his
right to freedom of expression had been breached.150 The
Commission found against the applicant, and upheld this restriction
on freedom of expression.151
Likewise in Garaudy v. France,152 the European Court of Human
Rights (“European Court” or “court”) upheld the conviction of an
individual who had authored a book denying the Holocaust.153 The
court stated:
There can be no doubt that denying the reality of clearly established
historical facts, such as the Holocaust, as the applicant does in his book,
does not constitute historical research akin to a quest for the truth. The
aim and the result of that approach are completely different, the real
purpose being to rehabilitate the National-Socialist regime and, as a
consequence, accuse the victims themselves of falsifying history. Denying
crimes against humanity is therefore one of the most serious forms of
racial defamation of Jews and of incitement to hatred of them.154
148. App. No. 9235/81, 29 Eur. Comm’n H.R. Dec. & Rep. 194, 195 (1982).
149. Id. at 196.
150. Id. (noting the applicant alleged his freedom of expression was
“suppress[ed] of truth for political purposes,” and supported his claim through
“scientific research” which the applicant believed proved that the Holocaust never
happened).
151. See id. at 197-99 (acknowledging that the applicant’s freedom had in fact
been infringed, but that such interferences are permissible if “prescribed by law
and necessary in a democratic society”); see Farrior, supra note 72, at 68 (noting
that historical discrimination against Jews was relevant to the Commission’s
reasoning).
152. 2003-IX Eur. Ct. H.R. 369.
153. Id. at 376, 403.
154. Id. at 396-97.
2010] HATE SPEECH PROVISIONS 147
155. See Bakircioglu, supra note 85, at 39 (explaining that the European Court
takes a strict approach in cases regarding “revisionist theories that deny the
existence of crimes against humanity”).
156. See id. at 39-40 (discussing how the treatment of Jerslid v. Denmark, App.
No. 15890/89, 19 Eur. H.R. Rep. 1 (1995), demonstrates that the court is more
tolerant of incidental dissemination of hate speech in order to preserve the freedom
of the press).
157. 19 Eur. H.R. Rep. at 1, 3-8 (observing that the youths were found to have
violated Danish anti-hate speech law themselves).
158. Id. at 14-15.
159. Id.
160. Id. at 13.
161. Id. at 30.
162. Id. at 14-16.
163. See id. at 14-18 (highlighting that “necessary” under Article 10(2) ECHR
jurisprudence means that there is a “pressing social need”).
148 AM. U. INT’L L. REV. [26:1
164. Id. at 16 (noting that the applicant did not utter the words himself, but acted
as a conduit for the racist views).
165. Id. at 17, 27.
166. Id. at 17-18, 28.
167. Id. at 28.
168. See id. (taking into consideration the applicant’s purpose for the
dissemination, as well as potential societal repercussions of disallowing such
dissemination when evaluating the question of “necessity”).
169. Id. (concluding that Jersild’s conviction constituted a violation of Article
10 of the ECHR); see Farrior, supra note 72, at 71-72 (explaining that the court did
not believe that Jersild had participated in the discriminatory remarks and that he
had, in fact, “disassociated himself” from the remarks made by the youths).
170. App. No. 23131/03, 40 Eur. H.R. Rep. SE111, 113 (2004) (noting the
2010] HATE SPEECH PROVISIONS 149
that every major Western democracy except for the United States has
hate speech provisions.
Below, this article reviews jurisprudence on hate speech in the
United States at much greater length than it has for other countries. It
does so at the risk of creating a false equivalency between the
breadth of international legal acceptance of American views and the
views of the rest of the Western democratic world. This author
accepts this risk as a cost of accurately explaining the American legal
position.
B. UNITED STATES
In Keegstra, both the majority and the dissent opinions reviewed
American jurisprudence with regard to hate speech provisions. In his
judgment, Chief Justice Dickson noted:
Those who attack the constitutionality of [section] 319(2) draw heavily on
the tenor of First Amendment jurisprudence in weighing the competing
freedoms and interests in this appeal, a reliance which is understandable
given the prevalent opinion that the criminalization of hate propaganda
violates the Bill of Rights.175
lived across the street from where he was staying.185 The accused
challenged the provision as violating his freedom of expression
under the First Amendment.186 The Supreme Court agreed and
overturned his conviction.187
In R.A.V., the city of St. Paul had argued that the provisions were
constitutional because they regulated “fighting words.”188 Indeed, the
Supreme Court had previously excluded threatening words, or
“fighting words,” from the scope of First Amendment protection
because “[f]ighting words are not a means of exchanging views,
rallying supporters, or registering a protest; they are directed against
individuals to provoke violence or to inflict injury.”189 However,
while the Court in R.A.V. reiterated that fighting words were outside
the scope of First Amendment protection, they found that it was
nonetheless unconstitutional to single out certain types of fighting
words for censure based on the underlying message expressed.190
Justice White, in his concurring opinion, stated, “[t]he mere fact that
expressive activity causes hurt feelings, offense, or resentment does
not render the expression unprotected.”191 While this is undoubtedly
true, the ordinance in question was not directed at hurt feelings or
offense. It also was not directed at resentment broadly, but at a
certain form of resentment: that which comes from being made to
feel as if one is not an equal member of society. Rather than balance
free speech with equality concerns, however, American
jurisprudence consistently characterizes the issue as one which pits
free speech against offense.192 Because, as previously noted, there is
CONCLUSION
As this article notes in the Introduction, the current Canadian
discussion on the legitimacy of government action to restrict hate
speech is being dominated by a group arguing that hate speech
restrictions are anti-democratic. In an effort to investigate this
argument, this article examined international law and standards on
hate speech provisions, as well as domestic law from some Western
democracies. In doing so, it uncovered wide acceptance of hate
speech restrictions both in international law and in every Western
democracy other than the United States. This article also made the
point that Canadian international obligations to implement hate
speech provisions, as well as other international legal standards in
favor of hate speech provisions, have been determined to be legally
persuasive by the Supreme Court of Canada—though by a majority
of only one justice.
During the course of this examination, this article also noted how
Levant’s movement and American jurisprudence balanced the
competing rights engaged by hate speech provisions, and argued that
these positions were incorrect. While Levant and American
jurisprudence view hate speech provisions as a balance between free
speech and offense, this article argued that hate speech provisions
must balance free speech and equality. In other words, in order to be
legitimate, hate speech provisions must have the promotion of
equality as their concern rather than the amelioration of offense.
It appears that if Levant, Steyn and their movement want to argue
that hate speech restrictions are anti-democratic, they must also
2010] HATE SPEECH PROVISIONS 155