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Hate Speech and the Rights Cultures of Canada and the United States
Brooks is Professor in the Department of Political Science at the
University of Windsor (Canada), where he teaches American Politics,
and Adjunct Professor at the University of Michigan, where he teaches
In recent years the traditional characterization of Canada following the
social and political lead of the United States, catching up to trends
and developments whose cutting edge is south of the border, appears to
have been turned on its head. On
a number of issue fronts including gay marriage, the decriminalisation
of marijuana, sexual assault law, and hate crime, judicial rulings and
legislative developments in Canada are often pointed to by American
admirers as signposts along a road their own society should be taking.
was how the lead editorial in characterized what it saw as the
emergence of the “hip,” socially progressive and multiculturally
tolerant society on America’s doorstep.
This interpretation of Canada as having caught up to and surpassed the
United States as a society respectful of rights and, moreover, as
having been fundamentally transformed by the Charter revolution is, I
believe, seriously misleading in two respects.
First, the more statist and elitist qualities of Canadian
political life compared to the United States remain largely
undiminished, although better concealed than in the past by the
prominence of rights talk and the much greater involvement and
influence in the Charter era of so-called equality seeking groups.
This argument has been made by many and will not be revisited
Second, what most commentators conclude to be a fairly dramatic shift
in Canadians core values is, I would argue, firmly anchored in
Canada’s pre-Charter political culture.
Moreover, interpretations of Canadian value change in the
Charter era usually and mistakenly conclude that the Charter has in
some ways Americanised Canadian political culture.
Beyond the obvious fact of an elevated awareness of rights and
their embededness in the constitution, this claim is seriously
misleading. Instead, I would argue
that Canadians, and even more so their opinion-leaders and
policy-makers, have tended to adapt rights talk and Charter values to
ways of thinking about citizen-state relations and personal freedom
versus social order that existed before the Charter’s adoption.
In order to demonstrate the plausibility of this argument I will examine
the case of hate speech in Canada and the United States.
In particular, I will show that in Canada the interpretation of
what constitutes hate speech that falls outside the protection of the
Charter stresses the type of
risk, not the probability that actual harm may be incurred by the
target(s) of the message. Courts
in the United States have long made the probable harm to the targets
of hate speech, or the likelihood that speech will incite violence,
their litmus test in determining whether hateful speech is protected
under the First Amendment. This
difference between judicial interpretation in the two countries
reflects an underlying and longstanding difference in how personal
freedom is conceptualised in the two countries.
Hate speech, as distinct from other older forms of inflammatory and
damaging expression such as slander, libel and group defamation, is a
relatively recent concept. Inspired
by article 20(2) of the United Nations International Covenant on Civil
and Political Rights and article 4 of the Convention on Elimination of
All Forms of Racial Discrimination, both passed in 1966, virtually all
western democracies have incorporated various hate speech/propaganda
provisions into their criminal codes.
While the precise formulation of what constitutes hate speech
varies significantly across institutional speech codes, human rights
acts, and criminal codes, the fundamental idea is that
“speech”—and this could include the written word, still images,
video, music lyrics, etc.—that incites or advocates hatred,
hostility, discrimination, or violence against the members of a group
identifiable by its colour, race, ethnicity, religion or some other
minority trait (in recent years sexual preference has been added to
hate speech and hate crime laws in some jurisdictions) is prohibited.
In the case of some institutional speech codes, such as those
at many universities, and the provisions of non-criminal laws that
prohibit and punish hate speech, such as those found in human rights
codes, expression that is determined to be offensive, insulting or
hurtful may also be banned and violations punishable.
We are concerned here, however, with the criminalisation of
The scope of hate law is, of course, broader than provisions relating to
speech. Criminal acts that
are deemed to be prompted or aggravated by hatred toward the group of
which the victim is a representative constitute another important
category of hate crime. Laws
that punish on the basis of motivation raise chiefly equality rights
and social tolerance issues rather than free speech ones.
Virtually all state legislatures have passed hate crime laws of one sort
or another, the most common sort being that which imposes additional
punishment for hate-motivated criminal acts.
Under Title 28, Section 994 of the United States Criminal Code,
hate crime is defined as “crime that is motivated by the actual or
perceived race, colour, religion, national origin, ethnicity, gender,
disability, or sexual orientation of any person.” In addition, under
the Hate Crimes Statistics Act of 1990, the federal government
maintains a database of crimes that conform to the above definition.
Neither Congress nor the states have enacted hate speech/propaganda laws
that specifically target speech. State
laws cover actual intimidation, harassment, assault, and breach of the
peace where hatred toward the members of a group is shown to have been
a contributing factor. California’s
hate law, section 422.6 of the state penal code, specifically declares
that, “no person shall be convicted of [a hate crime] based upon
speech alone, except upon a showing that the speech itself threatened
violence against a specific person or group of persons and that the
defendant had the apparent ability to carry out the threat.”
There are obvious echoes of both the fighting
words and imminent danger
tests in this provision of California law.
The situation in Canada is quite different. It is no exaggeration to say that the public expression of group-targeted hatred, independent of whatever consequences might or might not flow from such expression, is considered a crime. Canada’s criminal code distinguishes between three punishable forms of hate speech:
The first and third focus of what Canada’s criminal code designates as hate speech, advocating genocide and the wilful promotion of hatred, are of particular interest. The second one, public incitement of hatred, involves speech that would be considered fighting words, placing the targets of such speech in imminent danger of harm, and so would not be protected by the First Amendment in the United States any more than it would under s.2 of Canada’s Charter of Rights and Freedoms.
Advocating genocide, the first form of hate speech identified in
Canada’s criminal code, is considered to be a crime whether or not
such advocacy is likely to influence the thinking or behaviour of
those who are exposed to such messages.
This point needs to be emphasized: the
content of the message is the crime.
No mitigating defence is specified in Canada’s law and
violation of this prohibition is in no way made contingent on the
state’s capacity to demonstrate malicious intent or probable
consequences for the members of a specific group.
It is, instead, assumed that the sheer fact of advocating
genocide inflicts harm on a pluralistic society that values the
tolerance of diversity.
Content is also the crime in the case of the criminal code’s
prohibition against the wilful promotion of hatred. Canadian law
specifies a handful of defences that may extend constitutional
protection to such speech. These
include the truth of the statements (the onus is placed on the accused
to establish their truth); that the accused acted in good faith in
expressing a view on a religious subject; that the accused had
reasonable grounds for believing the statements and they were relevant
to a subject of public interest, the discussion of which was for the
public benefit; or if the statements were made for the purpose of
pointing out and abolishing hateful sentiments toward an identifiable
group in Canada. The state
is not required to demonstrate that the members of any group are
placed in imminent danger by the speech in question or that the speech
has any social consequences whatsoever beyond the public expression of
hateful views that may be based on falsehoods and ill will.
Again, it is content rather than consequences that is the basis
for denying such speech constitutional protection.
In 2002 the Canadian parliament passed the Immigration and Refugee
Protection Act. Section 34
of this law enables the federal government to deport persons on the
grounds that they represent “a danger to the security of Canada.”
As in the case of s.319 of the Criminal Code, it appears that
the content of the accused speech and/or associations with others,
regardless of consequences, is deemed sufficient basis for punishment.
Indeed, the recent deportation proceeding launched under s.33
of the Immigration and Refugee Act, targeted at neo-Nazi publicist
Ernst Zundel, shows that content is precisely the test envisaged under
Interpretation of Hate Speech
The difference between the Canadian and American approaches to hate
speech become starkly evident when one turns to judicial
interpretation of how far and in what circumstances the constitutional
guarantee of free speech in each country extends to speech that
expresses a hateful message. The
key ruling in Canada is the Supreme Court’s 1990 decision in R. v.
Keegstra. In the United States the decisions in Brandenburg v. Ohio
(1969), R.A.V. v. St. Paul (1992), and Wisconsin v. Mitchell (1993)
together provide a picture of the Supreme Court’s position on hate
speech and its relationship to the first amendment.
All of these rulings have been examined in great detail by
others, so I will limit myself to brief summaries of the judicial
interpretation of hate speech in Canada and the United States.
James Keegstra was an Alberta high school teacher who taught his students
that the Holocaust was a hoax and that an international Jewish
conspiracy pulled much of the world’s political, economic and
cultural strings. He was
charged under s. 319(2) of the Criminal Code.
His original conviction by a trial court was overturned by the
Alberta Court of Appeal on the grounds that s.319(2) violated the
Charter’s guarantee of freedom of expression and that this
infringement could not be justified under s.1, the reasonable limits
clause of the Charter. The
Supreme Court of Canada disagreed and, on appeal, upheld Keegstra’s
original conviction and the constitutionality of s 319(2) of the
In a 4 to 3 ruling, the majority on Canada’s highest court held that
the content of speech, in and of itself, could be considered so
offensive as to place it outside the protection of s.2 of the Charter.
They reasoned that the “pain suffered by target group
members,” Canada’s “international commitments to eradicate hate
propaganda,” “Canada’s commitment to the values of equality and
multiculturalism in ss.15 and 27 of the Charter,” and “our
historical knowledge of the potentially catastrophic effects of the
promotion of hatred” combined to make s. 319(2) of the Criminal Code
a reasonable limit on freedom of expression.
The majority’s ruling in Keegstra paid virtually no attention to the
question of whether the messages communicated by the accused placed
anyone or any group of persons in imminent peril.
Such a test was considered to be wholly unnecessary.
Instead, the majority accepted the argument that some speech is
quite simply inconsistent with the sort of society that Canada is or
ought to be and therefore should not be tolerated by law and protected
by the constitution. Here
is what the court said:
There is obviously a rational connection between the prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(20) is also a measure by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized…
Hate propaganda contributes little to the aspirations of Canadians or
Canada in either the quest for truth, the promotion of individual
self-development of the protection and fostering of a vibrant
democracy where the participation of all individuals is accepted and
encouraged…Consequently, the suppression of hate propaganda
represents impairment of the individual’s freedom of expression
which is not of a most serious nature…
Indeed, one may quite plausibly contend that it is through rejecting
hate propaganda that the state can best encourage the protection of
values central to freedom of expression, while simultaneously
demonstrating dislike for the vision forwarded by hate-mongers.
In this regard, the reaction to various types of expression by
a democratic government may be perceived as meaningful expression on
behalf of the vast majority of citizens.
Writing on behalf of the majority, Justice Dickson stated that “The
main argument of those who would strike down s. 319(2) is that it
creates a real possibility of punishing expression that is not hate
propaganda,” and thus the prohibition is
overbroad. This claim is
not exactly true. Canadian
civil libertarians like Edward Greenspan object to Canada’s hate
speech law on the grounds that the content of speech should never be
the test of whether it deserves constitutional protection. Offensive,
insulting and hurtful speech, including speech whose content can be
demonstrated to be false, is not, these critics say, less deserving of
constitutional protection. “But
the prevailing view today,” Greenspan observes, “is that
people who hold wrong and hurtful opinions should be punished for the
good of society.” Canada’s
hate speech law creates, he argues, “a social right not to be
offended. Words that
wound, or ‘assaultive speech’ are now the subject of a social
imperative in Canada and a crime”
The dissenting opinion in Keegstra argued that s. 319(2) of the Criminal
Code should be considered unconstitutional on several grounds.
“[S]tatements promoting hatred are not akin to threats or
violence” said Justice McLaughlin,
thereby indicating that some standard of imminent danger or plausible
peril experienced by the targets of the statements should be used in
determining whether they fall into the category of constitutionally
protected speech. The dissenting opinion also rejected the view that,
at least in the case of hate speech, freedom of expression is
legitimately restricted in order to protect and promote the Charter
values of equality and multiculturalism.
Third, McLaughlin and her colleagues maintained “that
[freedom of expression] does not protect only justified or meritorious
expression…If a guarantee of free expression is to be meaningful, it
must protect expression which challenges even the very basic
conceptions about our society.” Finally, and related to the
previous point, the dissenting opinion argued that Canada’s hate law
amounted to a form of censorship.
Although the Criminal Code’s prohibition against hate speech
excludes “private conversations”—when does a private
communication become a public one?—McLaughlin argued that the
vagueness of the ban on hate speech “may have a chilling effect
on legitimate activities important to our society by subjecting
innocent persons to constraints born out of a fear of the criminal
This dissent sounds, in fact, very much like the objections that the
United States Supreme Court has raised to laws that attempt to limit
speech based on content. Let
us now turn to the American jurisprudence on this question.
2. United States
The case of Brandenburg v. Ohio (1969), which established the imminent
danger test, is still the cornerstone decision for an understanding of
when hate speech loses the protection of the First Amendment.
Clarence Brandenburg, a Ku Klux Klan leader, made what some
considered to be incendiary statements at a Klan rally.
He was charged under an Ohio state statute, but his conviction
was overturned on appeal to the Supreme Court.
The court ruled that only speech that poses an imminent danger
of unlawful action, where the speaker has the intention to incite such
action and there is the likelihood that this will be the consequence
of his or her speech, may be restricted and punished by law.
The content of the speech, even when that content involves the
advocacy of the use of force or violating the law, is not a
permissible basis for denying First Amendment protection to speech.
The issue of content-based restrictions arose again in the case of R.A.V.
v. St. Paul (1992). A
group of teenagers had erected a cross in the yard of a black family,
setting it aflame in a gesture evocative of the racist intimidation
practiced by the KKK over its history.
The accused was charged under the St. Paul’s Bias-Motivated
Crime Ordinance, which banned the display on public and private
property of a symbol “which one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others on the basis of
race, colour, creed, religion or gender.”
A burning cross was specifically mentioned in the ordinance as
a prohibited symbol.
In its ruling the court acknowledge that a few categories of speech,
including obscenity, defamation, and fighting words, could be denied
First Amendment protection based on their content.
But even in these instances, said the court, “government
may not regulate them based on hostility, or favouritism, towards a
non-proscribable message they contain.” Hate speech, whether
motivated by racism or some other prejudice, sentiment or ideology,
does not involve a proscribable message unless and until it shades
into the category of fighting words or is intended and is likely to
have as its consequence unlawful action.
The court’s reasoning was as follows:
The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression – it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting [505 U.S. 377, 394] words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas.
The spirit of the ordinance that was ruled unconstitutional in R.A.V. v.
St. Paul is, of course, virtually identical to that which is embodied
in s. 319(2) of Canada’s Criminal Code.
But unlike Canada’s highest court, the United States Supreme
Court has taken the position that free speech is so central to the
constitution and American democracy that its exercise cannot be denied
to those who say nasty, offensive, hateful things unless it appears
likely that their speech will lead to unlawful action.
“Let there be no mistake about our belief that burning a
cross in someone’s front yard is reprehensible,” said the court, “But
[government] has sufficient means at its disposal to prevent such
behaviour without adding the First Amendment to the fire.”
In Wisconsin v. Mitchell (1993) the Supreme Court reiterated the line of
reasoning found in the R.A.V. v. St. Paul ruling, in a case involving
a state law that provided for additional punishment for crimes where
bias appeared to be a motivating factor.
Mitchell instigated an attack by a group of young black males
on a young white male after having seen a movie in which white males
attack a praying black male because of his race.
Mitchell’s lawyer argued that the penalty-enhancement
provision of Wisconsin’s criminal law involved a violation of free
speech and could have a “chilling effect” on freedom of
expression. The United
States Supreme Court rejected these arguments on the grounds that “physical
assault is not, by any stretch of the imagination, expressive conduct
protected by the First Amendment.”
This fact made the singling out of bias- and hate-based
motivation in the Mitchell case different from the law in question in
the case of R.A.V. v. St. Paul, where that law was aimed at content,
not action, expression, not assault.
The ruling in Wisconsin v. Mitchell is worth noting here
because it makes clear that hateful and biased motivation can be
punished in the United States, but the mere
expression of hatred and bias may not.
As the preceding cases show, judges in Canada and the United States have
taken significantly different approaches toward hate speech and its
relationship to the guarantee of freedom of expression found in the
Charter and the First Amendment, respectively.
That difference boils down to this: content-based restrictions
on free speech are not, on that basis alone, constitutional in the
United States, but some content-based restrictions are constitutional
in Canada. The doctrine of
preferred position clearly is reflected in American courts’
willingness to extend First Amendment protection to undeniably hateful
messages that, in Canada, would be considered criminal violations of
s. 319 of the Criminal Code. Canadian
courts have never taken the position that freedom of expression should
be elevated over other democratic rights and freedoms, whether these
are explicitly set down in the Charter or are part of what the Supreme
Court has called Canada’s normative “constitutional
It is clear, therefore, that entrenching the guarantee of freedom of
expression in the Charter has not resulted in an Americanisation of
Canadian rights jurisprudence and rights culture, at least where hate
speech is concerned. The
rulings of the Supreme Court and lesser Canadian courts on cases
brought under the hate speech provisions of the criminal code reflect
what some have called Canadians’ more positive conception of
freedom, whereby freedom is thought of as a social product that may
require state action. This
has often been contrasted by thinkers like the Canadian philosopher
Charles Taylor to the more American notion of freedom as the absence
of constraint, a negative conception of freedom that does not require
state regulation and which, necessarily, would be interfered with by
When it comes to so-called hate speech and the toleration of what most
would consider to be offensive and socially unacceptable views, it is
clear that Canada remains, as Seymour Martin Lipset has long argued,
a society less solicitous toward individual freedom and more oriented
toward the protection and promotion of group rights and identities,
and social order. (Some
will, of course, object to this characterization, pointing to the
restrictions on individual rights and freedoms that the United States
Patriot Act imposes in the name of national security considerations.
I would respond that national security and terrorism concerns
of the sort that have emerged since September 11, 2001, tilt the
freedom/social stability balance in a way that does not fairly reflect
the importance attached to the core beliefs and values that appear to
be diminished in the face of such challenges.)
The recent cases of David Ahenakew, a Saskatchewan Native leader charged
under s. 319(b) of the Criminal Code for public utterance of
anti-Semitic remarks, and Ernst Zundel, a white supremacist who in May
2003 became the subject of a deportation process launched under
Canada’s Immigration and Refugee Protection Act, illustrate this
expressed sympathy for Hitler and the extermination of millions of
European Jews and his public statements professing his belief that a
Jewish conspiracy controls the world’s banks and media, could in no
way be reasonably construed as having potential consequences beyond
their affront to mainstream Canadian values and the more personal
offence experienced by Jews who read or hear such statements.
The decision to prosecute Ahenakew under s. 319(b) of the
criminal code sends a very visible message that the expression of
certain hateful views will not be tolerated in Canada.
The 2002 conviction of Matthew Charles Duncan, a New Brunswick
man who set a cross on fire on the lawn of a black family, and the
conviction of Mark Harding, a preacher who in 1997 claimed that
Muslims were “raging wolves” whose goal was to devour Toronto’s
inhabitants, are also instances where the content of the speech,
rather than any serious fear of actual consequences flowing from these
two instances of hate speech, was punished.
In the case of the Zundel deportation proceeding, the public summaries
submitted by the Solicitor-General and the Canadian Security
Intelligence Service to the Federal Court of Canada in May 2003 sought
to justify Zundel’s deportation as a risk to national security.
This claim relied on arguments that his activities represented
attempts to “destroy the multicultural fabric and underpinnings
of Canadian society” and that Zundel has, over the years,
maintained contact with notorious white supremacists whose ideas are
thought to have inspired Timothy McVeigh, the Oklahoma City bomber. “To
comprehend the threat Zundel represents to the security of Canada,”
says the CSIS submission to the court, “his activities must be
assessed in the context of the hostile white supremacist environments
in which he predominates.”
But in neither the CSIS or the Solicitor-General’s submission is any
evidence presented, nor is it claimed, that Zundel has engaged in acts
of violence, directly encouraged such acts, or engaged in criminal
behaviour beyond violations of the spirit and letter of s. 319(b) of
the Criminal Code, which bans certain types of offensive and offensive
speech. (It is possible,
however, that evidence relating to Zundel’s actions as distinct from
his ideas was presented during the closed-door hearings by the court.
This is unlikely given that the Federal government’s public
summary of the case against him conceded that Zundel “has virtually
no history of direct personal engagement in acts of serious
violence,” but that “His status
[my emphasis] is such that adherents are inspired to actuate his
I began this paper by arguing that the Charter and its interpretation by
Canadian courts has not produced an appreciable Americanisation of
Canada’s rights culture. That
it has provided the basis for much more rights talk than existed
previously is undeniable. That
the Charter has significantly changed the venues and strategies that
groups rely on in struggling to get their preferences embodied in
policy is apparent to all. And
that the role of the courts in the political process has been elevated
and judges have assumed a much more activist role in relation to
policy are obvious. But
all of this amounts to Americanisation of the form and process of
politics. This is not
unimportant, but it should not be confused with or mistaken for a
convergence in the political values and beliefs of Canadians and
When it comes to the interpretation of the values embodied in the Charter
and the rights talk that takes place before Canadian courts concerning
these values, there is much less evidence that Canadian politics has
become Americanised during the Charter ear.
This, at least, is the conclusion that must be reached based on
Canadian courts’ treatment of Canada’s hate speech law.
A broader comparison of Canadian and American judicial
interpretation of rights and freedoms would almost certainly show that
the case of hate speech is not isolated and anomalous, but instead is
part of a broader pattern of difference in the rights cultures of the
two countries. Christopher Manfredi’s book, Judicial
Power and the Charter,
represents a good beginning in the direction of just such a
In arriving at my conclusion I am mindful of a rather sound
methodological maxim: “narrow comparison brings out dissimilarities,
and broad comparison brings out similarities.”
The preceding analysis has involved a narrow comparison and
thus the differences that I attribute to the Canadian and American
rights cultures may well be magnified here beyond their true
dimensions. But even if
these differences have been overstated, the fact that embedding
constitutional protection for free speech in Canada’s constitution
has not led to convergence between the Canadian and American
approaches to hate speech should give pause to those who talk loosely
about the Americanisation of Canada’s political culture.
 The Economist, “Cool Canada,” 27 September 2003, 13
 F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ontario: Broadview Press, 2000)
 R. v Keegstra, 3 SCR 697 (1990)
 R. v. Keegstra, 3 SCR 697 (1990)
 Edward Greenspan, “Don’t criminalize words that wound,” National Post, 13 June 2003, A14
 R. v. Keegstra, 3 SCR 697 (1990).
 R. v. Keegstra, 3 SCR 697 (1990).
 R. v. Keegstra, 3 SCR 697 (1990).
 R.A.V. v. St. Paul, 505 U.S. 377 (1992)
 R.A.V. v. St. Paul, 505 U.S. 377 (1992)
 R.A.V. v. St. Paul, 505 U.S. 377 (1992)
 Wisconsin v. Mitchell, 508 U.S. 476 (1993)
 Charles Taylor, Philosophy and the Human Sciences (New York: Cambridge University Press, 1985), particularly the chapters entitled “Atomism”, 187-210 and “What’s wrong with negative liberty?” 211-229
 Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (New York: Routledge, 1990)
 Quoted in “Zundel a treat to Canada’s multiculturalism, CSIS argues,” National Post, 8 May 2003, A4
 Quoted in “Zundel a treat to Canada’s multiculturalism, CSIS argues,” National Post, 8 May 2003, A4
 Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Toronto: Oxford University Press, 2001).
 Marcus Cunliffe, “New World, Old World: The Historical Antithesis,” in Richard Rose, ed., Lessons from America (London: Macmillan, 1974), 45