Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
For the third time, a Muslim group in Canada has failed to get a ruling against McLean's magazine and Mark Steyn under the hate speech codes of various Canadian provinces:
The British Columbia Human Rights Tribunal ruled today that a controversial article about Islam in Maclean's magazine did not violate the province's hate speech law.In acquitting the magazine, the Tribunal ruled that the article, an excerpt from Mark Steyn's book America Alone in which he describes the demographic and ideological dangers posed by a growing Muslim population in the West, was not likely to expose Muslims to hatred or contempt.
Good. Now they need to end those authoritarian tribunals entirely.
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Ed, I'm not completely on board with hate speech laws in particular, but I am asking a serious question here, and I haven't seen you address it directly. I brought up this example in the confab in NY.
A bunch of guys drive up to your house, and say, "We think people here should sell their homes and promote development in the area." All of them are armed with pipes. They hold a "rally" to "encourage" people to sell. Is that free speech? How would you address that? They didn't threaten you or anyone else directly. I think it would count as racketeering, no?
OR: A bunch of neo-nazis hold a rally in Harlem and march down the street. All unarmed. The leader is yelling that all blacks should be killed. They aren't threatening any one person specifically. A bunch of their more violent people decide to go and kill a few people and do. Is the guy who said "all blacks should be killed" responsible for anything, and if so, what? Would you prosecute him? If so, for what?
I'm not saying mark Steyn hit that level yet, but technically in both cases you can't prosecute anyone encouraging clearly violent behavior. 'I just said all blacks should be killed, I didn't say go after anyone" even though you know what's going to happen if you scream that at a rally full of violent thugs, that isn't free speech to me, that's no different from ordering someone to kill a specific person.
So I am seriously asking Ed, how you would address those kinds of situations. How do you stop the guy who encourages people to do insane things and walks away, claiming free speech rights? This stuff actually happens. So I am wondering where you draw the line.
Posted by: Jesse | October 14, 2008 12:19 PM
OH look! a poll
http://www.pbs.org/now/polls/poll-435.html
Do you think Palin is qualified.. to be the pooper scooper in the circus?
Posted by: Kevin | October 14, 2008 12:22 PM
OH Wait! seems to be bad info. poll is old and already trashed.
Posted by: Kevin | October 14, 2008 12:23 PM
Re jesse
Mr. jesses' examples may possibly fall under the category of yelling fire in a crowded theater.
Posted by: SLC | October 14, 2008 12:38 PM
As the old adage goes, "Sticks and stones may break my bones, but words will never hurt me."
I always considered the defining line as that which differentiates intention from action. Claiming that a particular action was going to happen because someone advocated it is meaningless as you enter into the realm of the hypothetical. Actually doing something, however, is an entirely different story. Telling someone "I'm going to kill you" is entirely different from shoving three inches of steel into their stomach.
Just my opinion, though the law may disagree with me on several places there.
Posted by: MisterDomino | October 14, 2008 12:52 PM
I've been thinking about this issue a lot lately. A while back, one of the candidates for government (Member of a small Christianist party) was asked about his position on gay marriage at a high school, and replied that it was his belief that homosexuals should be executed. Should he be prosecuted for that?
And despite how awful the statement is, I ended up realizing that I wouldn't prosecute him. For starters, as abhorrent as the statement is, it's still talking about a legal framework, much the way executing any other people who have committed a specific crime might be punished. It also completely killed any chance of his being elected; he might as well have said his public policy was to gas the Jews again. Had he hidden his views behind weasel words, shouded hints or outright lies, he might have gained a larger percentage of the votes.*
I still think there's a notable historical danger of illegal vigilantism either with government support or against it (I.e. the KKK, Patriot movements, or the role of radio in ethnic cleansing). Ultimately, I think if there is to be 'Hate Speech' legislation, it needs to be very finely tuned; as in the promotion of explicitly illegal activity against a group of people, rather than merely saying critical, mean or libelous things.
*Note: There's really no way he could have won, since the plurality voting system restricts multiple parties up here in Canada much as they do in the US. The difference seems to be that regional voting patterns shift the duopoly away from Conservative/Liberal in some areas to Liberal/NDP, PQ, or Green, which gives them more viability on the national stage.
Posted by: Left_Wing_Fox | October 14, 2008 1:09 PM
@ Left Wing Fox
Just out of curiosity, who will do this fine tuning? What principles will the "fine-tuners" use to craft hate speech law? Will any illegal activity warrant prosecution under the hate speech laws or just really bad illegal activity?
Posted by: David C. Brayton | October 14, 2008 2:01 PM
Ed,
I don't think that abolition of the BC Human Rights Tribunal is the answer. The Tribunal deals with a variety of other cases, mostly much more justifiable than the "hate speech" cases, and it does seem useful to have an initial mechanism that is lower-key than the regular courts. Rather, I suggest repeal of the offending portion of the law, which is Section 7 of the British Columbia Human Rights Code (Chapter 210, Revised Statutes of British Columbia).
Posted by: Bill Poser | October 14, 2008 2:14 PM
Ed said:
"Good. Now they need to end those authoritarian tribunals entirely."
Why? Here we have an example of the Canadian system working AND the system setting a precedent.
Hopefully, in future, groups will not tend to use the tribunal systems to adjudicate cases they will lose.
We need to give the Canadian system time to work out the kinks.
Posted by: Gingerbaker | October 14, 2008 2:18 PM
Gingerbaker,
Well, yes, the system worked, but not without putting Steyn and MacLeans to a lot of trouble and expense and giving the Muslims a bully pulpit for sliming them. As a taxpayer, I don't want to pay for this, and as a civil libertarian, I don't want people put through this kind of nonsense. Because it isn't very expensive to take a case to the Tribunal, and because the Tribunal may well say nasty things about the defendant, even if they do not uphold the complaint, which is what happened in this case, there is motivation for complainants to continue to bring cases like this. There is simply no justification for a law like Section 7 in a free society. It should be repealed.
Posted by: Bill Poser | October 14, 2008 2:55 PM
Jesse, there's an old saying in the law; "hard cases make bad law." You're posing some of those hard cases, and the reality is that they remain hard, no matter how much we struggle with them.
In the case of the guys carrying pipes, it may not be their speech that is the problem, but the threat they are displaying by carrying a pipe. Many jurisdictions have laws against threatning, or terrorizing. Pointing an unloaded gun at someone, for example, could be a crime because of the threat implied. I think the same logic could apply to the pipes, since, in your example, the whole group is carrying them. So there could be a criminal action, severable from the issue of their words.
The other case is even harder. IIRC, the courts tend to apply a sort of proximal cause analysis. That is, if I preach to a crowd that all Qs should be killed, then one of my listeners drives around for a few hours until he finds a Q, then kills him, my speech may be protected because the speech and the action are not proximate. (For example, if someone kills a black person because he read in the Turner Diaries that he should, the author is not legally culpable.) If I say all Qs should be killed while one is passing by where I am speaking, and someone acts on it, then the proximity between my speech and that person's action is much more proximate, and it may be that I have incited an illegal action. That analysis doesn't provide a bright line, however, so individual cases may remain very debatable.
Posted by: James Hanley | October 14, 2008 9:05 PM
What, then, about people who give big public speeches to enthusiastic crouwds saying that bank-robbers ought to be rounded up and thrown in prison?
Sure - you and I agree that bank robbery should be illegal and gayness shoudn't, but what do you say to people who *do* think that it's a terrible, terrible public menace?
Posted by: Paul Murray | October 14, 2008 10:07 PM
But the system doesn't set a precedent, really. It ruled that a specific article was not likely to expose Muslims to hatred or contempt. Presumably every other article that gets complained about would have to be scrutinized individually.
Plus, does precedent even exist in a tribunal system like this? The rules of evidence are...unusual, so I wouldn't be surprised if precedent was totally excluded.
Posted by: nicole | October 15, 2008 9:34 AM
Bill Poser said:
"Well, yes, the system worked, but not without putting Steyn and MacLeans to a lot of trouble and expense and giving the Muslims a bully pulpit for sliming them"
That IS a problem, and should be rectified, perhaps through a simple rule change about who pays for winners expenses. I don't think it is reason to throw the baby out with the bathwater, so to speak.
"There is simply no justification for a law like Section 7 in a free society."
I disagree. While the system in the U.S. has its merits, so do the systems in Canada and most European countries, where certain hate speech carries state consequences.
If you want "justification for a law like Section 7", here is a list of victims of hate crimes - all murdered: http://www.stophate.us/victims.html
I am sure if you asked the government of Germany "What is the justification for your laws proscribing Holocaust denial?" they would answer: The six million Jews who died because of the Holocaust.
Here in the U.S. (and I assume similarly in Canada, Europe, and all other free states) our speech is already restricted in many, many ways:
(From the Congressional Research Service)
1) Obscenity laws - the First Amendment provides no protection to obscenity, child pornography
2) Inciting violence - the First Amendment provides no protection for speech that constitutes"advocacy of the use of force or of law violation ... where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
The First Amendment provides less than full
protection to:
3)Commercial speech
4) Defamation (libel and slander)
5) Speech that may be detrimental to children
6) Speech broadcast on radio or television
7) Public employee speech
-> Even speech that enjoys the most extensive First Amendment protection may
be subject to "regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication." And, even speech that
enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes "strict scrutiny," i.e., if the government shows that the restriction serves "to promote a compelling interest" and is "the least
restrictive means to further the articulated interest."
I would posit that preventing future hate murders could be a "compelling interest".
So, our speech is already restricted quite a bit. These are literally hundreds of millions of things we can not say about our neighbors alone!
Hate speech laws strive to add a few more topics to that already enormous list. And just what sort of topics are they? I would argue that they are arguments that advance little to nothing in the marketplace of ideas.
I see no value to yet another iteration that the Holocaust never occurred, or that Jews are responsible for the ills of the world, or that gays brought God's wrath upon New Orleans, or that all Muslims should be rounded up and executed. No value whatsoever.
So I see hate speech laws as trying to accomplish something noble by attempting to gradually decrease intolerance in society. I see the speech that would be restricted as having negligible value.
All that said, I think a system which does not attempt to restrict hateful speech, but rather to meet it with enlightened speech as a valid approach also.
And make no mistake, hate speech law is a slippery slope, fraught with dangers.
From the looks of it, your Canadian Section 7 looks badly worded and overly broad. But I think such laws are easily justified if a society wants them.
Posted by: Gingerbaker | October 15, 2008 9:39 AM
It is estimated that the death toll from this hate speech includes 60-70 million Hindus alone (in the Hindu Kush, "Hindu slaughter"). Should the Koran be banned in Canada? the civilized world?
Posted by: Reality Czech | October 15, 2008 12:20 PM
Mark Steyn is a human gasbag, and his book is a heap of crap, but I am glad he won. Free printed speech is entitled to protection, as long as it does not call explicitly for violence.
But remember; if there had never been a Holocaust, and Hitler were to write "Mein Kampf" today with Muslims in place of Jews, that means the book should be defended. Loathsome and hateful as it sounds, I think so. Freedom of speech is not an easy right.
I think the situations that Jesse alludes to above, threatening or provocative demonstrations with hate speech, are capable of being outlawed. The Neo-Nazi march in Skokie, Illinois is a famous case (1977). Skokie contained many Jews, survivors of the Holocausts and refugees, so the planned march caused an outcry. The ACLU supported the Neo-Nazis, who had been banned from Chicago. The march was never held in Skokie because the Chicago authorities relented their ban in the city.
I know in Britain or Ireland, a march can be banned as "capable of causing a breach of the peace" i.e. public order is given a higher priority than free speech in this case. For years, Northern Ireland was plagued with "traditional" parades of Protestant marching bands through Catholic districts, until a Special Commission was given authority over the marches. Generally, they are now allowed as long as they contain no provocative displays, in which case they will be banned the following year, maybe forever.
I am not sure of the situation in the US? Is it left up to State or local authorities?
Posted by: toby | October 16, 2008 9:30 AM
@James Hanley--
That's kind of what I was getting at. I think, for example, the Nazi party has a right to march down the street if they want. But when the leader of that march is advocating violence and says "I didn't control the thugs in the audience who just beat someone up" then I do NOT think he can say "free speech."
Ed sometimes misses, I think, that even speech that isn't specific can be used as a form of intimidation. When the Klan marches through black neighborhoods, the point isn't to make their case, the point is to intimidate. "We have loads of people -- some of whom might be local cops, and we can do anything we want to you" is the message. "I'm going to kill you" is not protected, and neither should "We can kill you whenever we want, don't leave this neighborhood at night" be. I would put that in the very same category as extortion which isn't free speech either. (And most organized crime rings are smart enough not to say outright what they are doing).
That's qualitatively different from a group that marches in the street trying to convince political leaders of their case, by saying essentially we won't vote for you. Or civil disobedience, where the whole point is non-violence.
There are a lot of issues with speech and its consequences. And while I believe that there has to be a marketplace of ideas, I also think that there are some that should be socially unacceptable, and as a society we all sort of have the right to say "Hey, that's not cool, you could really get somebody hurt, and you are displaying a callous disregard for that fact."
Posted by: Jesse | October 16, 2008 11:40 AM