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Hate Speech and Freedom of Expression in Canada and the United States.

by Stephen L. Newman

Congress shall make no law... abridging the freedom of expression.

First Amendment to the United States Constitution

Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression...

s. 2(b) of the Canadian Charter of Rights and Freedoms

Canada and the United States are not alike in every way, nor have the documents entrenching rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States.

C.J. Dickson in R. v. Keegstra

Both the First Amendment to the United States Constitution and s. 2(b) the of the Canadian Charter of Rights and Freedoms protect the freedom of expression. (1) Yet in both countries governments motivated by concern for the public welfare have attempted to suppress "hate speech," a category of expression commonly defined as consisting of offensive, abusive, and insulting language that targets individuals and groups on the basis of race, ethnicity, religion, or gender. Hate speech is undeniably ugly, so much so that even persons normally leery of censorship might be tempted to agree that nothing of value is lost by its suppress ion. But constitutional guarantees cannot be evaded so easily. Hate speech is still speech, and thus would seem to fall under the protection of the First Amendment and s. 2(b) of the Charter. From the legal standpoint, the question is not whether laws for the suppression of hate speech are desirable as a matter of public policy; the question is, are they constitutional?

In roughly parallel cases decided within two years of one another, the Supreme Court of the United States and the Supreme Court of Canada gave diametrically opposed answers to this question. In the American case, R.A.V. v. St. Paul (1992), the U.S. Supreme Court disallowed a municipal ordinance making it a crime to display symbols, including but not limited to a burning cross or Nazi swastika, that are known to arouse "anger, alarm or resentment" on the basis of race, color, creed, religion, or gender. (2) In the Canadian case, R. v. Keegstra (1990), the Supreme Court of Canada upheld the constitutionality of as. 319(2) of the federal Criminal Code penalizing the willful promotion of hatred against an "identifiable group," namely "any section of the public distinguished by colour, race, religion or ethnic origin." (3) And therein lies a puzzle. Why did the American and Canadian high courts disagree over the constitutional status of hate speech?

Chief Justice Dickson, who wrote the majority opinion in Keegstra, attributed the divergence of Canadian and American law on this point to differing "constitutional visions." Presumably what he had in mind was a philosophical difference affecting how rights are understood by the courts and also the balance that legislatures and courts must strike between individual rights and other societal interests. In point of fact, however, Keegstra was decided by the narrowest of margins--the vote was four to three (4)--and the dissenting opinion by Justice McLachlin relied heavily on American precedent. I read Dickson's majority opinion as a conscious attempt to carve out a distinctive Canadian approach to free speech. Only time will tell whether the Keegstra decision proves to be foundational in this sense. The portents are uncertain. The same court's subsequent decision in R. v. Zundel (1992), which invalidated another anti-hate speech provision of the Criminal Code, was authored by Justice McLachlin and suggests at t he very least that the court's appetite for suppressing hate speech is limited. (5) Nonetheless, Dickson's allusion to differing constitutional visions should be taken seriously, and the majority opinion in Keegstra does rest on a different philosophy than the R.A.V. decision.

Still, before turning to examine the decisions themselves, I should point out that the contradictory results arrived at in these cases are actually somewhat misleading. In R.A.V. the American court did not rule out every conceivable ban on hate speech; it merely defined the parameters of a constitutionally permissible ban narrowly, so narrowly it is arguable that St. Paul's ordinance fell outside what the court was prepared to allow. (6) Unquestionably, the statute at issue in the Canadian case would also exceed the American court's notion of a constitutionally acceptable limit on free expression. Obviously, the Canadian court construed those limits more generously. It is important to note, however, that both courts agreed in principle that there are limits to free speech. The philosophical dispute embodied in the Canadian and American hate speech cases is not over whether the freedom of expression is or ought to be absolute. Both sides concede that it is not, nor should it be. (This despite the absolutist la nguage of the First Amendment.) At issue in Keegstra and R.A.V. is where and how to draw the line between protected speech, however offensive or hateful it may be to some, and constitutionally permissible censorship.

Burning Crosses and Fighting Words

Robert Viktora, the petitioner in R.A.V. v. St Paul, was a juvenile charged under the city's Bias Motivated Crime Ordinance for having participated with other youths in burning a cross, crudely fashioned from pieces of broken furniture, on the lawn of a black family in his neighborhood. (7) The perpetrators of this heinous act, carried our under the cover of darkness, were not members of an organized hate group like the Nazi party or the Ku Klux Klan; they were teenagers, bored, drunk, and high on drugs. But they were certainly well aware of the symbolism of the burning cross and their clear intent in staging the cross-burning was to terrorize their victims.

As Justice Scalia observed in his majority opinion, the city could have charged Viktora with any number of serious crimes, such as arson or criminal damage to property. There is even a state statute that provides for up to five years imprisonment upon conviction for making terrorist threats. (8) That the city elected to charge Viktora under its Bias Motivated Crime Ordinance seems to have been a deliberate response to the social and political significance of his act. It was clear from the city's submission in this case that the ordinance was intended to signal the city council's disapproval of the message of hatred communicated by the burning cross and thereby reassure the city's black residents of the white majority's commitment to equality and racial tolerance. By charging Viktora under this ordinance, then, the city was attempting to counter the potent symbolism of the burning cross with a symbolic politics of its own. The prosecution of Viktora, no less than the cross-burning itself, was intended to send a message.

Governments have every right, and perhaps even a moral responsibility, to communicate a message of racial tolerance. The problem in this instance is that St. Paul chose to express its opposition to racism by gagging the racists. Its Bias Motivated Crime Ordinance made punishable the display of a Nazi swastika, burning cross, or like symbol of hatred on account of their communicative value. By going after the symbolic emblems of a hateful message, the city was attempting to suppress the message itself. At trial, the charges were dismissed on First Amendment grounds.

That result comes as no surprise. In a series of decisions dating from the time of World War One and extending through the era of the Cold War, the Supreme Court had elaborated a body of First Amendment law built chiefly upon government attempts to curb speech it deemed subversive. Confronting laws that imprisoned people for such things as counseling young men to refuse the draft in wartime, publishing leaflets urging an anti--capitalist revolution, or simply for belonging to a political party that held revolutionary goals, the Court gradually evolved a doctrine highly protective of free speech. The germ of that doctrine can be found in Justice Holmes's opinion in Schench v. United States (1919). "The question in every case," Holmes wrote, "is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (9) Subsequent cases established that the "evils" to be prevent ed must be tangible, usually in the form of violence against persons or property. "Clear and present danger," though for a time measured by the vague and permissive standard of the "ill tendency" of expression to bring about harm in the future, (10) eventually came to mean "clear and present danger here and now." As Justice Brandeis wrote in Whitney v. California (1927), "There must be reasonable ground to believe that the danger apprehended is imminent." (11) This body of First Amendment law would appear to establish that for St. Paul's Bias Motivated Crime Ordinance to withstand constitutional scrutiny, it would have to be directed against an immediate threat of violence flowing from the suppressed message.

Of course, hate speech is not perfectly analogous with subversive speech. A burning cross is not a political manifesto. As it happens, there is another strand in First Amendment law that fits the case, one that allowed the Minnesota State Supreme Court to reinstate the charges against Viktora. I refer to the "fighting words doctrine," first articulated by the U.S. Supreme Court in Chaplinsky v. New Hampshire (1942). (12) Fighting words define a narrowly drawn category of speech consisting of abusive personal invective. Contemplating the sort of "in your face" provocation that is often the prelude to a fight, the Chaplinsky Court wrote that such words "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (13) There is an obvious parallel between the fighting words doctrine and the clear and present danger test: both require government to show an imminent threat of harm in order to justify suppressing speech. However, by construing words themselves as a source of injury--a s though fighting words were like bricks hurled at an opponent--the Chaplinsky Court downplayed any expressive value they might have. Unlike subversive speech, then, fighting words are not considered dangerous on account of the ideas they communicate. No one is persuaded of anything by an insult. Fighting words serve only as a provocation. "It has well been observed," the Court wrote, "that such utterances are no essential part of any expression of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interests in order and morality." (14) The Court's reasoning on this point raises some doubt as to whether fighting words are to be considered "speech" within the meaning of the First Amendment. At best, the Court treats the class of fighting words as having an exceedingly low value--so low that it does not merit constitutional protection. More on this presently.

The case law subsequent to Chaplinsky appears to have narrowed the fighting words doctrine so that it applies only to utterances that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." (15) Nonetheless, the doctrine survives; and on appeal the Minnesota State Supreme Court was able to revive St. Paul's Bias Motivated Crime Ordinance by interpreting it as applicable only to constitutionally unprotected "fighting words." This requires, of course, that we understand the burning cross to be a personally abusive remark addressed to the family on whose lawn it was set ablaze. Moreover, it requires that we believe the city of St. Paul's motivation in passing the ordinance was to prevent a violent reaction on the part of the victims. None of this is terribly credible. By the city's own admission, the ordinance targeted the communication of a particularly hateful message by an especially hateful means. The harm anticipated by the ordinance surely lay in the psychological effects of the burning cross on members of the black community who, it must be supposed, were all too familiar with its message of racial hatred.

The notion that a message of hatred might itself be a cause of injury brings us back to the Court's refusal to accord fighting words significant First Amendment value. The Court's argument in Chaplinsky was premised on the belief that fighting words constitute "no essential part of any expression of ideas." In short, they form a class of words that are virtually meaningless but nonetheless have the power to provoke violence in much the same way that knocking a chip off someone's shoulder is understood to be an invitation to a brawl. The paradox in the Court's argument is that to be understood as an insult or a provocation, words must have meaning. Even fighting words, then, must communicate ideas. Certainly, this is true of hate speech. Hate speech is objectionable precisely because it succeeds at expressing a particularly odious set of ideas that many people (one hopes most people) find repulsive. But if hate speech, and indeed, the entire class of "fighting words" succeed at expressing ideas, then we cannot read them out of the First Amendment for lack of intelligibility. If hate speech is "low value speech," it must be because government disapproves of the message it communicates. Under the clear and present danger test, however, mere disapproval is insufficient reason to deny the expression of this message constitutional protection.

To understand why the Court believes that government ought not be able to suppress even manifestly bad ideas, we must return to Brandeis's opinion in Whitney. Brandeis accepted the propriety of suppressing speech only when circumstances preclude reflection and debate. "[N] danger flowing from speech can be deemed clear and present," he wrote, "unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion." (16) What difference does the opportunity for full discussion make? To Brandeis it made all the difference in the world, because he thought that free speech was premised on the Founders' faith in our reasonableness. Given the opportunity to hear all sides and to reflect on the messages competing for our acceptance, we are to be presumed normally competent to distinguish truth from falsehood, good from evil. (17) This was Brandeis's liberal faith. One could go further and argue that it is our individual responsibility as moral agents to make th ese sorts of judgments, however difficult the task; and that government has no business acting as a censor in order to protect us from the evil influence of bad ideas. In the words of contemporary political theorist Ronald Dworkin, "Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions." (18)

This is not to say that individuals are always reasonable, nor is it to claim naively that truth always prevails over falsehood or that good always triumphs over evil. The Court's speech-protective First Amendment doctrine does not require that we be perfectly wise and perfectly just moral agents, only that we be capable of autonomous rational deliberation. The implication of Brandeis's argument is something like the following. Freedom of expression is valuable because it allows self-determining individuals to say what they think, thus allowing them scope for their individuality as well providing them an opportunity to demonstrate their capacity for rational moral agency. And because individuals are capable of thinking for themselves, the freedom of expression is largely self-policing. Speakers gain influence only by winning the uncoerced assent of their auditors. Government is justified in stepping in to silence the purveyors of harmful ideas only when the danger it apprehends is imminent and there is no opp ortunity to avert the danger through further discussion. Then and only then is it morally and constitutionally legitimate for the state to act as a censor.

It might be objected that full discussion is an adequate remedy when it comes to debunking crackpot calls for revolution, but not when it comes to hate speech. Hate speech is different, one might argue, because it trades on prejudice. Eschewing reasoned argument, it appeals instead to people's emotions. Moreover, it seeks to stigmatize and intimidate its targets, not persuade them. These complaints have some truth to them, but they do not get us very far. While it seems likely that persons who engage in hate speech do not seek to win converts to their point of view from among the individuals and groups they target for their venomous attacks, they no doubt hope to convince others in society to share their hatred. In that sense, persons who wish to promote hatred are no different from persons who wish to promote a revolutionary political program or any other idea. That the language of hate may frequently appeal to the gut rather than the head fails to distinguish it from other emotionally charged appeals. Assum ing that individuals are normally competent to assess the moral implications of hate speech, respect for their autonomy as moral agents still requires that they be left alone by the state to judge it for themselves.

And what of the victims of hate speech? Might censorship be justified to protect them from the psychic trauma inflicted by having crosses burned in front of their houses in the middle of the night? The answer must be no, though I imagine that might seem an unfeeling response. (19) Yet if I understand the implications of Brandeis's argument correctly, under a liberal constitutional regime of free expression the targets of hate speech must be assumed to possess the same moral and intellectual capacities as all other persons. They, too, must be deemed capable of recognizing hate speech for what it is and, in rejecting its noxious message, of summoning the strength of will to rise above the pain inflicted by their tormentors. Hate speech may indeed be unusually hurtful; but the fact is that words of hate are not the only words that wound. (20) If speech is to be free, then we must be prepared to suffer the slings and arrows of unconstrained expression. It is not that "sticks and stones may break our bones, but wo rds will never hurt us." Rather, it is that the hurt we suffer on account of words is the price we pay as morally autonomous individuals for the freedom of expression.

The fiction employed by the Court in its fighting words doctrine is that the suppression of fighting words is not censorship, because the class of speech in question is of such low value that it forms "no essential part of the expression of ideas." The decision of the Court in R.A.V., however, would tear the veil off this transparent fiction. But not completely. Accepting the State Supreme Court's narrow reading of St. Paul's ordinance, the Court had no difficulty agreeing that Viktora's burning cross was an instance of fighting words and legitimately subject to proscription under established doctrine. Led by Justice White, four members of the Court argued that the ordinance should nonetheless be struck down for being "overbroad." The ordinance prohibited the display of any symbol that one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." This, they argued, cast the net far too widely and risked the suppression of speech that gav e offence or caused hurt feelings without inflicting the level of injury associated with fighting words. For the most part, however, they were content to leave fighting words outside of the First Amendment, an orphaned category of speech that does not fully qualify as intelligible expression and receives no constitutional protection. (21)

Justice Scalia's majority opinion made a very different argument. Contrary to the traditional doctrine, Scalia insisted that fighting words are not "entirely invisible to the Constitution." Nor was it true, he argued, that they have "at most a 'de minimis' expressive content, or that their content is in all respects 'worthless and undeserving of constitutional protection."' On the contrary, he acknowledged "sometimes they are quite expressive indeed." (22) Yet, he agreed with the notion that the class of fighting words is "proscribable" by virtue of its content. I find this concession to the Court's traditional fighting words doctrine confusing in light of Scalia's subsequent assertion that fighting words are, "despite their verbal character, essentially a 'nonspeech' element of communication" and that the class of fighting words constitutes a "socially unnecessary mode" of expression. (23) This would suggest that what he finds objectionable about fighting words is not their specific ideational content, but t he form it takes. As Scalia himself explains, "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." (24) I take this remark to mean that the message communicated through unduly provocative language could as easily be communicated in words that pose no risk of violence. On this basis, Scalia draws an analogy between the suppression of fighting words and the time, manner, and place restrictions that are routinely imposed on protected speech. (25)

The Court has held that time, manner, and place restrictions, such as those which prevent the use of sound trucks in residential neighborhoods, are allowable so long as they do not discriminate on the basis of the content of the message the speaker wishes to communicate. For example, a universal ban on sound trucks in residential neighborhoods is acceptable; a ban only on sound trucks espousing the platform of the Republican party is not. The rationale for time, manner, and place restrictions balances the right of free expression against other societal interests, such as public convenience and privacy. Government does not abridge the right to speak freely under the First Amendment by preventing the screaming of a message out loud beneath another's bedroom window in the middle of the night. So long as a person has other opportunities to express herself, and so long as all speakers are subject to the same restriction curtailing midnight tirades, the government has demonstrated appropriate neutrality. Neutrality matters because under the Fourteenth Amendment government owes all persons equal protection of the laws. This means that the coercive power of the state cannot be used to advantage or disadvantage particular speakers on account of the ideas they express.

Scalia found St. Paul's ordinance to be tainted by "content discrimination," because only the display of hateful symbols targeting a person s race, color, creed, religion, or gender was proscribed. (26) In short, the ban on fighting words imposed by the city of St. Paul was impermissibly content specific. Distinguishing messages by their subject matter, it singled out only certain instances of "proscribable" speech for punishment.

Indeed, in Scalia's view the ordinance amounted in practice to actual "viewpoint" discrimination; the city had in effect taken sides in a partisan dispute over racial, religious, and gender equality by granting the pro-equality side permission to use abusive personal invective while penalizing their opponents for use of the same intemperate language. The city, he wrote, had no authority "to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." (27) To be brought into conformity with the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, the ordinance would have to impose a content-neutral ban on the use of fighting words. (28)

In my view, Scalia's revised fighting words doctrine does not improve much on the original. While it acknowledges the expressive value of so-called "fighting words," it continues to treat this class of speech as having such low value that its suppression need not raise any First Amendment concerns. But if fighting words do have expressive value, then surely any ban on such words must be assessed under the clear and present danger test. If it is correct to identify the animating spirit of the First Amendment with Brandeis's liberal faith, we are justified in demanding protection even for "low value" speech unless it can be demonstrated that only by abridging the freedom of expression will government avert some imminent danger.

Scalia's revised doctrine attempts to evade this requirement by separating the ideational content of fighting words and the manner in which they are expressed. It is not the expressive component of the words that makes them "proscribable," he argues, but rather their function as a "nonspeech element of communication," which marks them as a "socially unnecessary mode of expression." Ultimately, this evasive strategy must be deemed a failure. Consider that we recognize hate speech not on account of how the words are spoken, at what volume, or with what intensity, but through the content of the message the words convey. It is the hateful message itself that causes or threatens injury; stripped of its racist content, Viktora's burning cross loses its power to intimidate or provoke. Thus, the regulation of hate speech (and other fighting words) is not analogous to the imposition of time, manner, and place restrictions on protected expression, as Scalia would have it. Assuming that circumstances justify the suppres sion of hate speech, the ban cannot be content-neutral. I fail to see any violation of the equal protection requirement here if, as Justice Stevens argued, St. Paul had legitimately determined that "fighting-word injuries 'based on race, color, creed, religion, or gender' are qualitatively different and more severe than fighting-word injuries based on other characteristics." (29) Indeed, Scalia himself was forced to admit under pressure from Stevens's argument that content-based regulation of a subclass of fighting words poses "no significant danger of idea or viewpoint discrimination" (and is thus allowable) when "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable." (30) This condition is surely met in regard to the suppression of hate speech as a subclass of fighting words.

Consequently, it seems to me that Scalia was clearly wrong to accuse St. Paul of viewpoint discrimination. Once again I agree with Justice Stevens, who described the city's ordinance as "evenhanded." In the debate over equality, it did not allow one side to use fighting words while denying the same privilege to their opponents. Either side was permitted to hurl fighting words at the other on the basis of their conflicting ideas; but neither side could resort to fighting words on the basis of the target's race, color, creed, religion, or gender. As Stevens explained, extending Scalia's pugilistic metaphor, "the St. Paul ordinance simply [banned] punches 'below the belt' by either party." (31) I feel compelled to add, however, that I do not believe the First Amendment authorizes government to impose an arbitrary "civility requirement" on public discourse. Free speech will not always take the form of polite conversation.

Curiously, Scalia's revised fighting words doctrine seems better suited to policing the tone of public discourse than to remedying speech-related injuries. That is because it makes "proscribable" a mode of speech rather than any particular ideas, as if it were the medium rather than the message that gives offence. The decision in R.A.V. compels St. Paul to ban all fighting words in order to reach the injuries specifically associated with hate speech. Remember that the city is presumed to have determined that racist speech was especially injurious, posing an imminent danger of violence not associated with other fighting words. The R.A.V. decision in effect instructs the city that the way to deal with the problem of racist speech is to get everyone, not just racists, to clean up their language. This advice not only ignores the essential nexus linking the expression of particular ideas to some harm that government has a duty to prevent, it also neglects the importance of context in determining the severity and i mminence of the anticipated harm. If it is the content of the message that gives offence, it is the context in which the message is delivered that creates the danger. Racist speech constitutes fighting words only where a climate of racism gives it the power to inflict emotional damage. In its obsession with content and viewpoint neutrality, the decision in R.A.V. appears blind to the lived experience of race in America.

Hate Speech and the "Reasonable Limits" to Freedom of Expression

The guarantee of free expression in the Canadian Charter of Rights is not on its face absolute, like the First Amendment guarantee. That is because the Charter contains a "reasonable limits" clause. Section 1 of the Charter states that the rights and freedoms it provides are subject "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Because of the reasonable limits clause, a law plainly in violation of the s. 2(b) guarantee of free expression can be upheld by the courts without recourse to tenuous distinctions between high and low value speech, fighting words, or the like. By offering a s. 1 defense of impugned legislation, government invites the courts to balance free expression against other important societal interests.

In brief, the facts of R. v. Keegstra are these. James Keegstra, a high school teacher in Alberta, was accused of violating s. 319(2) of the Canadian Criminal Code for repeatedly making anti-Semitic remarks to his students as part of their normal course of instruction. As detailed by the majority decision, Keegstra described Jews to his pupils as "treacherous," "subversive," "sadistic," money-loving," "power hungry," and "child killers," and taught them that the Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, wars, and revolutions. He also denied the truth of the Holocaust, claiming that it was a Jewish hoax devised to gain the world's sympathy. (32)

Chief Justice Dickson, writing for the majority, found that Keegstra's anti-Semitic statements were clearly expression protected by s. 2(b) of the Charter. The Court's earlier freedom of expression cases had established that only the communication of ideas by means of violence is excluded from the Charter guarantee. In determining Keegstra's statements to be protected speech, the Court expressly rejected a version of the American fighting words doctrine urged upon it by proponents of the law, who argued that hate speech was analogous to expressive conduct threatening violence. Reasoning that because threats of violence, which can only be classified as such by reference to their content, are distinguishable from acts of violence, Dickson concluded that mere threats cannot automatically be placed outside the protection of s. 2(b). The question before the Court was whether or not s. 319(2) of the Criminal Code could be upheld as a reasonable limit on expression.

The test for whether a limit on a right or freedom guaranteed by the Charter can be demonstrably justified in a free and democratic society derives from R. v. Oakes (1986). (33) Under the Oakes test it must first be established that the impugned state action has "an objective of pressing and substantial concern." Next, it need be shown that there is proportionality between this objective and the impugned measure. The balancing of individual and group interests that is the hallmark of s. 1 analysis occurs in the assessment of proportionality, which proceeds in three stages. First, it must be demonstrated that the impugned measure is rationally related to the state's legitimate objective. Second, the impugned measure must be demonstrated to impair the right or freedom in question "as little as possible." Third, there must be a proportionality between the effects of the impugned measure and the compelling objective that justifies infringing a protected right or freedom. In applying this test, the Court announced itself in Oakes to be guided by "the values and principles essential to a free and democratic society," including but not limited to "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society." (34)

What is the "objective of pressing and substantial concern" behind s. 319(2) of the Criminal Code? Stated in the most general terms, its objective is to prevent the harms associated with hate speech. Chief among these harms, in Dickson's view, is the "emotional damage" it inflicts on members of the target groups. Dickson saw hate "propaganda," as he called it, as having "a severely negative impact on the individual's sense of self-worth and acceptance." Moreover, this serious threat to the "self-dignity of the target group" was matched "by the possibility that prejudiced messages will gain some credence [within the general public], with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society." (35)

In light of the importance the Oakes test assigns to the government's objective, I find it curious that Dickson is so tentative about the social consequences of hate speech. He does not say that it will bring about discrimination and violence, only that it might do so. (For example, he writes that it is "not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society." (36) This seems a weak foundation on which to ground an objective of "pressing and substantial concern," especially since the statistical data cited by the Court provided little support for the notion that hate speech presented a significant problem. I am also puzzled by his confidence in the efficacy of hate "propaganda." He appears to believe that whatever internal resources the targets of hate speech possess, they are no defense against the psychologically destructive impact of patently false and demeaning statements of the sort Keegstra made to his students. Hate speech is simply assumed to pose an immediate and potent threat to both the self-esteem of targeted individuals and the spirit of tolerance within the wider society. (37)

These assumptions are at least partially accounted for by Dickson's use of the term "propaganda," which deliberately calls to mind the effective use of the Big Lie by totalitarian regimes in the twentieth century. His views regarding the efficacy of hate propaganda were heavily indebted to the report of the Cohen Committee (Special Committee on Hate Propaganda in Canada, 1966). He quoted the Committee report to the effect that "individuals can be persuaded to believe 'almost anything' if information or ideas are communicated using the right technique and in the proper circumstances." In another passage quoted approvingly by Dickson, the report stated that we are no longer justified in the belief of eighteenth-and nineteenth-century philosophers that man is a rational creature, whose mind, if "trained and liberated from superstition by education,...would always distinguish truth from falsehood, good from evil." Dickson then stated his own view that although,

over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know...We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field. (38)

I find in this passage a philosophical counterpoint to the theoretical underpinnings of the U.S. Supreme Court's speech-protective First Amendment jurisprudence. In Dickson's terms, the liberal faith I earlier identified with the opinions of Holmes and Brandeis is no longer relevant. We can no longer safely assume that individuals are self-determining moral agents normally competent to assess the truth-value and moral implications of public discourse. We now know better than to trust in people's reasonableness or their capacity to resist sophisticated new techniques of persuasion. Censorship may be required to protect the individual and society from the ill tendencies of bad ideas slickly packaged. Like the optimistic liberal faith it displaces, Dickson's subdued confidence in human reason and moral agency is a founding premise rather than an empirical fact. What he offers us is a pessimistic conception of human nature rather than a descriptive account of how human beings actually respond to hate speech.

Dickson's focus on the relative deficiencies of individual reason and moral agency shift attention away from the moral capacities and responsibilities of individuals and onto the moral responsibilities of the state. This requires that there be some particular conception of the good to guide the state in determining whose speech and which messages to suppress. I believe that Dickson's understanding of the good is essentially "communitarian." Communitarian political theory is distinguished by its emphasis on the social context within which persons acquire their individual identities and values. From the communitarian point of view, the autonomous" individual is in reality a social construct, and consequently it makes no sense to talk about individual rights apart from the needs and well-being of the community as a whole. This is because the personal autonomy protected by rights cannot be had outside of the social context that makes both choosers and choice itself possible. Thus, speaking freely in a manner that causes injury to a pluralistic or multicultural political community like Canada by disturbing the harmony that exists among its cultural subgroups is not to be tolerated. (39)

Dickson had no difficulty discerning a rational relationship between the suppression of hate speech and "the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations in a community dedicated to equality and multiculturalism." (40) Moreover, since he considered it self-evident that the autonomy and dignity of group members were contingent on their "ability to articulate and nurture an identity derived from [group] membership," (41) it also made sense to suppress hateful speech that stigmatized what the statute referred to as "identifiable groups." It is interesting to note that the statute itself defines "identifiable group" as any section of the public distinguished by color, race, religion, or ethnic origin. Since all persons may be grouped on the basis of these criteria, the law would seem on its face to ban the willful promotion of hatred against any person on the basis of his or her ethnic, racial, or religious identity. Dickson, however, chose to rea d the statute as prohibiting "the intentional fostering of hatred against particular members of our society, as opposed to any individual." (42) The clear implication is that Dickson makes a distinction between the public at large, which is not identified and does not self-identify in terms of color, race, religion, or ethnic origin, and the members of minority groups, who are and who do. (43)

Dickson's sensitivity to the importance of group identity among minorities is antithetical to the "viewpoint neutrality" demanded by Justice Scalia in R.A.V.; however, it parallels the approach to hate speech that has been urged upon the American courts by critics like Richard Delgado, Man Matsuda, Charles Lawrence III, and others, several of whom Dickson cites. (44) In their view, the structural disadvantages besetting racial and other minorities together with the systemic discrimination the members of these groups continue to face on a daily basis leave them ill-equipped to shrug off the psychological blows inflicted by hate speech. Moreover, the persistence of bias within the larger society, however subtle, marks hate speech as the tip of the iceberg. For these authors, suppressing hate speech is just the first step in eradicating discrimination entirely, which they think ought to be the goal of any society committed to egalitarianism. Dickson does not overtly make the same structural argument in favor of suppressing hate speech; however, a similar line of reasoning seems implicit in his repeated insistence that members of "identifiable groups" are especially vulnerable to the deleterious effects of hate speech. Also, it is clear that he regards the criminal ban on hate speech as a symbol of society's commitment to egalitarianism and multiculturalism. In his eyes, the prohibition serves to remind the whole community "of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person." (45)

My chief difficulty with the structural argument is that it broadens the notion of injurious speech to include the creation or perpetuation of negative stereotypes and prejudicial ideas. I fail to see how even the most rigorous censorship can hope to eliminate the subjective sources of discrimination. Government might be able to control what people say out loud, but it cannot successfully legislate what they will think. Moreover, I believe that a certain amount of prejudice and perhaps even genuine dislike, if not amounting to hatred, is unavoidable in a multicultural society, because the likelihood is that diverse cultural groups will be committed to rival and possibly incommensurate conceptions of the good. (46) The list of fundamental conflicts is long. We need only think of people who worship different gods, or who worship the same god differently; people who disagree over the standards of sexual morality; people who subscribe to different sets of "family values"; the abortion debate. And the list goes on and on. Tolerance does not require that all social groups like and respect one another, much less that they speak well of each other. It merely requires that they respect one another's right to exist and the right of each group to pursue its own conception of the good. While some persons may in fact feel aggrieved knowing that others disdain their fundamental values or hold them in contempt on account of their group identity, this does not seem to me to be the sort of injury government can or should seek to avert. (47)

Another objection to the structural argument is that it too readily portrays members of groups targeted by hate speech as hapless victims. It is wrong to assume that persons of color and other minorities will necessarily lack a strong sense of their own worth sufficient to repel attacks on their self-esteem by racists and other hate mongers. Even if we grant that personal identity and self-esteem cannot be separated from group membership, it is by no means obvious why membership would not serve as a source of strength rather than a point of vulnerability. We might well expect the members to make common cause against their tormentor(s), drawing upon their shared culture to defend themselves against the ill effects of hate speech. (48) In short, I do not think we can safely presume--as the structural argument does--that in every conceivable instance hate speech constitutes the sort of imminent danger that justifies impairing the right of free expression.

In a rhetorical attempt to establish just this level of danger, Dickson defined hatred as an "extreme" emotion "clearly associated with vilification and detestation." More severe than mere "dislike," hatred for members of an "identifiable group" "implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation." For Dickson, then, hatred is always associated with attitudes conducive to violence. His definition establishes the spread of hate as an evil akin to sedition; it takes but a small leap of the imagination to conclude that hate speech presages civil war. Hatred, he wrote, is "predicated on destruction,...destruction of both the target group and of the values of our society." (49) Dickson was responding to the rhetoric of hate with an equally emphatic rhetoric of alarm; and while this made for a certain symmetry, both are exaggerated in the text of his majority opinion. The fact remains that he was unable to cite any empirical evidence indicating that hate speech was then or ever had been a real threat to peace and order in Canada. (50)

No matter. At bottom Dickson's case against hate speech was conceptual, not empirical. Dickson believed that free expression serves three independent values: truth, individual self-fulfillment, and democracy. He argued that by definition hate speech was of no use in the search for truth because its claims were manifestly false and, moreover, its use of propaganda techniques actually worked against rational inquiry and risked subverting the truth through emotional appeals to people's prejudices. While it might be said that hate speech served to fulfill the hate monger by allowing him or her self-expression, Dickson asserted that hateful words denied members of the target groups the opportunity for self-fulfillment by undermining their self-esteem. Finally, he concluded that hate speech injured democracy by silencing members of the target group, who as objects of scorn were less likely to join in public debate and less likely to receive a hearing from the larger public if they did. (51) Thus, impairing the righ t to engage in hate speech was seen as prerequisite to fostering the values underlying free expression among the members of "identifiable groups" and the public at large. (52) By an act of verbal legerdemain, Dickson managed to turn an argument for censorship into a defense of free speech. (53)

Liberty, Community and Censorship

The liberal and communitarian underpinnings of the American and Canadian decisions shade the freedom of expression differently, dramatically affecting how we are meant to conceive of its relationship to the practice of liberal democracy. From the American (liberal) perspective, freedom of expression is intrinsically and fundamentally valuable because it facilitates the individual's personal autonomy and moral agency. From the Canadian (communitarian) perspective, freedom of expression has more of an instrumental value; speech is the means by which individuals enter into a community of shared discourse, through which they come to recognize themselves as participants in a common way of life. Where the American view calls upon the state to exercise self-restraint so that all individuals may enjoy as broad a freedom as possible consistent with the need for order, the Canadian view enjoins the state to intervene when the freedom of expression is abused in ways that are deemed to threaten social harmony.

Neither approach yields entirely satisfactory results. The majority in R.A.V. refused to acknowledge the unique historical circumstances of racial minorities in the United States which might very well justify affording them special protection from the harms of hate speech, at least in the narrow sense provided for by the Court's traditional fighting words doctrine. (54) While we all may feel the sting of hateful words and be discomforted by abusive epithets, it is absurd to pretend that the effects of hate speech will be uniform across the population without regard to the circumstances of particular individuals whose personal identities have been shaped at least in part by their experience of discrimination on account of their race, color, creed, ethnicity, religion, or gender. (55) Surely, if a given society were seriously fractured along racial or ethnic lines, such as is the case in the former Yugoslavia, prudence would recommend restrictions on abusive language intended to reduce the likelihood of interra cial or interethnic violence. It is not much of a stretch to argue that the United States, plagued by a long history of interracial violence and striving to deal with its social and economic consequences, might choose to restrict racially inflammatory and abusive language in order to promote the healing of a divided society. This appears to be the underlying rationale in the concurring opinions offered by Justices White and Stevens, both of whom dwell on the historical grievances of African-Americans. In contrast, Justice Scalia and the majority in R.A.V., striving for raceneutral impartiality in their decision, failed to take seriously Sr. Paul's rationale for suppressing hate speech. (56)

Meanwhile, the Keegstra majority can be faulted for making no attempt to establish the real effects of hate propaganda, relying instead on repeated but ungrounded assertions concerning the harms done to victims and society at large. On its own terms, Dickson's communitarian rationale for proscribing hate speech has validity only if hate speech in fact constitutes a credible threat to social harmony. That the society in question is multicultural, consisting of diverse groups holding rival and possibly incommensurate conceptions of the good, does not by itself create an irrefutable presumption of harm attached to offensive, abusive, or hateful speech. It is always possible that group solidarities will insulate their members against the harmful effects of hurtful words. It is also possible that trust in the overarching political structures will mitigate the effects of hate speech by leading members of the target groups to discount the speaker's influence or significance. A history of intergroup animosities or a legacy of discrimination against one or more of the groups will strengthen the case for restrictions on hate speech, but even here it is incumbent upon the state to show that the restrictions are necessary--that is, that the injury done to society justifies the impairment of the right. Otherwise the special weight constitutional and moral theory attach to the concept of right disappears and rights claims become indistinguishable from ordinary assertions of interest. (57) Moreover, absent a standard of proof that is clear and convincing, the state is helpless to distinguish among claims of injury brought by mutually antagonistic groups. The temptation to gain an advantage over one's opponents by enlisting the power of the state on your behalf might all too easily prove overwhelming, especially when political elites are encouraged to demonstrate support for their cultural constituencies by enacting "protective" legislation. That this is done under color of preserving democracy and enhancing diversity cannot dis guise the potential use of censorship as a means of closing down democratic dialogue and enhancing the status of some group(s) at the expense of others.

The American and Canadian hate speech cases both involve two very different sorts of considerations, moral and prudential. Moral considerations link freedom of expression to human dignity and create a presumption against state regulation. Prudential considerations force us to recognize that the need to preserve social order may require limitations on freedom of expression under certain circumstances. Given that the majority opinions in R.A.V. and Keegstra were built on substantially different constitutional "visions," it is hardly surprising that they arrived at differing results. Still, I would argue that the task facing the two courts was the same. Both had an obligation to ensure that the evil apprehended by the state was genuine, that its consequences were substantial, and that impairing the right of free expression in these instances would in fact abate the evil. If the majority in R.A.V. was too quick to discount the gravity of the evil represented by hate speech, the majority in Keegstra was surely lax in failing to assess the magnitude of the evil.

Ironically, it could be said that neither court took hate speech seriously enough as speech. Speech has meaning only when it is processed by the auditor's rational consciousness. It may persuade or fail to persuade, offend or amuse; but its effects are the result of our thinking about the message, evaluating its content, assessing its argument, weighing its evidence, and so on. Hate speech, however, is held by both courts to bypass this rational evaluative process. Conceptualized under the rubric of "fighting words," hate speech is treated by the American Court as though it were a provocative action rather than speech. We are meant to think of the words themselves as a source of injury. This is what makes fighting words an "intolerable" and "socially unnecessary mode of speech"; and, more importantly, it is what makes them "proscribable." In a similar vein, the majority opinion in Keegstra ascribed to hate speech an uncanny power to strip its victims of their self-esteem and instill hatred in the majority as if by magic. Although without imagery likening the impact of offensive words to that of a physical blow, the import is largely the same. Hate speech is again distinguished from rational discourse and made subject to regulation because it slips in beneath the radar of consciousness and inflicts psychological damage in a way ordinary speech could never do.

The problem with both of these accounts is that they lack surface plausibility. Much if not all of the expression commonly labeled hate speech does not differ in kind from other opinionated speech. That it is highly offensive or obnoxious to its auditors seems unlikely to allow it to slip in beneath the radar of their consciousness. On the contrary, we recognize hate speech for what it is and become angry or take offence precisely because we consciously process its message. Why, then, is hate speech not treated the same as all other opinionated speech and afforded the same degree of constitutional protection? Only the belief that hate speech is different, a belief apparently shared by the American and Canadian high courts, can account for the differential treatment it receives. But this belief is without foundation. (58)

To say that hate speech is like all other opinionated speech is not to deny the power of words but only to insist that the speaker must enlist the cooperation of his auditors if this power is to have its effect. The case for censorship laid out by the decisions in R.A.V. (implicitly) and Keegstra (explicitly) rests on the dubious proposition that hate speech is in some strange way irresistible and will inevitably corrupt its auditors, provoking violence, self-loathing, and irrational hatred of members of the target group(s). Both Courts would do better to recognize hate speech as free speech, however offensive or obnoxious its message may be. Our respect for the speaker's right to express his views does not signal approval of his hateful message. On the contrary, we demonstrate our commitment to tolerance by according even intolerant persons the very rights that they would deny to others. (59) And we register our opposition to hate most strongly not when we censor hate mongers, but when we exercise our right to freedom of expression and speak out forcefully against their hateful message.

NOTES

I want to thank Ray Bazowski, Katrin Froese, John Harles, Pat Neal, and Terry Heinrichs for their comments and suggestions. I am especially indebted to Terry, who shared with me his recent manuscript on the Keegstra decision, in which he draws an interesting parallel with the reasoning behind the U.S. Supreme Court's decision in Gitlow v. New York. His paper inspired me to look again at the seminal influence of Holmes and Brandeis on the American philosophy of free expression. This article was originally written for presentation at the Biennial Conference of the Association for Canadian Studies in the United States, 14-18 November 2001, in San Antonio, Texas.

(1.) Since the Charter has only been around for twenty years--it was adopted as part of the Constitution Act, 1982--Canadian free speech jurisprudence is of a more recent vintage than its American counterpart. For a relatively recent overview of the Court's s. 2(b) cases, see Clare Beckron, "Freedom of Expression in Canada--13 Years of Charter Interpretation (Subsection 2(b))," in G-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. (Toronto: Carswell, 1996), ch. 5. Also, for a thoughtful critique of the Court's approach to free speech, see Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), 126-147.

(2.) 505 U.S. 377.

(3.) 3 S.C.R. 697.

(4.) There were two vacancies on the Court at this time, temporarily reducing the complement of justices from nine to seven.

(5.) 2 S.C.R. 731. In Zundel, which concerned the dissemination of anti-Semitic literature, the Court struck down s. 181 of the Criminal Code prohibiting the spreading of "false news" that might "cause injury or mischief to a public interest." The vote was again four to three with Justice L'Heureux-Dube joining the three Keegstra dissenters. The majority found s. 181 to be lacking any constitutionally permissible purpose and also held that the phrase "injury or mischief to a public interest" was unacceptably vague. However, in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, the Court upheld provisions of the Canadian Human Rights Act curtailing hate speech, and in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, it upheld a decision of a provincial human rights tribunal ordering a school board to remove from the classroom a teacher who had expressed racist views. Just this year, a teenager in New Brunswick was charged under s. 319(2) for having burned a cross on the lawn of a black family. See "N.B. Teen Pleads Guilty in Cross-burning," [Toronto] Globe and Mail, 25 August 2001, A 9.

(6.) As I discuss below, four of the nine justices found the ordinance overbroad; however, the majority chose to invalidate the law not because it penalized constitutionally protected speech, but because its ban on a specified subclass of unprotected speech amounted to impermissible content discrimination.

(7.) For a detailed account of the incident, see Randall P. Bezanson, Speech Stories: How Free Can Speech Be? (New York: New York University Press, 1998), 93-113.

(8.) R.A.V. v. St. Paul, Footnote 1 to the majority opinion, 381.

(9.) 249 U.S. 47, 52.

(10.) See Gitlow v. New York, 268 U.S. 652 (1925).

(11.) 274 U.S. 357, 377.

(12.) 315 U.S. 568.

(13.) Ibid., 572.

(14.) Ibid., 572.

(15.) Gooding v. Wilson, 405 U.S. 518 (1972), 524.

(16.) Whitney v. California, 378.

(17.) Cf. Terry Heinrichs, "Gitlow Redux: 'Bad Tendencies' in the Great White North," unpublished ins., 12-15.

(18.) "The Coming Battle Over Free Speech," New York Review of Books, 11 June 1992, quoted in James Weinstein, Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (Boulder, Col.: Westview, 1999), 15.

(19.) But remember, the cross-burning might still have been punishable as a criminal act under Minnesota law (for example, as trespass, arson, or making terrorist threats). That an overtly criminal act may have communicative value in no way shields the perpetrator from the legal consequences of his action. The First Amendment issue arises in R.A.V. only because the city chose to penalize the expression of hatred communicated by the burning cross.

(20.) For the view that racist hate speech is especially injurious, see Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment (Boulder, Col.: Westview Press, 1993).

(21.) Separate concurrences were filed by Justices White, Blackmun, and Stevens. White's stayed closest to the traditional fighting words doctrine with its emphasis on a narrow, categorical approach to free expression; however, all three along with Justice O'Connor agreed that the St. Paul ordinance was overbroad and hence facially invalid. See R.A.V. v. St. Paul, 411-414. Cf. Steven Shiffrin's argument in "Racist Speech, Outsider Jurisprudence, and the Meaning of America," Cornell Law Review 80(1994), 43-103. Shiffrin maintains that the Court could have chosen to read the ordinance more narrowly, keeping it within the boundaries of the fighting words doctrine. While I do nor find Shiffrin's argument compelling, it does succeed at calling attention to the often fine line between unprotected "fighting words" and protected speech that is "merely" offensive.

(22.) R.A.V. v. St. Paul, 383, 385.

(23.) Ibid., 386, 393.

(24.) Ibid, 393.

(25.) Ibid., 386.

(26.) Ibid., 392, 394-395. The principle of content neutrality has emerged as a key component of First Amendment law over the past quarter century. Content neutrality, in the words of Owen Fiss, "prohibits the state from regulating speech on the basis of what is being said." The principle is invoked to prevent the state from attempting to control the people's choice among competing viewpoints by favoring or disfavoring one side in a debate. As Fiss explains, "The principle responds to some underlying concern that the state might use its power to skew debate in order to advance particular outcomes." In an echo of Justice Dickson's thinking, however, Fiss worries that blind adherence to the principle may lead us to overlook the utility of disfavoring certain speakers, like hate mongers and pornographers, in the interest of securing the free speech rights of their victims. See Fiss, The Irony of Free Speech (Cambridge, Mass.: Harvard University Press, 1996), 19-21.

(27.) Ibid., 393.

(28.) Ibid., 393-394.

(29.) Ibid., 425.

(30.) Ibid., 388.

(31.) Ibid., 435.

(32.) R. v. Keegstra, 714.

(33.) 1 S.C.R. 103

(34.) R. v. Keegstra, 735.

(35.) R. v. Keegstra, 748. The majority opinion was written by Chief Justice Dickson and joined by Justices Wilson, and Gonthier. In dissent, Justice McLachlin countered that "The argument that criminal prosecutions for this kind of expression will reduce racism and foster multiculturalism depends on the assumption that some listeners are gullible enough to believe the expression if exposed to it. But if this assumption is valid, these listeners might be just as likely to believe that there must be some truth in the racist expression because government is trying to suppress it." Ibid., 853.

(36.) R. v. Keegstra, 747. Emphasis added.

(37.) The majority's reasoning in Keegstra parallels its reasoning in R. v. Butler, [1992] 1 S.C.R. 452. In Butler the Court upheld the criminal prohibition of obscenity on grounds that it is insulting and harmful to women and predisposes its male consumers to act in a violent or discriminatory way against them. By authorizing the state to limit speech in the course of suppressing obscenity, redefined as harmful sexual representation, the Court accepted a ban on pornography in the interest of promoting gender equality. Once again, the "harm" attached to the proscribed category of speech is conjectural. For an extended discussion of Butler in the context of the Court's free speech jurisprudence, see Moon, Freedom of Expression, 105-125.

(38.) R. v. Keegsrra, 747.

(39.) For a philosophical defense of Dickson's position arguing that the sociological reality of Canadian pluralism requires state action to preserve social comity, see Samuel LaSelva, "Pluralism and Hate: Freedom, Censorship, and the Canadian Identity," in K. Peterson and A. Hutchinson, eds. Interpreting Censorship in Canada (Toronto: University of Toronto Press, 1999).

(40.) R. v. Keegstra, 763. Dickson had only to consult the Charter itself to discover the community's commitment to equality and multiculturalism. Section 15, which reads much like the Equal Protection Clause of the Fourteenth Amendment, guarantees equality "before and under the law." Section 27, an interpretive clause, states that the Charter is to be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." However, neither section mandates differential treatment of minority groups. Dickson's decision to treat "identifiable groups" with special consideration reflects his own vision of the Canadian constitution.

(41.) R. v. Keegstra, 763.

(42.) Ibid., 777.

(43.) Terry Heinrichs, "Censorship as Free Speech! Free Expression Values and the Logic of Silencing in R. v. Keegstra," Alberta Law Review 3 6:4, 862.

(44.) See, for example, Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," Harvard Civil Rights-Civil Liberties Law Review 17(1982), 133-181; Man Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," Michigan Law Review 87(1989), 2320-2381; Charles Lawrence III, "If He Hollers Let Him Go: Racist Speech on Campus," Duke Law Journal (June 1990), 431-483; Richard Delgado and Jean Stefancic, "Hateful Speech, Loving Communities: Why Our Notion of 'A Just Balance' Changes so Slowly," California Law Review 82 (1994), 851-869; and Richard Delgado and David Yun, "Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation," California Law Review 82 (1994), 871-892. For a contextual treatment of their arguments, see Samuel Walker, Hate Speech: The History of an American Controversy (Lincoln, Neb.: University of Nebraska Press, 1994), 127-143. For a critical response, see Nicholas Wolfson, Hate Speech, Sex S peech, Free Speech (Westport, Conn.: Praeger, 1997) and James Weinstein, Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (Boulder, Col.: Westview, 1999).

(45.) R. v. Keegstra, 769. The structural arguments of the U.S. Court's radical critics were not Dickson's only American inspiration. He was also aware that in Beauharnais v. Illinois, 343 U.S. 250 (1952), the U.S. Supreme Court had upheld a group libel law that extended the categorical logic of Chaplinsky to group defamation. Dickson apparently believed that Beauharnais might still be good law. All indications are that he is mistaken on this point. Beauharnais was decided by the narrowest of margins (the vote was five to four), and in New York Times v. Sullivan, 376 U.S. 254 (1964), the Court moved away from the notion that libelous utterances are categorically outside the protection of the First Amendment. Also, in Cohen v. California, 403 U.S. 15 (1971), the Court began to narrow its application of "fighting words" solely to provocative utterances directed at individuals. Subsequent cases narrowed the application of the doctrine still further. Most First Amendment scholars today consider Beauharnais a dead letter.

(46.) Joseph Raz points out that "[o]ne of the difficulties in making multiculturalism politically acceptable stems from the enmity between members of different cultural groups." J. Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 163; quoted in Samuel LaSelva, "Pluralism and Hate: Freedom, Censorship, and the Canadian Identity," 51. LaSelva goes on to observe that such enmity "is not simply due to ignorance, but is endemic to multiculturalism and other forms of value pluralism" (emphasis added).

(47.) Stephen L. Newman, "What Not To Do About Hate Speech: An Argument Against Censorship," in R. Beiner and W. Norman, eds. Canadian Political Philosophy: Contemporary Reflections (Toronto: University of Toronto Press, 2001).

(48.) By assuming that both members of target groups are passive in the face of hate speech, the structural argument denies their performative role in reformulating the terms of public discourse. As Judith Butler argues from the standpoint of contemporary discourse theory, once we admit that racist utterances can be the bearers of equivocal meanings, we are forced to concede that "their power is, in principle, less unilateral and sure than it appears. Indeed, the equivocality of the utterances means it might not always mean in the same way, and that words that seek to injure might well miss their mark and produce an effect counter to the one that is intended." See her "Sovereign Performatives in the Contemporary Scene of Utterance," Critical Inquiry 23 (Winter 1997), 365.

(49.) R. v. Keegstra, 777.

(50.) Challenged to show why the constitutional presumption in favor of free expression does not require a showing that hatred actually results from hate propaganda, Dickson admitted that "it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group." R. v., Keegstra, 776. Terry Heinrichs reviews the statistical evidence presented by the Cohen Report and finds it remarkably weak: "the entire amount of hate propaganda materials distributed in Canada in [the two years covered by the report] consisted of 52 pieces!" Heinrichs, "Gitlow Redux: 'Bad Tendencies' in the Great White North," 56.

(51.) In response to the silencing argument, Justice McLachlin observed that "Freedom of expression guarantees the right to loose one's ideas on the world; it does not guarantee the right to be listened to or believed." R. v. Keegstra, 831-832.

(52.) R. v. Keegstra, 761-764. Interestingly, Dickson's understanding of the values underlying free expression is derived from American legal scholar Thomas Emerson's "Towards a General Theory of the First Amendment," Yale Law Journal 72.

(53.) Cf. Terry Heinrichs, "Censorship as Free Speech! Free Expression Values and the Logic of Silencing in R. v. Keegstra."

(54.) This was the position taken by White and Stevens in their separate concurrences.

(55.) Compare this comment on the decision in R.A.V. delivered by Justice John Paul Stevens in the course of his inaugural Ralph Elliot First Amendment Lecture at Yale Law School: "We should at least consider the possibility that racial, religious, and gender-based invectives can cause distinct and especially grievous injury, particularly when used by members of a powerful group against an individual already disadvantaged by a hostile environment. Most obviously, it is in that posture that an epithet comes closest to a threat, by evoking the ever-present spectre of bias-motivated violence, and, with it, real fear in the recipient." "The Freedom of Speech, The Yale Law Journal 102: 1311.

(56.) The question of legislative intent is likely to return to the U.S. Supreme Court. Just recently, the State Supreme Court of Virginia by a vote of four to three struck down a forty-year-old state law that banned cross-burning. Relying on the U.S. Supreme Court's ruling in R.A.V., the Virginia court held that "people have a right to use symbols to communicate....they may reverently worship the cross or burn it as an expression of bigotry." The ruling came despite the fact that the law was intended to prohibit use of the burning cross for purposes of intimidation rather than expression. See The New York Times On the Web, 3 November 2001.

(57.) In Ronald Dworkin's phrase, rights are "trumps." But this does not mean that rights are absolute; rather, it means simply that rights cannot be overridden by invoking general utility. It requires a showing of competing social values of sufficient urgency and importance as would justify impairing the right. Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 193.

(58.) Compare Franklyn S. Haiman, Speech and Law in Free Society (Chicago: University of Chicago Press, 1981), 16-42.

(59.) See David A.J. Richards, Toleration and the Constitution (New York: Columbia University Press, 1992). Richards argues that our commitment to equality obliges us to tolerate even the intolerant as a sign of "respect for their moral powers as persons." By showing intolerant individuals the respect they deny others, we include them "in the vital moralizing experience of a community of equal respect that most piercingly displays the nature of its moral community when it respects the conscience of advocates of ideologies at war with equal respect" (192).

STEPHEN L. NEWMAN is Associate Professor of Political Science at York University. He is the author of Liberalism at Wits' End: The Libertarian Revolt Against the Modern State and other pieces on liberalism and its critics. His current research concerns the theory and practice of toleration in liberal states.

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