The Freedom to Hate

Calling Canada's new proposed Online Harms Act Orwellian is unfair to Orwell. This is worse.. I channel the spirit of the late Christopher Hitchens to explain why.

In 2006, at the University of Toronto, my late friend and the brilliant writer and orator Christopher Hitchens gave a speech whose eloquence I could never pretend to emulate, defending the argument that the freedom of speech includes the freedom to hate.  At the time, he was castigating the Canadian government for its legislation regarding hate speech. 

Alas, once again the government has introduced legislation to curb free speech in the name of safety, but this time in even more insidious ways. Bill C-63, the Online Harms Act, purports to keep Canadians safe online, but does so by regulating speech that “foments hatred” via civil penalties within a human rights framework that invites abuse.

Under the proposed legislation the Canadian Human Rights Tribunal could fine defendants accused of online hate speech violation up to $50,000, and could be made to pay up to $20,000 to complainants.  Journalist Christine Van Geyn cogently described in the National Post last month the many worrisome features of this aspect of Bill C-63, which resurrects previously repealed attempts to allow hate speech to be penalized via civil rights penalties. 

Effectively, complainants bear no financial risks while having large financial incentives to make complaints, while those accused will be responsible for paying thousands of dollars to defend themselves even against frivolous complaints.  And complaints can be against anything you have ever written, going back as far as records might exist.   As Van Geyn put it “The process becomes the punishment even if the case does not proceed past an investigation.”

The Canadian criminal code already prohibits supposed hate speech, which is narrowly defined as advocating violence against individuals or groups.   A law which allows a tribunal of government bureaucrats, empowered with the same powers as a federal court—without any of the protections of rules of evidence provided in actual legal proceedings—to decide whether online speech foments hatred, and then to financially penalize individuals accused to have done so, is more than a direct assault on free speech. It is downright Kafka-esque!

But it gets even worse.  Toby Young, writing in The Spectator, pointed out an even more dangerous feature of this new legislation. “If the courts believe you are likely to commit a ‘hate crime’ or disseminate ‘hate propaganda’ (not defined), you can be placed under house arrest and your ability to communicate with others restricted. That is, a court can force you to wear an ankle bracelet, prevent you using any of your communication devices and then instruct you not to leave the house…. Anyone who refuses to comply with these diktats can be sent to prison.”

If prospect of this kind of thought-police legislation on its own doesn’t give Canadian legislators pause, they might want to learn from the example of Scotland. Their recent hate speech law has recently been widely mocked, including quite publicly by Harry Potter author J.K Rowling, who has invited authorities there to arrest her for claiming a man cannot become a woman, a biological claim deemed by some to be hate speech.   

Beyond the worrisome legal issues at place here, there are deeply misplaced philosophical underpinnings of the newly proposed legislation that I want to focus on here, returning to the brilliant arguments of Hitchens in 2006.

In the first place, aside from your own concern about who may decide whether your own speech is hateful, who do you trust to tell you what you should not be able to read online? Are you willing to give up the right to learn what others might think before knowing what they actually say?  And if they say something unpopular, or something you think was wrong, do you want to give up the right to learn why they say it?  

Next, if the speech is so unpopular that some deem it to be hateful, that speech is the speech most worth protecting.   I paraphrase a joke Hitchens used to say: if the Pope says he believes in God, one says to oneself, ‘well he is doing his job’.  But if he says he has doubts, then you might say “he may be onto something there”.  Speech that is the most difficult to express against the background of political correctness is the bravest, whether or not it may be true.  As a host of philosophers have pointed out, by denying the haters their right to express their views, you deny yourself the right to hear them.  Hearing them might force you to re-examine your views, which you might decide were wrong.  Or alternatively it may force you to come to grips with why you believe what you do.  In the end, you come away richer for it.

Although I am an atheist, I come from a Jewish background.  As such I have had my share of antisemitic insults thrown at me online over the past year.  When I read something hateful, I first recognize that the person has their own issues to deal with. I can choose to ignore them, which I usually do.  Or, depending on the way they say it, I may wonder, if they hate Jews, what is the reason?  And I may even respond.  Is there something I said, or anyone else said or did, or any government actions that caused this hatred?  Is there anything we can do to assuage this kind of hate in others in the future?  It may be stupid or ignorant, but shouldn’t be illegal to express reasons why one might hate Jews, or even encourage others to agree with you.  What is illegal and should be illegal is to claim that Jews should be killed or harmed, and to encourage others to kill them.  There is a profound difference.  The first speech can be countered by reason.  The second promotes violence against individuals.  

Finally, if fomenting hatred is to be forbidden online, what are we to make of religious teachings.  There are few books as full of hate, or which have promoted hate more than the sacred books of Judaism, Christianity, and Islam.  Islamic fundamentalists, for example, may claim Islamophobia when the violent teachings of their holy books, and the violent practices carried out in some corners of the world based on them, are called out.   But are the hate laws to be applied only to those who then condemn such teachings?  And if not, will Online Harms legislation forbid web pages that present the scriptures of these religions, which have in many cases fomented hatred not just for decades but for hundreds if not thousands of years?  Will people like me be able to claim $20,000 from every church, synagogue or mosque in the country every weekend when offending verses in the Old or New Testaments or the Koran are recited? 

It is a slippery road, and there is no way to avoid it except to defend free speech absolutely against tyrannical legislation like C-63.  And more generally, as a matter of fundamental principle, that means defending the freedom to hate.