The Challenge of Hate Speech
In a new special issue of Review of Constitutional Studies on the 40th anniversary of the Charter I have a paper titled “Beyond the Hate Speech Law Debate: A Charter Values Approach to Free Expression.” (Feel free to email me for a copy).
In the paper I argue that debates about what to do about hate speech, and especially over hate speech laws, falsely frame the central problem as pitting free expression principles against equality and diversity. I argue that in fact there are expression-enhancing ways to mitigate the harms of hateful expression, to address the more systemic problems of exclusion, and to redress the dignity-effacing consequences of hate.
The paper itself explores these policy responses through the lens of ‘Charter values’, and the idea that decision makers and institutional leaders can exceed the Charter’s minimum requirements when implementing policies as well as crafting policies that support both equality rights and free expression principles. It includes a case study of my own employer, the University of Waterloo, and responses to specific incidents of potential hate speech and controversial speakers, as well as broader policy responses to issues of exclusion and oppression.
Moving beyond narrow debates about hate speech laws and state censorship practices is important for several reasons. First, there’s scant evidence that hate speech laws do much of anything to mitigate hate speech. Few people are charged on an annual basis, in part because the threshold for hateful speech to be defined as unlawful hate speech is very high (and rightly so, given the value we place on free expression). The Supreme Court has determined that for expression to qualify as hate speech it must rise to the level of an attempt to vilify or instill detestation in an identified group.
Second, and related to this threshold, most of the harm we associate with hate speech - the attack on the dignity of targets of hate speech, the spread of hate, the potential for hate speech to lead to acts of discrimination or violence, etc. - are just as likely, if not far more prevalent, in the dog whistles, hateful utterances, and disinformation that often accompanies hateful expression but does not rise to the level of unlawful hate speech. Indeed, vile hate speech leads most people to recoil; it’s the lower level stereotypes, innuendo, and dog whistle type language that penetrates societal discourse and likely does a lot more to inform people’s attitudes and values in a nefarious way.
Third, the power to punish and censor comes with dangerous unintended consequences. The state and police overreach and censor expression nowhere close to the line (examples cited by the Court itself include blocking the importation of Salmon Rushdie’s The Satanic Versus and charging people for anodyne posters). Worse still, the power to punish and censor is frequently turned against the groups hate speech laws are designed to protect. One only needs to look at the anti-critical race theory suppression tactics in many US states to see where the power to censor can lead.
The paper builds upon a chapter I wrote in an edited book I published earlier this year, Dilemmas of Free Expression. My chapter focuses on the complex questions of harm implicated by hate speech, and the social scientific evidence available on harm. We too often imagine a unidirectional cause-and-effect of hate speech: someone says a hateful thing, it leads to hate and other harms. But hate speech is also a symptom of hate, and on many, if not most, occasions a narrow focus on the speech act and not the root causes of hatred means we do little to nothing to address the systemic problems.
The collection includes chapters on the regulation of social media, protest, deplatforming, campus speech issues, regulating elections, compelled speech, defamation and anti-SLAPP legislation, language rights, and Indigenous conceptions of knowledge dissemination. It is well worth checking out if these topics are of interest!