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Mahoney, Kathleen --- "Hate Vilification Legislation and Freedom of Expression: Where Is the Balance?" [1994] AUJlHRights 21; (1994) 1(1) Australian Journal of Human Rights 353

Hate Vilification Legislation And Freedom Of Expression - Where Is The Balance?

Kathleen Mahoney[*]


Recently a Committee was struck to Advise the Attorney General of Victoria on Racial Vilification. Setting out to do their investigation, they asked themselves three questions: They were:

(1) Is any legislation warranted in current circumstances?

(2) Is any legislation justifiable?

(3) How broad should legislation be?

In this paper, I have used these same three questions to serve as a framework for my remarks.

In the first section I deal with the justification issue - whether the harm of hate speech outweighs the harm of limiting it. This is the freedom of expression/freedom from expression section where the traditional arguments put forward by civil libertarians will be critically examined for their ability to address inequality, discrimination and the competing rights of those targeted by hate speech.

In the third section, I look at international responses to hate speech, particularly in light of increasing neo-Nazi and neo-fascist activities in western democracies. The question of the responsibility of states to prevent the growth of such groups and prohibit hate propaganda will also be discussed.

In the concluding section, I look at the emerging right of equality and its relationship to civil liberties and human rights.

1. Is legislation warranted?

To determine whether or not legislation prohibiting hate propaganda is warranted, governments must be convinced that there is a pressing and substantial need for it, based on rational considerations. I argue that these criteria are met as the need is the avoidance of harm to individuals, to groups and to society at large.

The proliferation of racist hate messages is rapidly increasing throughout the western world. They are distributed through a variety of low and high technologies. Hate messages are known to be spread through anonymous phone calls and letters, poster, books, graffiti, magazines and pamphlets, cable television, videos, recorded telephone messages, computer networks, music recordings, bulk mail, and leafleting. The spoken or taunted message of hatred, probably still the most common form, can be conveyed on streets in schoolyards, at places of work, on college campuses, in community centres, at political rallies, and at most other places where people gather together. In recent years, racial hatred has evolved from words to action in ways which the western world has not seen since World War II. In Europe some political parties overtly promote racist platforms while others, thinly veil racism as a necessary part of generally repressive policies. More conspicuous than political parties are the various groups of skinheads, unofficial paramilitary formations and other groups of mainly young people that engage in violent racist attacks. All of this pales in comparison to the genocidal war in the former Yugoslavia where fed by hate propaganda, "ethnic cleansing" is the euphemism for mass killings, rape and torture of civilians for the simple reason of their Muslim religion and ethnicity.

Some forms of hate propaganda are most pernicious than others. Holocaust denial is especially pernicious because for survivors of the Holocaust, it is the essence of cruelty. It not only denies the harm done to them and belittles the enormous, indescribable pain they suffered and still suffer to this day, for those that were murdered, it defames their deaths.

It also deprives new generations the opportunity to learn from history. If successful, Holocaust denial has the potential of seriously undermining contemporary opposition to neo-fascism and neo-Nazism, particularly among young people who have no experience and little knowledge of the Nazi period.[1] Moreover, to deny the Holocaust ever happened undermines the legitimacy and credibility of the entire international regime of human rights. Since the close of the Second World War, the entire body of treaties and customary norms which now constitute the international law of human rights are rooted in the belief that the Holocaust marked the epitome of brutal consequences which flow from unchecked racism. If people can be convinced the Nazis had no systematic plan of genocide, then racism would not be as dangerous as supposed.

In these ways denial of the Holocaust goes far beyond the Jewish interest.

Another particularly pernicious form of hate propaganda is racist pornography. It uses media technology to merge zenophobia with misogyny with the result that hatred is sexualized and made into a kind of sexually arousing racism.

Like other forms of hate propaganda, its purpose is to distort the message of a group or class of people, to deny their humanity and to make them objects of ridicule and humiliation such that acts of aggression against them are perceived less seriously. But racist pornography goes further. In some forms, rape and sexual torture are methods of production and portrayals are direct, visual ones. The harm is more serious and immediate because of the overt infliction of pain and force its production requires. The permanent record of the abuse reproduced countless times to be enjoyed as "entertainment" by misogynist racists, creates unbearable ongoing suffering for those who suffered the abuse, their families and the members of their group.

Documented evidence exists that this form of hate propaganda was used by Nazis against Jews before and during World War II. Today it is being used in the Balkans war.[2] Video-taped rapes and sexual torture of Bosnian Muslim women by Serbian soldiers have been copied and distributed for use not only amongst soldiers but also for mass civilian consumption.[3] This should not really surprise anyone, as the mass marketing of sexual assault and abuse of women and girls is a multi-billion dollar trade in peacetime or in wartime usually protected by free speech principles.[4]

What must be understood is that whatever form it takes, the purpose and effect of hate propaganda is to lay the foundation for the mistreatment of members of the victimised group. Members of such groups respond to hate propaganda by being fearful and withdrawing from full participation in society. They are humiliated and degraded and their self-worth is undermined. As the Supreme Court of Canada has described it, hate propaganda is not merely offensive. It constitutes a serious attack on psychological and emotional health.[5] Society as a whole suffers because such expressions undermine freedom and core democratic values by creating discord between groups and an atmosphere conducive to discrimination and violence.[6] Therefore, hate propaganda is not a mere expression of intention to act in the future. It is an act, a consequence, an end in itself. At best it is a practice of discrimination.[7] At worst it is raw violence. Both are connected. Non-violent hate speech exists on a continuum which eventually and inevitably leads to violence once the weapons of segregation, disparagement and propaganda have done their work.

Social psychologist, Gordon Allport's analysis of the continuum effect is convincing in its appeal to common sense and historical experience. He says there are five stages of racial prejudice: expression of prejudicial attitudes, avoidance, discrimination, principal attack and extermination. Each stage is dependent upon and is connected to the preceding one. Allport used the history of the Third Reich as an example:

It was Hitler's antilocution that led Germans to avoid their Jewish neighbours and erstwhile friends. This preparation made it easier to enact the Nuremburg laws of discrimination, which in turn, made the subsequent burning of synagogues and street attacks on Jews seem natural. The final step in the macabre progression was the ovens at Auschwitz.[8]

In summary, when approached from a harms-based analysis, it is difficult to argue that laws should not be used to protect citizens from hate speech. The most fundamental purpose of any system of law is to protect humanity's basic existence. If it cannot or will not, then it too, is likely on the path of extinction.

II Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles?

The next step which is to determine whether legislation can be justified, is a balancing act. Governments must determine that the limits on hate speech are proportionate to the interests the legislation seeks to protect. I argue here that the traditional civil libertarian model of balancing is seriously flawed and that limitations on hate speech are clearly justifiable if the analysis is context-based and informed by democratic values.

To begin with, it is elementary and universally agreed that no rights and freedoms can be absolute. All important values in a free and democratic society must be qualified and balanced against other important and often competing values.[9] This process of definition, qualification and balancing is as much required with respect to the value of "freedom of speech": as it is with other values.

When values or rights collide, the balancing process starts with an examination of principles underlying the protection of freedom of expression. Numerous philosophers, judges, and law-makers have articulated these values which could be summarised as: the quest for truth; the promotion of individual self development and human flourishing; and the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.[10] These vital interests must be protected because they are essential to preventing tyranny and the smothering of creative and intellectual pursuits.

The metaphor widely adopted for thinking about the functions of the truth-seeking rationale is the marketplace of ideas.[11] In this marketplace, citizens meet as equals, and no idea is suppressed. The purpose of marketplace is to enable wise decisions to be made for the general good based on a hearing of all viewpoints. If relevant information in the form of opinion, doubt, disbelief or criticism is not heard, the results of the deliberations will be ill-considered or unbalanced.[12] The truth will not emerge.

The objective of free speech is thus result-oriented. Practical, concrete benefits are said to flow to the community from this process. As a result, almost all forms of speech should be protected. When it comes to extremist speech on the periphery of the freedom, some believe it, too, must be protected. If it is not, the important, highly valued speech at the core of the freedom is threatened. This is the "slippery slope" argument often used against government regulation of hate speech.

The strongest proponent of the marketplace of ideas approach to speech regulation is the civil libertarian movement.[13] Civil libertarians generally believe that freedom of expression is the most crucial freedom in a democratic society. Negative liberty, or non-intervention in the personal life of individuals, is the cornerstone of this philosophy. While hate propaganda is a concern to civil libertarians, they believe the only laws that can be justified are those prohibiting incitement to racial violence in situations of imminent peril. Where there is no "clear and present danger" of violence, civil libertarians say limits on speech are not permissible. To determine "clear and present danger" they ask whether the situation at hand is analogous to falsely shouting "Fire!" in a crowded theatre. If it is not, the speech limitations cannot be justified.[14]

Civil libertarians rely so heavily on the truth-seeking rationale to defend all forms of speech they extend it to the point of saying there is no such things as a false idea. What this means is that expressions that some races are inferior or that the Holocaust never happened, must be protected. All ideas deserve a public forum, and the way to combat ideas one does not agree with is through counter-expression.

A further proposition that civil libertarians rely on is the assertion that there is little if any, tangible harm that can result from the mere expression of words. They say words are not acts. Consequently, propaganda and pornography are labelled by them as merely "offensive material", nothing more.

On the practical side, the argument goes on that prosecuting hatemongers is counter-productive and dangerous. [15] Courts provide a forum for hate propagandists to reach a far larger audience than would otherwise be possible. By wrapping themselves in a martyr's cloak, they are able to elevate their cause to a level that it does nor deserve. Furthermore, because of vagueness in definition, anti-hate legislation may be abused. Civil libertarians fear that the law could result in inappropriate prosecutions of innocent groups or be used to silence intemperate remarks made in moments of passion. Finally, since hatemongers are such a small minority of obscure marginal individuals who command no substantial audience or following, there is no need for legislative measures to deal with them.[16]

It is my view that many of these arguments are seriously and fundamentally flawed. A good number of the assumptions which underlie them can be questioned both on theoretical and practical levels because they are outdated, they ignore harm to target groups, they are gender and class biased, and they overlook or minimise other fundamental democratic values.

First, the assumption that a commitment to the democratic system of government requires an unqualified and pre-eminent commitment to free speech [is?] problematic. It sets up an either/or proposition which is not only misleading, it has a distinct eighteenth century tone. It relies on the proposition that governments are a constant threat to the freedom of the citizens; that they are perpetually hostile and aggressive towards individuals and society and that once in possession of power, they will revert back to the autocratic powers of their predecessors.[17] In the context of western democracies in the twentieth century, this argument is overplayed. It is defensive, it tends to be rigid and unbending and it makes any attempt to limit or make exceptions to the free speech principle almost subversive. It acts as a form of closure for any further discussion.

The reality is that speech issues raised by racist and sexist hate propaganda are much different than those that faced fledgling democracies in the seventeenth and eighteenth centuries. To use the rhetoric and platitudes designed to protect discussion of public issues and free elections of that era to address subordinating and discriminatory forms of speech today, conceals newer social functions of the free speech ideal and minimises the harms and abuse speech can cause.

It is hard to imagine how the unhindered, wilful promotion of group hatred could be characterised as either elemental to the structure of democracy, or an advancement in the protection of freedom. In setting up a freedom of expression/democracy equation as an "either-or" proposition, inquiry and analysis the experience of disadvantaged or vulnerable members of society is not possible. This explains why few civil libertarians debate or even recognise the harms hate propaganda causes to women or racial and ethnic groups.

Modern democracies that respect equality and multiculturalism have accepted as a fundamental principle that legislative protection and government regulation are required to protect the vulnerable. To use the free speech doctrine as an instrument to permit disadvantaged or vulnerable groups to be seriously harmed by more powerful groups misunderstands the proper role of governments and free speech.[18] While great care must be taken to contain the exercise of state power, to view the government as villain is incorrect. Governments must speak on behalf of those who cannot be heard to facilitate the expression of their ideas and to promote the interests of tolerance, pluralism and individual autonomy. All constitutions in free societies embody this concept by permitting limitations on speech activity if those limitations are justified, reasonable and prescribed by law in the democratic context.[19]

A second and related problematic assumption underlying civil libertarian arguments is that hate propaganda laws necessarily put the government in the position of being the singular antagonist infringing individual's rights. (This is another version of the "martyr" argument). A more accurate characterisation is that racism is a group-based activity. Those who promote hatred, violence or degradation of a class, are aggressors in a social conflict between unequal groups. By prohibiting the public, wilful promotion of group hatred on the basis of race, religion or ethnicity or the violent, degrading or dehumanising sexual exploitation of women and children, the government advances the interests of the disadvantaged on the one hand as against the hatemongers on the other had. Where groups conflict, governments must draw a line between their claims, marking where one set of claims legitimately begin and the other fade away. If governments fail to make these assessments and draw lines, they fail in their responsibility to maintain social harmony in the society. When viewed this way, it makes more sense to argue that unless hate propagandists can justify limiting the equality rights of minority groups and women, government can justify limiting their expression.[20]

A third criticism is the degree to which civil libertarians rely on the truth-seeking rationale to defend racist and sexist hate propaganda. While the general proposition that open discussion advances the pursuit of truth cannot be questioned, the way civil libertarians use the truth rationale pushes the claim too far. For example, the proposition that it could be true that the Holocaust is a hoax, is hardly a persuasive basis upon which to defend such speech.

When speakers deliberately misrepresent the work of historians, misquote witnesses, fabricate evidence and cite non-existent authorities as Holocaust deniers do,[21] their speech is the antithesis of seeking truth through the free exchange of ideas. If at the same time the false statements seriously injure a racial, ethnic, religious or national group such that their rights and participation in society are compromised, the "truth rationale" is not a persuasive reason to protect the speech.

Similarly, opinions of pornographers which advocate the sexual torture or degradation of women cannot be said to contribute to truth-seeking.[22] The content in both examples fundamentally contradicts basic egalitarian principles and values of a free and democratic society. The more a society believes in the falseness of the speech, the weaker the "truth" justification becomes.

While it can be argued that these forms of extremist speech may be of value through educating the population about racial hatred and misogyny, it is far from clear that an open confrontation with racist and sexist hate propaganda in the marketplace of ideas leads to a richer belief in the truth. It is more likely that the opposite result occurs. Debasement of women in pornographic magazines, books, movies, films or television, on street corner news-stands, on covers of record albums and in shop windows is an ever increasing phenomenon. In Canada, sales of pornographic magazines increased by 326.7 percent between 1965 and 1989.[23] This represents an increase of at least fourteen times the growth of the Canadian population during the same period. Furthermore, the messages in pornography that women and children are sex objects are available to be violated, coerced, and subordinated at the will of men[24] is replicated in real life statistics which are also increasing at a very rapid rate. Widespread sexual assault, wife battery, sexual harassment and sexual abuse of children indicate that the competing idea, that women as human beings are equal to men and that children must be treated with dignity and respect, is not emerging from the marketplace of ideas in any significant way. The "value" of pornography as a truth-seeking device in these terms ranges from remote to none. It makes no sense to suggest that the uninhibited activity of pornographers or hate mongers is important to maintaining a belief that what they have to say is wrong. Rather than serving as a means to discover truth, hate propaganda conceals the truth about the target groups and takes away or chills their speech through a system of sexism or racism.

If one looks at other areas of social life where the primary objective is the pursuit of truth, the marketplace of ideas is not the model used. In the criminal justice system for example, speech is recognised as being important to the goal of learning the truth, but at the same time its potential to undermine the truth is clearly recognised. Parties may present their arguments as they wish, but speech that is inflammatory or highly emotive may be excluded because of its potential prejudicial effects on the judgement of the judge or jury. In other words, it is recognised that certain forms of speech can undermine the truth. In the case of highly emotive hate speech directed against minorities and women where the speech seeks to subvert the truth-seeking process itself, a forceful argument can be made that the interests of seeking truth work against, rather than in favour of speech.[25] Once again the values relied upon to support freedom of speech lose their force. The view that the truth will always win out in a free marketplace of ideas, is at best ignorant and naive, at worst, disingenuous and dangerous. Past and present history of mass killings, rapes, torture and other forms of racial, religious and ethnic violence provoked and sustained by hate propaganda should be the backdrop against which the truth value of hate speech is measured.

A further flaw in the "free market" argument is that it assumes equal, unhindered access where all citizens have the opportunity to communicate and be heard. The reality of today is that modern methods of mass media have altered the whole concept of communication as it was envisioned by nineteenth century liberals who developed the metaphor.[26] The mass media "owns" the skills and language techniques necessary to address the people. The marketplace of ideas, if it even did exist, has long ago given way to technological and social change. In today's world untruths can certainly prevail if powerful agencies with strong motives gain a hold in the market. Because equality of access to the media does not exist between advantaged and disadvantaged groups, reliance on the "marketplace" to protect the disadvantaged from the promotion of hatred against them is guaranteed to fail. Advantaged groups possess a disproportionate share of freedom of expression by virtue of their greater share of power and wealth. In a marketplace where some have a greater ability to speak and be heard than others, it is more likely that the ideas of the advantaged will emerge out of the competition of ideas, rather than the truth. For example, to assume as the civil libertarian philosophy does, that aborigines have the same access to speech as mining companies or that women and children have the same access as pornographers, is to create false equivalencies which perpetuate and ensure inequality and an unfair distribution of speech rights on the basis of class.

A further proposition which requires some comment is the argument that there is little, if any tangible harm that can result from the mere expression of words. This is evident by civil libertarian descriptions of hate propaganda as "offensive material".

By describing hate propaganda and pornography as merely "offensive", real harm of extremist speech is trivialised and avoided. When combined with the unquestioning use of the clear and present danger test as a line-drawing device, civil libertarians avoid any analysis of the social meaning of what is being done by hate propaganda.

First, the "offensive" categorisation wrongly places the harm within the victim's control. It suggests that if the victim is harmed, it is her or his fault because they could, or should, have avoided it - by averting their eyes or not listening. This form of victim blaming ignores the essence of discrimination, which is not how members of disadvantaged minorities feel about themselves, but rather how they are viewed by members of the dominant majority.

Second, the use of the "clear and present danger" test can only comprehend linear, individualised harm of the "John hit Mary" variety. It cannot take into account the way hate propaganda actually works. Its effects are subtle. It relies on fear and ignorance to engender indoctrination over time. It works by socialising, by establishing that racism is expected and permissible. Any requirement to prove "clear and present danger" not only ignores this reality, it ensures that very few, if any, limitations or prosecutions of hate speech could ever succeed.[27]

Third, the problem with the "clear and present danger" test is that it is a male norm. Like the self-defence doctrine, it is based on a "bar-room brawl" model envisioning emotional reactions of male combatants to hate speech.[28] It is highly unlikely that women victims of hate propaganda would ever be provoked to physical violence because of it. Rather than create a situate analogous to shouting "fire" in a crowded theatre, their reaction would more likely be to flee or otherwise disappear. By using such an exclusionary, gender biased test, civil libertarians effectively exclude women from any protection hate speech laws can provide.

Fourth, the test is inconsistent. In the hate propaganda context it assumes that words are only a prelude to action and cannot be prohibited because they are not "acts". But the test does not explain why other laws which limit speech but are not questioned. For example, laws prohibiting bribery, treason, blackmail, conspiracy, forms of verbal harassment, threatening and price fixing. All are prohibitions of forms of speech, yet none satisfy the clear and present danger test. From a legal standpoint they are considered to be "acts" consisting solely of words. It seems that as a line drawing device, the action/word distinction is selectively applied. The fact that words in and of themselves are capable of causing widespread harm requires a more principled test. It makes sense to limit racist and sexist hate propaganda when their real harm includes group-based enmity, ill will and prejudice that produce exclusion and subordination. These harms deserve sanction because they shape the social image and reputation of the target group, often controlling their opportunities more powerfully than their individual abilities do.[29]

Finally the civil libertarians' arguments regarding definition and "casting the net too wide", must be addressed. They say it is legislatively impossible to draw the distinctions required to avoid suppressing the wrong material. Therefore no lines should be drawn.

While it is correct for civil libertarians to say that words capable of more than one precise meaning may create opportunities for unintended distinctions to be drawn and that if imprecise words are used to describe a criminal offence, the law can be misused or misinterpreted to cause an unjust result. However, it is not correct for them to suggest that unless we have absolute certainty in words, we cannot have laws. This is a false suggestion because in any legal system, uncertainty is inevitable. The choice does not exist between a legal system without uncertainty and one with it. Open-ended words such as "reasonable: or "dangerous" create opportunities for abuse, but they are starting points of principled approaches in many areas of law. The words "hatred", "vilification" should be similarly viewed. Although exact precision in language is the optimum, imperfection cannot be used to foreclose action. Merely to ask how much uncertainty any given law carries with it, is an incomplete inquiry. The companion question, how much uncertainty we are prepared to live with given the interests the law is trying to protect, must also be asked. It is a question of balance in every case.

In conclusion on this point, I think it is obvious that the civil libertarian view provides something less than a fully inclusive concept of rights. When tested against a context-based analyses which goes beyond abstract rules into the messy reality of life, civil libertarian theory shows itself to be inherently limited and biased against those who seek social equality with the dominant, white male, elite class. This leads to the conclusion that speech rights can be justifiably limited as against equality rights. The question that remains is limited to what extent? To help answer this question I will now turn to the last section of the paper, the international response to racist speech and the scope of limitations.

III International Responses

The international community has committed itself to support the elimination of racism. It recognises that racist hate propaganda is integral to the perpetuation of racism, that it is illegitimate and is properly subject to control under international human rights law and therefore, the debate is not whether to control hate speech but how to control it. Under the Convention on the Elimination of all terms (? forms?) of Racial Discrimination[30] (which Australia has ratified), states are required to criminalise racial hate messages as well as participation in organisations which promote and incite racial discrimination. Article 4 declares that states "condemn all propaganda ... based on ideas or theories of superiority ... or which attempt to justify or promote racial hatred and discrimination in any form". The preamble to the Convention uses similar language. It states, "any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination". Other regional human rights treaties such as the European Convention on Human Rights and the American Declaration on Human Rights recognise the need to control hate propaganda.

Many individual countries have acted upon their international obligations and criminalised or otherwise regulated various forms of hate propaganda in their domestic laws.

The United Kingdom, for example, has criminalised incitement to discrimination and racial hatred under the Race Relations Act.[31] The publication or distribution of threatening, abusive or insulting written material or use of language in a public place fall within its scope. Although the prevention of imminent violence is an object of the legislation, it also prohibits the spread of race hatred, recognising its connection with violence.

Since 1992, Sweden, Austria, Italy, Estonia, Lithuania, Romania, Russia, Switzerland, Hungary, the Netherlands all embarked on new legal strategies to deal with hate propaganda in an attempt to meet the flood of racist and zenophobic manifestations unprecedented in their countries since the end of World War II. For similar reasons, as of February 1994, Austria, France, Germany, Israel and Switzerland have laws specifically designed to combat Holocaust denial. These measures have received international support, especially from the European Parliament whose resolutions on racism refer specifically to the Holocaust. The Italian Criminal Code makes it an offence to publish and disseminate false, exaggerated or misleading news liable to disrupt the public order.[32] The Danish Criminal Code deals with attacks based on religion and prohibits false speech against a variety of vulnerable social groups.[33]

Germany regulates hate speech through three criminal provisions.[34] Two embrace all forms of hate speech while the third specifically prohibits Holocaust denial. Article 130 of the Criminal Code prohibits attacks on human dignity by incitement to hate, Article 131 prohibits race-hatred writings, and Article 185 created an offence of insult. Article 194(1) allows victims of persecution during World War II to initiate prosecutions.

Canada has a criminal provision which prohibits three types of hate propaganda: advocacy of genocide; communications inciting hatred against an identifiable groups where a breach of the peace is likely to follow; and the public expression of ideas intended to promote hatred against an identifiable group.[35] A criminal provision which made it an offence to wilfully publish a statement, tale or news knowing it to be false that causes or is likely to cause injury to a public interest,[36] was struck down as a violation of freedom of expression on a constitutional challenge in 1992.[37] The case involved the publication of a pamphlet entitled, "Did Six Million Really Die?"

The Court said the legislation was unconstitutional because it lacked a specific purpose and was too broad in its scope. In determining whether legislation has a pressing and substantial purpose, the Court must look at the parliamentary intention at the time it was enacted. In this case, the section was originally drafted in the 13th century to protect the great men of the realm from publication of false news or tales which could threaten the security of the state. The majority of the Supreme Court of Canada was unwilling to convert the purpose of the section to one of encouraging racial harmony, saying such a change in purpose is not permissible in law. The Court also found that the section was too broad. The words "statement, tale or news" and "injury to the public interest" encompass such a broad range of historical and social speech, too much speech was threatened by the legislation. It is clear from the majority decision that if Parliament wishes to pass constitutionally sound legislation to deal with Holocaust deniers, it will have to be much more precise.

On the other hand in 1990, the Supreme Court did uphold the hate propaganda legislation which prohibits the public, wilful promotion of group hatred.

In that case, one James Keestra, a high school teacher, taught anti-semitic hate propaganda to his students during school hours, examined them and gave his views. Students who consulted sources contrary to Mr Keestra's teachings, such as encyclopedias, dictionaries and history books and argued that his anti-Semitic teachings were wrong, received poor grades. After being charged under the hate propaganda provisions, the accused challenged the law on the basis that it violated his constitutionally guaranteed right of freedom of expression.[38]

The case was appealed at different levels by both sides through to the Supreme Court of Canada where in a ground breaking decision, the legislation was upheld. The Court focused on the harm that is caused by hate propaganda to other constitutional rights - namely equality - as well as the psychological and emotional harm caused to the target group. When the harm of the speech was balanced against the rights of hate mongers to speak it, the court found that hate speech is low value speech which cannot outweigh the interests the legislation protects.

Some other interesting aspects of the judgement were the express rejection of the clear and present danger test on the basis that it was incapable of addressing the harms the Court was concerned about and the analogy drawn between racist hate propaganda and pornography. The latter provided a legal basis to support the constitutional validity of anti-pornography laws on the basis of the harms-based equality analysis used in the Keestra decision.

Another reason the court upheld the legislation was the importance of the Canadian commitment to multiculturalism. The Court said that attacks on groups need to be prevented if multiculturalism is to be preserved and enhanced. Looking to the underlying purposes of freedom of expression, the truth value of hate propaganda was found to be marginal as well as its contribution to other democratic values. The Court said hate speech undermines the value of protecting and fostering a vibrant democracy because it denies citizens equality and meaningful participation in the political process and its contribution to self-fullfilment and human flourishing is negligible. It found that hate speech not only chills or denies freedom of expression to those it targets, it undermines self-development and human flourishing among all members of society by engendering intolerance and prejudice.[39]

In addition to the Criminal Code hate propaganda provisions, Canada has a number of other laws which prohibit or otherwise regulate hate speech. The Canadian Human Rights Act[40] prohibits the use of the telephone for recording hate messages, the Broadcasting Act[41] addresses standards for radio television and pay television, prohibiting abusive comment likely to expose individuals or classes of individuals to hatred or contempt on the basis of race, ethnicity, religion, sex, colour, age or mental or physical disability; the Customs Act[42] prohibits the importation of hate propaganda; and the Canada Post Corporation Act[43] prohibits the use of the mail "for the purpose of transmitting or delivering anything that is obscene, indecent, immoral or scurrilous. Provincial human rights legislation in most provinces address discriminatory signs and symbols and some, like the Saskatchewan and Manitoba Codes, specifically address hate propaganda.[44] Their purpose is to educate and conciliate rather than to punish and deter.

Many other countries enacted specific hate propaganda provisions while retaining or adding sections addressed to specific types of malice such as Holocaust denial. I believe that all governments not only should act to protect their minorities, in this way, they must do so. This is because government inaction in the face of injurious racial vilification implicates the state in the illegal discrimination adding to the harm the targetted group suffer.

Professor Mari Matsuda describes the impact on individual members of target groups when governments fail to do something about it.[45]

"To be hated, despised and alone is the ultimate fear of all human beings. However irrational racist speech may be, it hits right at the emotional place where we feel the most pain. The aloneness comes not only from the hate message itself, but also from the government response of tolerance.

When ... the courts refuse redress for racist insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person.

The government's denial of personhood by denying legal recourse may be even more painful than the initial act of hatred. One can dismiss the hate groups as organisations of marginal people, but the state is the official embodiment of the society we live in."

Andrea Dworkin makes a similar point in her discussion of the U.S. Constitution's First Amendment protection of pornography and its impact on women:

"In the country where I live as a citizen, there is a pornography of the humiliation of women where every single way of humiliating a human being is taken to be a form of sexual pleasure for the viewer and for the victim, where women are covered in filth, including feces, including mud, including paint, including blood, including semen; where women are tortured for the sexual pleasure of those who watch and those who do the torture, where women are murdered for the sexual pleasure of murdering women, and this material exists because it is fun, because it is entertainment, because it is a form of pleasure, and there are those who say it is a form of freedom.

Certainly it is freedom for those who do it. Certainly it is freedom for those who use it as entertainment, but we are also asked to believe that is freedom for those [to] whom it is done. I live in a country where if you film any act of humiliation or torture, and if the victim is a women, the film is both entertainment and it is protected speech. Now that tells me something about what it means to be a woman citizen in this country and the meaning of being second class.[46]

Failure to protect vulnerable groups from hate speech burdens them with a disproportionate cost of speech promotion when they are already disadvantaged. This violates the principle of equality before the law and equal protection of the law. In other words, it is discrimination by failure to act. When pornographers can freely ply their trade in the face of judicial findings of that it seriously harms women,[47] when white supremacists or other racist groups can openly carry on their activities with unimpeded access to public streets and university campuses, the state, effectively, promotes or at least condones, racism and sexism. The spectre of the American Nazi party in full regalia, marching with policy protection through a suburb of Holocaust survivors, would be such a statement of state authorised racism.[48] Intellectual pluralism and tolerance urged by civil libertarians does not and cannot mean that racism or sexism will be tolerated.[49]


Throughout this paper I have discussed principles taken from the thoughts of Locke, Hobbs, Rosseau, and Mill,[50] and disagree with the way many of them are applied by civil libertarians to the present day context.

When the debate involves the clash of interests presented by hate propaganda and freedom of speech, eighteenth and nineteenth century theories that served a need that modern democracies have outgrown do not seem to be the best way to solve the problem.

In recent years, the proliferation of racist and sexist hate propaganda has created dissatisfaction with the traditional civil libertarian explanations and theories which protect it. More and more people are asking "Who is being protected, at whose expense?" They argue that the social and political functions of speech have changed and that the principle itself may require new content and meaning.

While attaining the truth, achieving and maintaining the democratic values of self-government and achieving personal growth through self-expression are critically important reasons to protect speech from government interference, the real value of hate speech must be assessed against the real harms it inflicts. Reliance on traditional abstract values, such as the value of seeking "the truth" begins to break down when these forms of "speech" strike at the heart of other values deeply cherished in a free and democratic society - particularly the value of equality. No democracy should be embarrassed or uncomfortable prioritising the needs of the impoverished, disempowered, and disadvantaged over those who are more privileged.

The commitment to civil liberties, while a good start, is only the beginning. The notion that the law invokes and serves a sort of universal "man" rather than particular individual or social categories and therefore provides equally for anyone, anywhere, is increasingly under attack. Not only is the idea of human abstraction fundamentally misconceived, civil libertarians themselves anticipate and assume a very particular type of social order in which a particular type of individual is thought to flourish. It is this individual not anyone, whom free speech principles, as they seem, endeavour to serve. Human rights start where civil liberties end. Human rights go beyond the relationship of the individual to the state. They involve the state's intervention and assistance because individuals as members of groups are often disadvantaged for arbitrary reasons beyond their control.

Equality is an emerging right. Establishing it requires reciprocity of respect and parity of regard for physical dignity and personal integrity. Legal interpretation must be guided by these values and goals if the mandate of equality is to be met. Problems of the future cannot always be solved using the intellectual frameworks of the past. The goal of a more humane and egalitarian society requires new ways of talking and thinking about the problems of free expression; otherwise we will find the progressive tools of an earlier era turned against progress. I hope that Canadians and Australians will continue along the path that has been mapped by a few in deciding what limits can be set on the public, wilful promotion of group hatred based on a context-driven, harm-based equality analysis which I have attempted to provide in this paper. If they do, rights and duties will be allocated equitably, not simply on the basis of abstract doctrinally stagnant grand principles that thwart rather than achieve liberty and substantive equality.


[*]Kathleen Mahoney is a Professor of Law at the University of Calgary, Canada. This paper was originally presented at a conference on Anti-semitism and Racism in Contempory Australia organised by the Australian In stitue of Jewish Affairs in Melbourne 11-12 June 1994, and was published by the Bureau of Ethnic Affairs Qld and the Ehtnic Affairs Commission of New South Wales. The Australian Journal of Human Rights thanks these bodies for permission to reprint this article.

[1] R v Zundel (1992) 95 DLR (4th) 202 at 228.

[2] Catherine MacKinnon, Ms Magazine July/August 1993 p.24 at 26-27

[3] Ibid.

[4] See also Catherine Itzin, "Pornography and Capitalism: The UK Pornography Industry" in Pornography, Women, Violence and Civil Liberties Itzin. ed. at p.76-88.

[5] R v Zundel (1992) 95 DLR (4th) 202 at 228 per Cory, J (diss).

[6] R v Keestra [1990] 2 W.W.R. 1 at 42. In coming to these conclusions the Court relied on the findings of a number of government and other committees including the House of Commons Special Committee on Participation of visible minorities in Canadian Society, Equality Now! (1984) p.1-6, 69-74 the Canadian Law Reform Commission, Working Paper 50, Hate Propaganda (1986) p.36; the Report of the Special Committee on Hate Propaganda in Canada ("The Cohen Report") (1966) p.8, 11-15, 24, 30, 59, 66, 214; the Canadian Human Rights Commission, Annual Report, 1989 (199), p.22; McAlpine, Report Arising Out of the Activities of the Klu Klux Klan in British Columbia (1981); Norman, McAlpine and Weistein, Report of the Special Committee on Racial and Religious Hatred (1984), Canadian Bar Association, p.12.

[7] Ibid. The Supreme Court of Canada also made the point at unchecked hate propaganda also makes the concept of multiculturalism in a true democracy impossible to attain.

[8] Gordon Allport, The Nature of Prejudice 14-15 (Addison-Wesley, 1954)

[9] Reference re: Public Service Employee Relations Act (1987), 38 D.L.R. (412) 161 at p.184, Dickson CJC.

[10] See Irwin Toy Ltd v Quebec (Attorney General, (1989) I.S.C.R. 927, 976, aff'g Ford v Quebec (Attorney General), (1988) Z.S.C.R. 712, 765-767.

[11] Abrams v United States, 250 U.S. 6'6 R 620 (919), Holmes, J (diss).

[12] T. Emerson, "Toward a General Theory of the First Amendment", 72 Yale L. 5.877 at 882-83.

[13] For an overview of civil libertarian thought, see A. Borovoy, "When Freedoms Collide: The Case for our Civil Liberties" (Toronto: Lester and Orphen Dennys, 1988) or A. Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979).

[14] Brandenburg v Ohio, [1969] USSC 139; 395, U.S. 444 at 477 (1969)

[15] See for example, Alan Borovoy, "When Freedoms Collide: The Case for our Civil Liberties" (Toronto: Lester and Orphen Dennys, 1988) at 40-41.

[16] Ibid, at 48-53.

[17] Lee C Bollinger, "The Tolerant Society", (Oxford University Press, 1986), p.79.

[18] JR v Wholesale Travel Groups Inc (1991) 3 S.C.R. 154 this principle was enunciated by the Supreme Court of Canada. It was later applied in the hate propaganda context in R v Zundel supra note at p.229.

[19] For a discussion in the American context, see David Partlett, "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech" (1989) 22 V. and J. Transnat'l L.431 at 459 and 468-469. Section 1 of the Canadian Charter of Rights and Freedoms clearly sets out the balancing concept. It states, that the Charter "guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

[20] Kathleen Mahoney, "The Limits of Liberalism in Canadian Perspectives on Legal Theory, Richard Devlin ed., (Eamon Montgomery 1991) at p.64.

[21] See R v Zundel (1992) 95 DLR (4th) 202 at 212-213. The defendant, Ernst Zundel was charged under 5.181 of the Canadian Criminal Code as a result of his publicatoin "Did Six Million Really Die?", which denied the fact of the Holocaust during World War Two. In the decision cited above, Justice Cory of the Supreme Court of Canada in deciding on the constitutional of the section, described Zundel's "evidence" at 212-213.

[22] See R v Butler [1992] 1 S.C.R. 432 where the Court adopted a harms-based equality analysis to justify obscenity leave.

[23] Report of the Committee on Sexual Offences Against Children and Youths, Canadian Dept. of Justice (Badgleyed., 1984).

[24] Department of Justice (Canadian) special committee on Pornography and Prostitution Report (1983) at 11.

[25] Lee Bollinger, "The Tolerant Society" (Clarendon Press, 1986) at 57, 58.

[26] See for example, John Stuart Mill, "On Liberty" (1859), A. Castell ed. (1949).

[27] Dickson, CJC in the Keestra case Supra, note 7, rejected the clear and present danger test for three reasons.

[28] See R v Lavellee [1990] 1 S.C.R. 852 where the Supreme Court of Canada examined and corected the gender bias inherent in the self defence doctrine as it applied to battered wives who fight back.

[29] For a discussion of the harms of racist hate speech see Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story", (1989) Michigan Law Rev. 2326-2341; Richard Delgado, "Words that wound: A Tort Action for Racial Insults, Epithets, and Name-Calling", (1982), 17 Harv. Civ. Rts. Lib. L.R. 133.

[30] 660 U.N.T.S. 195, Can. T.S. 1970 No. 28, at 4.

[31] 1971 (NZ), No. 150, S.25.

[32] Alessandro Pace, "Constitutional Protection of Freedom of Expression in Italy", European Review of Public law 71 (1990) at 84.

[33] See K. Lasson, "Racial Defamation as Free Speech: Abusing the First Amendment" (1985), 17 Colum. Hum. Rts. L. Rev 11 at 51.

[34] See Eric Stein, "History Against Free Speech: The New German Law Against the Auschwitz - and other - Lies" (1986) 85 Mich. L. Rev. 277.

[35] Criminal Code R.S.C., ch C-46 S. 319 (1985) See also, Kathleen Mahoney, "The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography", Law and Contempt. Probs. Vol 55, Winter 1992, No. 1.77.

[36] Criminal Code, R.S.C. 1985, c. C-46 S.181.

[37] R v Zundel (1992) 95 DLR (4th) 202.

[38] R v. Keestra (1984), 19 C.C.C. (3d) 254. See also K. Mahoney, "The Limits of Liberalism" in Canadian Perspectives on Legal Theory, R. Devlin ed., 57 at 58.

[39] R v Keestra (1990) 3 S.C.R. at 744-749, 37. The plaintiff was charged for publishing an anti-Semitic Holocaust denied pamphlet entitled: Did Six Million Really Die.

[40] S.C. 1976-77, c. 33, as amended by S.C. 1977-78, c.22, s.5; S.C. 1980-81. c.54, Sched; S.C. 1980-81-82, c.111, Sched IV, s.2; S.C. 1981-82-83, c.143; and S.C. 1983-84, c.21, ss73 and 74.

[41] S.C. 1967-68, c.25 s.1.

[42] R S.C. 1970, c.58; Customs Tariff, R.S.C. 1970, c.60.

[43] S.C. 1980-81-82-83, c.54.

[44] S.S. 1979, c.5-24. I as amj. S.M. 1974, c.65 s.2.

[45] Mari Matsuda, supra note 29 p.2338.

[46] A. Dworkin, "Pornography is a Civil Rights Issue for Women" (1987-88) 21 Univ. of Michigan J. of Law Reform 55, 56.

[47] American Booksellers Ass'n Inc v Hudnut, 1065 Ct 1772 (1986), reh den. 106 S. Ct 1664 (1986); 771 F. 2nd 323 (7th Cir. 1985).

[48] See Collin v Smith 578 F. 2d. 1197 (7th Circ, 1978) Certiorari denied [1978] USSC 187; 439 U.S. 916.

[49] Rosalie Abella, Keynote Address, "From Civil Liberties to Human Rights Acknowledging the Differences", in Human Rights in the Twenty First Century: A Global Challenge, Mahoney and Mahoney eds. Nijboff, eds (1992) p.6.

[50] See John Stuart Mill, On Liberty (1859), A. Castell, ed, (1949); J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971); J. Locke, Essay Concerning Understanding (Oxford: Clarendon Press, 1984); J. Locke, Two Treaties of Government (New York: New American Library, 1965).

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