A recent Canadian case, The Queen v. Sears and St. Germaine, involved the now-familiar issues of free speech, dehumanizing propaganda, and public expression of hatred. Decided in late January 2019, the case ended with convictions for James Sears and LeRoy St. Germaine, the editor and publisher, respectively, of Your Ward News (YWN), a loathsome “community newspaper” with perhaps as many as a million readers. Sears and St. Germaine were on trial for the crime of “wilful promotion of hatred against an identifiable group” (in this case, Jews and women).
Twenty-two issues of YWN were published from 2015 to 2018. Much of its content was anti-Marxist and focused on attacking left-wing politicians. However, as detailed in the court’s judgment, there was also a relentless stream of pro-Nazi, anti-Semitic, anti-feminist, and savagely misogynist propaganda. Much of this involved dehumanizing representations of Jews and women, and it seems that much of it could reasonably be interpreted as inciting violence. At the same time, some of YWN’s content appears to have been no more (or less) than advocacy of extreme and unpopular ideas. These ranged from Holocaust denialism and adulation of Adolf Hitler to toxic opinions about feminism and gender roles.
Previous Canadian cases had found the relevant provision of the Criminal Code to be constitutional, but this required construing the code’s bland words in a narrow way. In 1990, the Supreme Court of Canada held that hatred is an extreme and intense emotion associated with vilification and detestation and that it implies that the hated individuals should “be despised, scorned, denied respect, and made subject to ill-treatment” based on their membership in the hated group.
All this reflects a distinctively Canadian approach to laws that encroach on freedom of speech. The Canadian Charter of Rights and Freedoms includes “freedom of thought, belief, opinion and expression” (among many other freedoms), but it contains a proviso that all its constitutional protections are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This allows the government to defend a law that would otherwise be unconstitutional by demonstrating that it is needed “in a free and democratic society” to safeguard a vital social interest.
In practice, the Canadian courts rescue some laws from unconstitutionality by reading them as if they are directed at only the most extreme kinds of speech that might fall within their wording. In this case, Sears and St. Germaine could not have been found guilty of “wilful promotion of hatred” unless the material they’d produced incited hatred—as narrowly defined by the Supreme Court—with everything that this implies in terms of inciting some kind of ill-treatment.
If there’s a problem with Canada’s approach, it is not that dehumanizing propaganda deserves protection because it is helpful to public discussion of ideas. YWN could have argued for unpopular, or even outrageous, ideas if it had avoided dehumanization and anything that looked like advocacy of ill-treatment—up to and including acts of violence—of Jews and women. The reasonable concern, rather, is that this is territory where the slopes are slippery.
Although we should be wary of slippery-slope arguments, they are not always fallacious. Logically sound arguments based on slippery-slope reasoning make true (or acceptably plausible) empirical claims about pressures that tend to force us down a slope toward an unwanted outcome.
Slippery-slope reasoning is especially persuasive when it is employed to defend strict protection of free speech. In the absence of a near-absolute rule against government censorship, it is difficult to draft legislation that distinguishes clearly between speech that is and is not insulated from the censor. Moreover, centuries of human experience show how tempting it is to enforce a conformity of opinion, whether through official censorship or via informal means such as shaming and ostracism. When it comes to enforcing social orthodoxies—and hence suppressing heresies—we really are on a slippery slope.
Thus, Jerry Coyne (writing on his popular Why Evolution Is True website) expressed reasonable concerns about the Sears and St. Germaine case shortly after it was decided. As he pointed out, there can be a fine line between demonizing a hated group and, for example, criticizing Judaism or floating an unpopular proposal to lower the age of consent.
This is an important point. At the same time, all jurisdictions impose some limits on what can be said. Even U.S. constitutional law does not protect all speech whatsoever. For example, it is possible to sue for defamation in the United States (although it might be difficult to win if you are a public official or even a “public figure”). There are numerous other exceptions in U.S. law to total freedom to say anything. Most of these exist for good reasons and have respectable historical pedigrees, but we should not assume that U.S. law draws all the lines in exactly the right places. Conversely, the Supreme Court of Canada at least seems principled and serious about allowing only narrow exceptions to the freedoms specified in the Canadian Charter.
I doubt that there is a single “right” approach to these line-drawing issues. At any rate, it’s good to remember that pressures to conform in thought and its expression do not come only from the formal law but also from numerous social pressures. This is the tyranny of prevailing opinion famously identified by John Stuart Mill in On Liberty. Hence, even while recognizing some kinds of speech, such as dehumanizing propaganda, as genuinely dangerous, we must apply pressures of our own to ensure the widest possible scope for public discussion of ideas. This means protecting the breadth of public discussion not only from government censorship but also from informal methods of suppression that can be more constricting in practice.