CHAPTER V

DISCRIMINATORY EXPRESSION

A. INTRODUCTION V-2

B. CRIMINAL SANCTIONS V-3

R. v. Keegstra V-3

R. v. Zundel V-24

C. HUMAN RIGHTS LEGISLATION V-37

Canada (Human Rights Commission) v. Taylor V-36

Ross v. New Brunswick School District No. 15 V-44

Human Rights Amendment Act, 1993 V-53

D. THE FIRST AMENDMENT V-54

Beauharnais v. Illinois V-54

R.A.V. v. St. Paul V-59

Wisconsin v. Mitchell V-64

Village of Skokie v. National Socialist Party of America V-66

Doe v. University of Michigan V-73

A. INTRODUCTION

This Chapter considers the status of activity that is offensive because it expresses discriminatory or racist views about individuals on the basis of race, religion or ethnic heritage. Since the Charter, limits on this kind of offensive expression have been upheld both under the Criminal Code and pursuant to human rights legislation. The first section looks at the Supreme Court of Canada=s decisions under s.319(2) (hate propaganda) and s.181 (false news) of the Code in Keegstra and Zundel. The next section examines the relationship between anti-discrimination legislation and expressive freedom in Taylor and Ross. To what extent, if any, should the nature of the sanction (i.e., criminal v. civil) be considered in determining the justifiability of limits on expressive freedom?

These cases have important implications for the relationship between expressive freedom and other values such as equality and multiculturalism, the standard of review under s.1, the concept of harm, and the chilling effect of prohibiting unpopular views.

A final section includes materials from the First Amendment tradition. Beauharnais v. Illinois is an older precedent that upheld a group defamation but was called into question by the Skokie litigation. R.A.V. and Wisconsin v. Mitchell are more recent decisions which demonstrate the U.S. Supreme Court=s difficulty reconciling an anti-censorship First Amendment tradition with America=s protracted battle against discrimination. Finally, the Doe case provides an example of the controversy that has been stirred in recent years by Acampus codes@ and limits on expression in the workplace.

B. CRIMINAL SANCTIONS

R. v. Keegstra

[1990] 3 S.C.R. 697

Dickson C.J. (Wilson, L'Heureux-Dubé and Gonthier JJ., concurring)

Section 2(b)

... [The first question is] whether the Charter guarantee of freedom of expression is infringed by s. 319(2) of the Criminal Code. ... [T]he reach of s. 2(b) is potentially very wide ... [T]he Court has not lost sight of this broad view of the values underlying the freedom of expression ...

Irwin Toy can be seen as at once clarifying the relationship between ss. 2(b) and 1 in freedom of expression cases and reaffirming and strengthening the large and liberal interpretation given the freedom in s. 2(b) by the Court in Ford. These aspects of the decision flow largely from a two-step analysis used in determining whether s. 2(b) has been infringed ...

The first step in the Irwin Toy analysis involves asking whether the activity of the litigant who alleges an infringement of the freedom of expression falls within the protected s. 2(b) sphere... . Apart from rare cases where expression is communicated in a physically violent form, the Court [] viewed the fundamental nature of the freedom of expression as ensuring that "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee" []. In other words, the term "expression" as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed. [] The second step in the analysis ... is to determine whether the purpose of the impugned government action is to restrict freedom of expression....

... Communications which wilfully promote hatred against an identifiable group without doubt convey a meaning ... Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It ... must therefore be concluded that the first step of the Irwin Toy test is satisfied.

Moving to the second stage of the s. 2(b) inquiry, one notes that the prohibition in s. 319(2) aims directly at words ... that have as their content and objective the promotion of racial or religious hatred. ... Section 319(2) therefore overtly seeks to prevent the communication of expression, and hence meets the second requirement of the Irwin Toy test. ...

... Before moving on to [s. 1], however, I wish to canvas two arguments ... The first of these arguments concerns an exception mentioned in Irwin Toy concerning expression manifested in a violent form. The second relates to the impact of other sections of the Charter and international agreements...

... [I]t was argued before this Court that the wilful promotion of hatred is an activity the form and consequences of which are analogous to those associated with violence or threats of violence.... Indeed, in support of this view it was pointed out to us that the Court in Irwin Toy stated that "freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure"....

I begin by stating that the communications restricted by s. 319(2) cannot be considered as violence, which on a reading of Irwin Toy I find to refer to expression communicated directly through physical harm. Nor do I find hate propaganda to be analogous to violence, ... As I have explained, the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. ... Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is [expression falling] within the coverage of s. 2(b).

As for threats of violence, Irwin Toy spoke only of restricting s. 2(b) to certain forms of expression... . While the line between form and content is not always easily drawn, in my opinion threats of violence can only be so classified by reference to the content of their meaning. As such, they do not fall within the exception spoken of in Irwin Toy, and their suppression must be justified under s. 1....

The second matter ... concerns the relevance of other Charter provisions and international agreements.... Because I will deal extensively with the impact of various Charter provisions and international agreements when considering whether s. 319(2) is a justifiable limit under s.1, I will keep my comments here to a minimum. Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal,[ ] where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well-suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) ... ; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. ...

C. Objective of s. 319(2)

... In examining the objective of s. 319(2), I will begin by discussing the harm caused by hate propaganda ..., and then review in turn the impact upon this objective of international human rights instruments and ss. 15 and 27 of the Charter.

(i) Harm caused by expression promoting the hatred of identifiable groups

... [T]he presence of hate propaganda in Canada is sufficiently substantial to warrant concern. Disquiet caused by the existence of such material is not simply the product of its offensiveness, however, but stems from the very real harm which it causes. Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence.... [W]ords and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group, and in this regard the Cohen Committee noted that these persons are humiliated and degraded [].

... The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity ...

A second harmful effect of hate propaganda... is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe "almost anything"...:

... we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature....

 

We cannot share this faith today in such a simple form. While holding that 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 the 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.

 

It is thus 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. Moreover, the alteration of views held by the recipients of hate propaganda may occur subtly, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth....

... With these dangers in mind, the Cohen Committee made clear in its conclusions that the presence of hate propaganda existed as a baleful and pernicious element, and hence a serious problem, in Canada ...

(ii) International human rights instruments

[Dickson C.J. reviewed various international human rights covenants, which provide that States who are parties must prevent racist propaganda and discriminatory doctrines and legislate against incitement to racial or religious hatred against identifiable groups.]

(iii) Other provisions of the Charter

... ss. 15 and 27 represent a strong commitment to the values of equality and multiculturalism, and hence underline the great importance of Parliament's objective in prohibiting hate propaganda.

Looking first to s. 15, in R. v. Big M Drug Mart Ltd.[], I said that "[a] free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter"[]. Section 15 lends further support to this observation, for the effects of entrenching a guarantee of equality... are not confined to those instances where it can be invoked by an individual against the state. Insofar as it indicates our society's dedication to promoting equality, s. 15 is also relevant in assessing the aims of s. 319(2)...under s. 1....

... In light of the Charter commitment to equality, and the reflection of this commitment in the framework of s. 1, the objective of the impugned legislation is enhanced insofar as it seeks to ensure the equality of all individuals in Canadian society. The message of the expressive activity covered by s. 319(2) is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. The harms caused by this message run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

... I am of the belief that s. 27...bears notice in emphasizing the acute importance of the objective of eradicating hate propaganda from society. ... [Of] the factors which may be used to inform the meaning of s. 27, ... I expressly adopt the principle of non-discrimination and the need to prevent attacks on the individual's connection with his or her culture, and hence upon the process of self-development []. Indeed, the sense that an individual can be affected by treatment of a group to which he or she belongs is clearly evident in a number of other Charter provisions not yet mentioned, including ss. 16 to 23 (language rights), s. 25 (aboriginal rights), s. 28 (gender equality) and s. 29 (denominational schools). ...

When the prohibition of expressive activity that promotes hatred of groups identifiable on the basis of colour, race, religion, or ethnic origin is considered in light of s. 27, the legitimacy and substantial nature of the government objective is therefore considerably strengthened.

In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance....

The second branch of the Oakes test -- proportionality -- poses the most challenging questions with respect to the validity of s. 319(2) ...

In discussing the ... government objective, I have commented at length upon the way in which the suppression of hate propaganda furthers values basic to a free and democratic society. I have said little, however, regarding the extent to which these same values, ... are furthered by permitting the exposition of such expressive activity. This lacuna is explicable when one realizes that the interpretation of s. 2(b) under Irwin Toy [] gives protection to a very wide range of expression. Content is irrelevant to this interpretation, the result of a high value being placed upon freedom of expression in the abstract.... In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

In Rocket v. Royal College of Dental Surgeons of Ontario,[] McLachlin J. recognized the importance of context in evaluating expressive activity under s. 1.... Applying that approach to the context of this appeal is a key aspect of the s. 1 analysis. One must ask whether the expression prohibited by s. 319(2) is tenuously connected to the values underlying s. 2(b).... In this regard, ... there can be no real disagreement about the subject matter of the messages and teachings [of] Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society.... To say merely that expression is offensive and disturbing, however, fails to address satisfactorily the question of whether, and to what extent, the expressive activity prohibited by s. 319(2) promotes the values underlying the freedom of expression. ...

[E]xpression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values. At the core of freedom of expression lies the need to ensure that truth and the common good are attained.... Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world....

Another ... rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfilment....It is true that s. 319(2) inhibits this process among those individuals whose expression it limits,.... The message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy [the same] aspect of the s. 2(b) benefit....

Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm....

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values.... I am aware that the use of strong language in political and social debate...is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas antithetic to democratic values. Hate propaganda works in just such a way. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.

... I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values... I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. ... In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.

... While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis,...limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that "restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)"[]....

ii) Rational connection

... Those who would uphold the provision argue that the criminal prohibition of hate propaganda obviously bears a rational connection to the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations.... I agree, for in my opinion it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does....

Doubts have been raised, however....First, it is argued that the provision may actually promote the cause of hate-mongers by earning them extensive media attention.... Second, the public may view the suppression of expression by the government with suspicion, making it possible that such expression... is perceived as containing an element of truth. Finally, it is often noted [] that Germany of the 1920s and 1930s possessed and used hate propaganda laws similar to those existing in Canada, and yet these laws did nothing to stop the triumph of a racist philosophy under the Nazis.

... I recognize that the effect of s. 319(2) is impossible to define with exact precision -- the same can be said for many laws, criminal or otherwise. In my view, however, the position that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. ...

In sum, having found that the purpose of the challenged legislation is valid, I also find that the means chosen to further this purpose are rational in both theory and operation, and therefore conclude that the first branch of the proportionality test has been met. ...

...The main argument of those who would strike down s. 319(2) is that it creates a real possibility of punishing expression that is not hate propaganda....

In assessing the constitutionality of s. 319(2), ... an immediate observation is that statements made "in private conversation" are not included in the criminalized expression.... Moreover, it is reasonable to infer a subjective mens rea requirement.... Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public....

A second important element of s. 319(2) is its requirement that the promotion of hatred be "wilful". ... This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. ...

It has been argued, however, that even a demanding mens rea component fails to give s. 319(2) a constitutionally acceptable breadth. The problem is said to lie in the failure of the offence to require proof of actual hatred resulting from a communication, the assumption being that only such proof can demonstrate a harm serious enough to justify limiting the freedom of expression under s. 1. ...

While mindful of the dangers ... I do not find them sufficiently grave to compel striking down s. 319(2). First, to predicate the limitation of free expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda. Second, it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group. ... It is well-accepted that Parliament can use the criminal law to prevent the risk of serious harms...[and] I conclude that proof of actual hatred is not required in order to justify a limit under s. 1....

The meaning of "hatred" remains to be elucidated. Just as "wilfully" must be interpreted in the setting of s. 319(2), so must the word "hatred" be defined according to the context in which it is found....Noting the purpose of s. 319(2), in my opinion the term "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation....

Those who argue that s. 319(2) should be struck down submit that it is impossible to define with care and precision a term like "hatred". Yet, as I have stated, the sense in which "hatred" is used in s. 319(2) does not denote a wide range of diverse emotions, but is circumscribed so as to cover only the most intense form of dislike....

The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly, yet I do not think that the subjectivity inherent in determining whether the accused intended to promote hatred, as opposed to an emotion involving a lesser degree of antipathy, represents an unbridled license to extend the scope of the offence. [A] judge should direct the jury (or him or herself) regarding the nature of the term as it exists in s. 319(2). Such a direction should include express mention of the need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful. If such a warning is given, the danger referred to above will be avoided....

The factors mentioned above suggest that s. 319(2) does not unduly restrict the s. 2(b) guarantee.... The specific defences provided are further glosses on the purview of the offence, and I repeat them here.

(3) No person shall be convicted of an offence under subsection (2)

 

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

 

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

 

A careful reading of the s. 319(3) defences shows them to take in examples of expressive activity that generally would not fall within the "wilful promotion of hatred" .... Thus the three defences which include elements of good faith or honest belief -- namely, ss. 319(3)(b), (c) and (d) -- would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief.... To the extent that s. 319(3) provides justification for the accused who would otherwise fall within the parameters of the offence of wilfully promoting hatred, it reflects a commitment to the idea that an individual's freedom of expression will not be curtailed...

The overlap between s. 319(2) and the defences is less pronounced in the case of the defence of truth, s. 319(3)(a) being more likely than the other defences to excuse the wilful promotion of hatred. This increased likelihood reveals the defence in paragraph (a) to be an especially poignant indicator of Parliament's cautionary approach and care in protecting freedom of expression. [I]f a situation arises where an individual uses statements of truth in order to promote hatred against identifiable groups, the accused is acquitted despite the existence of the harm ... Excusing the accused who intentionally promotes hatred ... is thus a circumspect measure associated with the importance attributed to truth ...

It has been forcefully argued before us that the defence of truth is insufficient protection against an overly broad hate propaganda law. In this vein, it is rightly pointed out that many (if not most) of the communications coming within s. 319(2) are not susceptible to a true/false categorization ... The accused could therefore sincerely believe in the worth of his or her viewpoint and yet be unable to utilize the s. 319(3)(a) defence. Moreover, it is said that, even where a statement is capable of categorization as true or false, the individual honestly mistaken as to the validity of his or her position... is left unprotected, a result which dangerously restricts freedom of expression, causing a "chill" on communications.... Finally, one might wonder if the courts are not on dangerous ground in attempting to distinguish between truthfulness and falsehood. The potential for bias in making such a determination, be it intentional or subconscious, is a danger frequently noted in freedom of expression theory....

The way in which I have defined the s. 319(2) offence... gives me some doubt as to whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation. Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred....

Nevertheless, it is open to Parliament to make a concession to free expression values, whether or not such is required by the Charter. Deference to truth as a value central to free expression has thus led Parliament to include the defence in s. 319(3)(a) ... When the statement contains no truth, however, this flicker of justification for the intentional promotion of hatred is extinguished....

Whether or not a statement is susceptible to classification as true or false, my inclination is therefore to accept that such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. That the legislative line is drawn so as to convict the accused who is negligent or even innocent regarding the accuracy of his or her statements is perfectly acceptable, for the mistake is not as to the use to which the information is put, namely, the promotion of hatred against an identifiable group. As for the argument that the courts and legislature should not involve themselves in the evaluation of "truth", "reasonable grounds for finding truth" or "public interest", the same response applies. Where the likelihood of truth or benefit from an idea diminishes to the point of vanishing, and the statement in question has harmful consequences ... it is not excessively problematic to make a judgment that involves limiting expression.

... It is said that the presence of the legislation has led authorities to interfere with a diverse range of ... expression .... That s. 319(2) may in the past have led authorities to restrict expression offering valuable contributions to the arts, education or politics in Canada is surely worrying. I hope, however, that my comments as to the scope of the provision make it obvious that only the most intentionally extreme forms of expression will find a place within s. 319(2). ... The possibility of illegal police harassment clearly has minimal bearing on the proportionality of hate propaganda legislation to legitimate Parliamentary objectives....

One of the strongest arguments is that a criminal sanction is not necessary to meet Parliament's objective.... I agree that... [it] is important, in my opinion, not to hold any illusions about the ability of this one provision to rid our society of hate propaganda and its associated harms....

In assessing the proportionality of a legislative enactment to a valid governmental objective, however, s. 1 should not operate in every instance so as to force the government to rely upon only the mode of intervention least intrusive of a Charter right or freedom. It may be that a number of courses of action are available.... In such circumstances, the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action.... Though the fostering of tolerant attitudes among Canadians will be best achieved through a combination of diverse measures, the harm done through hate propaganda may require that especially stringent responses be taken....

... I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness....

... It will by now be quite clear that I do not view the infringement of s. 2(b) by s. 319(2) as a restriction of the most serious kind. The expressive activity at which this provision aims is... only tenuously connected with the values underlying the guarantee of freedom of speech. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. ...

McLachlin J., dissenting (Sopinka J. concurring, LaForest J. concurring in this part of the judgment)

Section 2(b)

Three arguments are advanced in support of the proposition that statements violating s.319(2) do not fall within the sphere of protection accorded to freedom of speech by s.2(b)... . The first is the argument that the form of the statements is not protected because they are akin to violence or threats of violence and are thus excluded from s.2(b). The second is the submission that, for a variety of reasons including other provisions of the Charter and Canada=s international obligations, s.2(b) should be construed as not extending to this type of speech. The third is the argument that he promotion of hatred is evil and of no redeeming value and hence not worthy of protection. I shall consider each of these arguments in turn.

A. The argument based on violence

The first argument is that promoting hatred is equivalent to threats of violence and hence, assumes a form which falls outside the protected sphere of s.2(b). As already noted, this court held in Dolphin Delivery, [] that freedom of expression does not extend to protect threats or acts of violence. Relying on this jurisprudence, it was agreed before us that in so far as Mr. Keegstra=s statements promote hatred, they are analogous to threats of violence and are therefore not protected.

This argument depends on an extension of the category of exceptions to s.2(b), since it is plain that Mr. Keegstra=s statements constituted neither a Athreat@ nor an Aact of violence@. ...

Nor do Mr. Keegstra=s words fulfill the requirement of violence. ... Violence as discussed in Dolphin Delivery and Irwin Toy connotes actual or threatened physical interference with the activities of others.

I conclude that Keegstra=s statements do not constitute either violence or threats of violence. This leaves for consideration the alternative argument that statements calculated to promote hatred are akin to threats of violence and should be excluded from s.2(b) on this ground.

In general, I would be reluctant to widen an exception to a Charter right or freedom, absent a clear showing of social or logical necessity. Such a necessity is present in the case of violence or threats of violence. Is this equally present in the case of hate propaganda?

I think not. The justification for excluding violence as a protected form of expression is not just that violence is harmful to the victim, it is rather that violence is inimical to the rule of law on which all rights and freedoms depend. Threats of violence are similarly inimical. They are coercive, taking away free choice and undermining freedom of action. Most fundamentally, they undercut one of the essential justifications of free expressionCthe role of free expression in enhancing the freedom to choose between ideas (the argument based on truth) or between courses of conduct (the argument based on democracy). Being antithetical to the values underlying the guarantee of free expression, it is logical and appropriate that violence and threats of violence be excluded form its scope.

How does promotion of hatred compare? In some contexts, it is not inimical to the workings of democracy. For example, in the heat of political debate protagonists frequently make overstated attacks that could easily be described as Apromoting hatred@. Opponents are called incompetent, or corrupt, or unintelligentCor worse. Groups of opponentsCfor example, cabinet ministers or members of the opposing partyCmay be categorically vilified. Yet, even assuming an intention to promote hatred of members of those groups or the foresight that hatred may result, there is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. ...

It has been suggested that hate propaganda undermines the guarantee of free expression by attacking the credibility of speakers belonging to vilified groups, thereby reducing their ability to effectively communicate:[] There are several difficulties with this argument. The first is that it rests on the assumption that freedom of expression includes the right to be believed. I know of no historical or philosophical basis for such a proposition. ... 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 to be believed.

A second difficulty with this argument is that it would justify the suppression of much valuable expression. It is impossible to imagine a vigorous political debate on a contentious issue in which the speakers did not seek to undermine the credibility of the ideas, conclusions and judgment of their opponents. Yet such debate is essential to the maintenance and functioning of our democratic institutions. In support of this argument, it might be asserted that justifiable speech should be confined to rational argument on the issues and should not extend to non-rational attacks on credibility. But who is to decide what is rational argument and what is not? Furthermore, it should be permissible in vigourous debate to go beyond rational arguments on the merits and attack the credibility of one=s opponent. Lack of credibility in the proponent of an idea is an important and justifiable reason for rejecting a position. In short, to suggest that speech which undermines the credibility of speakers belonging to particular groups does not fall within s.2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable. ...

I conclude that statements promoting hatred are not akin to violence or threats of violence, and that the argument that they should for this reason be excluded from the protection of s.2(b) of the Charter should be rejected.

B. The construction arguments

(1) The argument based on s.15 of the Charter

 

The first argument is that the scope of s.2(b) is diminished by s.15 of the Charter. This argument is based on the principle of construction that where possible, the provisions of a statute should be rad together so as to avoid conflict. The guarantee of equality in s.15... is offended by speech which denigrates a particular ethnic or religious group. The competing values reflected by the two sections might therefore be reconciled by informing the content of s.2(b) with the values of s.15. ...

It is important initially to define the nature of the potential conflict between s.2(b) and s.15... . There is no violation of s.15 in the case at bar, since there is no law or state action which puts the guarantee of equality into issue. The right granted by s.15 is the right to be free from inequality and discrimination effected by the state. That right is not violated in the case at bar. The conflict, then is not between rights, but rather between philosophies. ...

[I]t is important to consider the nature of the two guarantees in question. On the one hand, s.2(b) confers on each individual freedom of expression, unconstrained by state regulation or action, and subject only to a possible limitation under s.1. On the other hand, s.15 grants the rights to be free from inequality and discrimination effected by the state. Given that the protection under s.2(b) is aimed at protecting individuals from having their expression infringed by the government, it seems a misapplication of Charter values to thereby limit the scope of that individual guarantee with an argument based on s.15, which is also aimed at circumscribing the power of the state.

I do not mean to suggest that different sections of the Charter are irrelevant to the task of defining the content of individual guarantees. ... In the present case, however, I do not agree that [s.15] should be used to erode the scope of protection provided for an individual=s expression.

This conclusion is supported by a second factor... . The cases where this court has considered the meaning of s.2(b) have expressly rejected the suggestion that certain statements should be denied the protection of the guarantee on the basis of their content. ... The argument based on s.15 is clearly opposed to this principle, as it suggests that protection be denied expression whose content conflicts with the values underlying the s.15 guarantee. ... Assuming such balancing were to be done, the further question would arise of whether it would more appropriately take place under s.1 than under s.2(b). The rejection by the court of narrowing the scope of s.2(b) on the basis of content in cases such as Irwin Toy, the contextual considerations raised by Wilson J. in Edmonton Journal, and consideration of where the burden of proof should lie in restricting rights and freedomsCall these suggest that restrictions on the broad definition of free expression found in s.2(b) may well be more appropriately made under s.1. ...

(2) The argument based on s.27 of the Charter

 

Section 27 states that the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. Similar considerations apply here as applied to the argument based on s.15 of the Charter. ...

(3) The argument based on international law

 

... The international tradition tends to define freedom of expression in a way which accommodates state legislation curtailing hate propaganda, thus precluding any debate about whether such measures infringe freedom of expression, and if so, whether they are justified. I have suggested that this is not the model of the Canadian Charter, which consistent with the pre-Charter quasi-constitutional status accorded to freedom of expression in this country posits a broad and unlimited right of expression under s.2(b), a right which can be cut back only under s.1. ...

Quite apart from this difference in approach, another consideration persuades me that it would be wrong to cut back the scope of s.2(b) on the ground that Canada has signed treaties which are inconsistent with affording protection to racial propaganda.

This argument, like the arguments under ss. 15 and 27 of the Charter, would require cutting down the protection offered by s.2(b)... on the basis of the content of the statements sought to be protected. It would deny certain statements constitutional protection because their content is intended to promote discrimination and hatred of certain groups in society. This court has expressly rejected such a course.

Canada=s international obligations, and the accords negotiated between international governments may well be helpful in placing Charter interpretation in a larger context. Principles agreed upon by free and democratic societies may inform the reading given to certain of its guarantees. It would be wrong, however, to consider these obligations as determinative of or limiting the scope of those guarantees. The provisions of the Charter, though drawing on political and social philosophy shared with other democratic societies, are uniquely Canadian. As a result, considerations may point, as they do in this case, to a conclusion regarding a rights violation which is not necessarily in accord with those international covenants. ...

C. Absence of redeeming value

 

The fundamental premise of the arguments advanced under this head is that only justified or meritorious expression is protected under s.2(b). These arguments take several forms.

The first is the contention that the protection of the wilful promotion of hatred was never within the contemplation of the framers of the Charter and therefore can be criminalized without the necessity of meeting the standard justification of s.1. ...

This argument amounts to saying that the right to free expression enshrined in the Charter must be confined to the ambit of the rules affecting free speech which preceded the Charter. Generally, this court has not taken such a restrictive approach... but has preferred a large and generous interpretation. This is in keeping with the fact that the principles enshrined in the Charter are general and fundamental. ...

Another version of this argument looks to the generally accepted justifications for protecting freedom of speech, such as truth, democracy and self-fulfillment, and asks whether Ahate-mongering@ does anything to further those values.

The first difficulty with this argument is that none of the previous decisions of this court involving free speech have followed such an approach. ...

The argument, moreover, is essentially circular. If one starts from the premise that the speech covered by s.319(2) is dangerous and without value, then it is simple to conclude that none of the commonly offered justifications for protecting freedom of expression are served by it.

Another problem with this approach is the difficulty of determining when speech has redeeming value. In cases such as the present, it may be easy to achieve near-unanimous consensus that the statements contribute nothing positive to our society. But the proposition underlying this argument is not confined to such cases. ... Experience shows that in actual cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not.

Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.

...The objective of s. 319(2) ... is to prevent the promotion of hatred toward identifiable groups within our society. As the Attorney General of Canada puts it, the objective of the legislation is, "among other things, to protect racial, religious and other groups from the wilful promotion of hatred against them, to prevent the spread of hatred and the breakdown of racial and social harmony, and "to prevent the destruction of our multicultural society". These aims are subsumed in the twin values of social harmony and individual dignity.

These are laudable goals and serious ones. The objectives are clearly of a substantial nature. Given the history of racial and religious conflict in the world in the past fifty years, they may be said to be pressing, even though it is not asserted that an emergency exists in Canada. ...

The real question ... is whether the means -- the criminal prohibition of wilfully promoting hatred -- are proportional, ... In approaching the difficult task of determining where the balance lies..., it is important not to be diverted by the offensive content of much of the speech in question.... It is not the statements of Mr. Keegstra ... , but rather the constitutionality of s. 319(2) ... that must be our focus.

Another general consideration relevant to the balancing of values involved in the proportionality test in this case relates peculiarly to the nature of freedom of expression. Freedom of expression is unique among the rights and freedoms guaranteed by the Charter in two ways.

The first way in which freedom of expression may be unique was alluded to earlier.... The right to fully and openly express one's views on social and political issues is fundamental to our democracy and hence to all the other rights and freedoms guaranteed by the Charter. Without free expression, the vigourous debate on policies and values that underlies participatory government is lacking.... [R]estrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship....

A second characteristic peculiar to freedom of expression is that limitations on expression tend to have [] chilling effect.... [I]n weighing the intrusiveness of a limitation on freedom of expression our consideration cannot be confined to those who may ultimately be convicted under the limit, but must extend to those who may be deterred from legitimate expression by uncertainty as to whether they might be convicted.

I make one final point ... [I]t is important to consider not only the proportionality and effectiveness of the particular law in question, but alternative ways of furthering the objective. This is particularly important at stages two (minimum impairment) and three (balancing the infringement against the objective)....

... In my view, it is far from clear that [s. 319(2)] provides an effective way of curbing hatemongers. Indeed, many have suggested it may promote their cause. ...

Not only does the criminal process confer on the accused publicity for his dubious causes -- it may even bring him sympathy. The criminal process is cast as a conflict between the accused and the state, a conflict in which the accused may appear at his most sympathetic. ...

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 the government is trying to suppress it.

Historical evidence also gives reason to be suspicious of the claim that hate propaganda laws contribute to the cause of multiculturalism and equality. ...

Viewed from the point of view of actual effect, the rational connection between s. 319(2) and the goals it promotes may be argued to be tenuous. Certainly it cannot be said that there is a strong and evident connection between the criminalization of hate propaganda and its suppression.

...Two questions are pertinent to [this] inquiry.... The first is whether s. 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The second is whether criminalization of hate mongering may in itself be an excessive response to the problem, given the alternatives. ...

Despite the limitations found in s. 319(2), a strong case can be made that it is overbroad....

The first difficulty lies in the different interpretations which may be placed on the word "hatred."... The wide range of diverse emotions which the word "hatred" is capable of denoting is evident from [a dictionary] definition. Those who defend its use in s. 319(2) ... emphasize one end of this range -- hatred, they say, indicates the most powerful of virulent emotions ... and limiting s. 319(2) to extreme materials. Those who object to its use point to the other end of the range, insisting that "active dislike" is not an emotion for the promotion of which a person should be convicted as a criminal....

It is not only the breadth of the term "hatred" which presents dangers; it is its subjectivity. "Hatred" is proved by inference -- the inference of the jury or the judge who sits as trier of fact -- and inferences are more likely to be drawn when the speech is unpopular. The subjective and emotional nature of the concept of promoting hatred compounds the difficulty of ensuring that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted.

But "hatred" does not stand alone. To convict, it must have been "wilfully promote[d]". ... It is argued that the requirement of "wilful promotion" eliminates from the ambit of s. 319(2) statements which are made for honest purposes such as telling a perceived truth or contributing to a political or social debate. The difficulty with this argument is that those purposes are compatible with the intention (or presumed intention by reason of foreseeability) of promoting hatred. A belief that what one says about a group is true and important to political and social debate is quite compatible with and indeed may inspire an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The result is that people who make statements primarily for non-nefarious reasons may be convicted of wilfully promoting hatred.

The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2).... In effect, the provision makes a crime not only of actually inciting others to hatred, but also of attempting to do so....

Though I regard this breadth as a relevant factor, I would be hesitant to treat it as constitutionally determinative. To view hate propaganda as "victimless" in the absence of any proof that it moved its listeners to hatred is to discount the wrenching impact that it may have on members of the target group themselves. ... Moreover, it is simply not possible to assess with any precision the effects that expression of a particular message will have on all those who are ultimately exposed to it. The process of "proving" that listeners were moved to hatred has a fictitious air about it. These considerations undermine the notion that we can draw a bright line between provisions which are justifiable because they require proof that hatred actually resulted, and provisions which are unjustifiable because they require only an intent to promote hatred.

The breadth of s. 319(2) is narrowed somewhat by the defences. ...

Quite apart from the fact that the onus lies on the accused to prove these defences, it is far from clear that in practice they significantly narrow the ambit of s. 319(2).... The most important defence is truth -- ...[A]s already mentioned, conviction may result for true statements given that the onus of proof lies on the accused. Moreover, the concepts of "truth" and "reasonable belief in truth" may not always be applicable. Statements of opinion may be incapable of being classified as true or false, communicating not facts so much as sentiments and beliefs. Polemic statements frequently do not lend themselves to proof of truth or falsity. As for the defence of reasonable belief, how is a court to evaluate the reasonableness of diverse theories, political or otherwise? The defence of statements in the public interest poses similar problems. How is a court to determine what is in the public interest...?

Not only is the category of speech caught by s. 319(2) defined broadly. The application of the definition of offending speech, i.e., the circumstances in which the offending statements are prohibited, is virtually unlimited. Only private conversations are exempt from state scrutiny. Section 319(2) is calculated to prevent absolutely expression of the offending ideas in any and all public forums through any and all mediums. Speeches are caught. The corner soap-box is no longer open. Books, films and works of art -- all these fall under the censor's scrutiny. ...

The real answer to the debate about whether s. 319(2) is overbroad is provided by the section's track record. Although the section is of relatively recent origin, it has provoked many questionable actions on the part of the authorities. There have been no reported convictions, other than the instant appeals.... Novels such as Leon Uris' pro-Zionist novel, The Haj (1984), face calls for banning[]. Other works, such as Salman Rushdie's Satanic Verses (1988), are stopped at the border .... Films may be temporarily kept out, as happened to a film entitled Nelson Mandela, ordered as an educational film by Ryerson Polytechnical Institute in 1986 []. Arrests are even made for distributing pamphlets containing the words "Yankee Go Home" []. Experience shows that many cases are winnowed out due to prosecutorial discretion and other factors. It shows equally, however, that initially quite a lot of speech is caught by s. 319(2).

Even where investigations are not initiated or prosecutions pursued, the vagueness and subjectivity [of] s. 319(2) ... gives ground for concern that the chilling effect of the law may be substantial. The more vague the language of the prohibition, the greater the danger that right-minded citizens may curtail the range of their expression against the possibility that they may run afoul of the law. The danger here is not so much that the legislation will deter those bent on promoting hatred.... The danger is rather that the legislation may have a chilling effect on legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process.... Novelists may steer clear of controversial characterizations of ethnic characteristics, such as Shakespeare's portrayal of Shylock in The Merchant of Venice. Scientists may well think twice before researching and publishing results of research suggesting difference between ethnic or racial groups. Given the serious consequences of criminal prosecution, it is not entirely speculative to suppose that even political debate on crucial issues such as immigration, educational language rights, foreign ownership and trade may be tempered. ...

This brings me to the second aspect of minimum impairment. ... The procedures and sanctions associated with the criminal law are comparatively severe. ... Moreover, the chilling effect of prohibitions on expression is at its most severe where they are effected by means of the criminal law. ...

Moreover, it is arguable whether criminalization of expression calculated to promote racial hatred is necessary. Other remedies are perhaps more appropriate and more effective.... Human rights legislation, focusing on reparation rather than punishment, has had considerable success....

It is true that the focus of most human rights legislation is acts rather than words. But if it is inappropriate and ineffective to criminalize discriminatory conduct, it must necessarily be unjustifiable to criminalize discriminatory expression falling short of conduct.

Finally, it can be argued that greater precision is required in the criminal law than, for example, in human rights legislation because of the different character of the two types of proceedings. ... I conclude that the criminalization of hate statements does not impair free speech to the minimum extent permitted by its objectives.

I deal first with the significance of the infringement of the constitutionally guaranteed freedom at issue in this case. Viewed from the perspective of our society as a whole, the infringement of the guarantee of freedom of expression before this Court is a serious one. Section 319(2)... does not merely regulate the form or tone of expression -- it strikes directly at its content and at the viewpoints of individuals. It strikes, moreover, at viewpoints in widely diverse domains, whether artistic, social or political....

The consequences ... from the viewpoint of the individual caught within its net are equally serious. ...

I turn then to the other side of the scale and the benefit to be gained by maintenance of the limitation on freedom of expression.... As indicated earlier, there is no question but that the objectives which underlie this legislation are of a most worthy nature. Unfortunately, the claims of gains to be achieved at the cost of the infringement of free speech...are tenuous....

In my opinion, the result is clear. Any questionable benefit of the legislation is outweighed by the significant infringement on the constitutional guarantee of free expression....

Notes and Questions

1. Are you sympathetic to the argument for excluding hate propaganda from s.2(b)? What purpose is served by proceeding to s.1 if the limit is upheld in either case?

2. Dickson C.J. suggested that truthful but hateful expressive activity could justifiably be limited. Are the two mutually exclusive? If not, do you agree that it is justifiable for the government to prohibit true statements which nonetheless have undesirable consequences?

3. Dickson C.J. also expressed skepticism toward the marketplace of ideas and agreed with the Cohen Committee that limits are acceptable because Aemotion displaces reason@ and Aindividuals forsake the good they know@. If this is true of individuals is it also true of governments? In other words, if freedom can be limited because human nature is fallible, is the converse also valid: i.e., that government power should likewise be limited because the government is equally susceptible to emotion and equally fallible?

4. The Court=s methodology in s.2(b) cases has been discussed, supra Chapter II. Do you agree that equality and multiculturalism should prevail over expressive freedom under s.1? Does that conclusion have any basis in the structure, text or history of the Charter? Is it appropriate under branch 1 of Oakes to prefer those values without balancing them against s.2(b)=s interest in protecting expressive freedom?

5. Note, as discussed above in Chapter II, that s.2(b)=s values only enter the s.1 analysis at the proportionality stage of the test. Why is that, and do you think Dickson C.J. made appropriate use of those values to lower the Charter=s protection for expressive freedom?

6. How does McLachlin J.=s analysis differ? Should the Achilling effect@ be a relevant consideration under s.1? If so, how - or where - would it fit into the Oakes test?

7. Note that the following was prosecuted in R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488 (Ont. C.A.):

WAKE UP CANADIANS! YOUR FUTURE IS AT STAKE! Is it your tax dollars that subsidize the activities of the French minority of Essex County? Did you know that the Association of Canadian Francais de l'Ontario has invested several hundreds of thousands of dollars of your tax money in Quebec? And that they are still demanding $5 million more of your tax dollars to build a French language high school? You are subsidizing separatists whether in Quebec or in Essex County. Did you know that those of the French minority who support the building of the French language high school are in fact a subversive group and that most French Canadians of Essex County are opposed to the building of the school? Who will rid us of this subversive group if not ourselves? If we give them a school, what will they demand next ... independent city states? Consider the ethnic problem of the United States and take heed. We must stamp out the subversive element which uses history to justify its freeloading on the taxpayers of Canada, now. The British solved this problem once before with the Acadians, what are we waiting for ...?

R. v. Zundel

[1992] 2 S.C.R. 731

McLachlin J. [LaForest, L'Heureux-Dubé and Sopinka JJ., concurring]

... Section 181 reads:

Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is ... liable to imprisonment for a term not exceeding two years.

 

... The charge arises out of [Ernst Zundel's] publication of a 32-page booklet seemingly entitled Did Six Million Really Die?.... [This booklet] suggests, inter alia, that it has not been established that six million Jewish people were killed before and during World War II and that the Holocaust is a myth perpetrated by a worldwide Jewish conspiracy.

The case comes to this Court after two trials, each of which resulted in a conviction. Although the first conviction was overturned, the Ontario Court of Appeal rejected the appellant's [Charter claim] and sent the matter back for a new trial. This appeal is brought from the conviction on the second trial....

Section 181 dates from the Statute of Westminster in 1275, which introduced the offence De Scandalis Magnatum or Scandalum Magnatum. It provided "that from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm". The criminal offence was enforced by the King's Council, and later by the Court of Star Chamber, until the 17th century when its enforcement was taken over by the common law courts. It had as its primary aim the prevention of "false statements which, in a society dominated by extremely powerful landowners, could threaten the security of the state"....

Although the offence of spreading false news was abolished in England in 1887, and does not survive in the United States, it was enacted in Canada as part of the 1892 Criminal Code. The reason for the offence's retention in Canada is unknown.... Be that as it may, the offence was retained, originally under the rubric of "Seditious Offences" [1892] and more latterly as a species of "Nuisance" [1953-54] ... What is now s. 181 has been judicially considered only three times in Canada, excluding this case....

[T]he Crown, to succeed, must establish beyond a reasonable doubt the following propositions:

1. That the accused published a false statement, tale or news;

2. That the accused knew the statement was false; and

3. That the statement causes or is likely to cause injury or mischief to a public interest.

 

Each of the three elements of the offence ... is capable of giving rise to considerable difficulty of application in the context of a trial. The question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue.... The element of the accused's knowledge of falsity compounds the problem, adding the need to draw a conclusion about the accused's subjective belief as to the truth or falsity of the statements. Finally, the issue of whether a statement causes or is likely to cause injury or mischief to the public interest requires the identification of a public interest and a determination of whether it has been or is likely to be injured. In the case of each of the three elements of the offence, the not inconsiderable epistemological and factual problems are left for resolution by the jury under the rubric of "fact"....

Difficulties were encountered at trial with respect to all three elements of the offence....

One is thus driven to conclude that ... [t]he verdict flowed inevitably from the indisputable fact of the publication of the pamphlet, its contents' divergence from the accepted history of the Holocaust, and the public interest in maintaining racial and religious tolerance. There was little practical possibility of showing that the publication was an expression of opinion, nor of showing that the accused did not know it to be false, nor of showing that it would not cause injury or mischief to a public interest....

[The Charter]

...The purpose of [s.2(b)] is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false [].... Thus the guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be; adapted to this context, it serves to preclude the majority's perception of 'truth' or 'public interest' from smothering the minority's perception.... [A] law which forbids expression of a minority or "false" view on pain of criminal prosecution and imprisonment ... offends the purpose of the guarantee of free expression....

... In determining whether a communication falls under s. 2(b), this Court has consistently refused to take into account the content of the communication....

The respondent argues that the falsity of the publication at issue takes it outside of the purview of s. 2(b).... Two arguments are advanced. The first is that a deliberate lie constitutes an illegitimate "form" of expression, which, like a violent act, is not protected. [That argument was rejected in Keegstra.] The second argument advanced is that the appellant's publication is not protected because it serves none of the values underlying s. 2(b).....

Apart from the fact that acceptance of this argument would require this Court to depart from its view that the content of a statement should not determine whether it falls within s. 2(b), the submission presents two difficulties.... The first stems from the difficulty of concluding categorically that all deliberate lies are entirely unrelated to [s.2(b)'s underlying values]. The second lies in the difficulty of determining the meaning of a statement and whether it is false.

The first [assumes] that deliberate lies can never have value. Exaggeration -- even clear falsification -- may arguably serve useful social purposes linked to the values underlying freedom of expression. A person fighting cruelty against animals may knowingly cite false statistics in pursuit of his or her beliefs and with the purpose of communicating a more fundamental message, e.g., 'cruelty to animals is increasing and must be stopped'. A doctor, in order to persuade people to be inoculated against a burgeoning epidemic, may exaggerate the number or geographical location of persons potentially infected with the virus. An artist, for artistic purposes, may make a statement that a particular society considers both an assertion of fact and a manifestly deliberate lie; consider the case of Salman Rushdie's Satanic Verses....

All of this expression arguably has intrinsic value in fostering political participation and individual self-fulfilment. To accept the proposition that deliberate lies can never fall under s. 2(b) would be to exclude [such] statements ... from the possibility of constitutional protection....

The second difficulty lies in the assumption that we can identify the essence of the communication and determine that it is false with sufficient accuracy to make falsity a fair criterion for denial of constitutional protection....

One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is ... an interactive process.... Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader....

A second problem arises in determining whether the particular meaning assigned to the statement is true or false.... [P]articularly where complex social and historical facts are involved, it may prove exceedingly difficult....

[I]t is the civil action for defamation which constitutes the only other significant branch of the law in which a jury is asked to determine the truth or falsity of a statement. But the difficulties posed by this demand are arguably much less daunting in defamation.... [There] a statement [is] made about a specific living individual. Direct evidence is usually available as to its truth or falsity. Complex social and historical facts are not at stake. And most importantly the consequences of failure to prove truth are civil damages, not the rigorous sanction of criminal conviction and imprisonment.

[I conclude] that the publication here at issue is protected by s. 2(b)....

I turn first to the state's interest in prohibiting the expression here at issue.... In determining the objective of a legislative measure ... the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision. Although the application and interpretation of objectives may vary over time [see, e.g., Butler], new and altogether different purposes should not be invented.... My colleagues say that it is a permissible shift in emphasis that the false news provision was originally focused on the "prevention of deliberate slanderous statements against the great nobles of the realm" and is now said to be concerned with "attacks on religious, racial or ethnic minorities".... But ... [t]o convert s.181 into a provision directed at encouraging racial harmony is to go beyond any permissible shift in emphasis and effectively rewrite the section.

It is argued that this interpretation represents a mere shift in emphasis because the thrust of s. 181 and its predecessors ... disclosed a single goal: "the protection of the public interest from harm".... Yet, all Criminal Code provisions ... have as their basic purpose the protection of the public from harm.... Justification under s. 1 requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter's guarantees....

It is impossible to say with any assurance what Parliament had in mind when it decided, contrary to what had happened in other democracies, to leave s. 181 as part of our criminal law....

The difficulty in assigning an objective to s. 181 lies in two factors: the absence of any documentation explaining why s. 181 was enacted and retained and the absence of any specific purpose disclosed on the face of the provision.... All this stands in sharp contrast to the hate propaganda provision of the Criminal Code at issue in Keegstra.... It may be that s. 181 is capable of serving legitimate purposes. But no objective of pressing and substantial concern has been identified in support of its retention....

Section 2(b)...has as one of its fundamental purposes the protection of the freedom of expression of the minority or disadvantaged.... The proscription of false news was originally intended to protect the mighty and the powerful from discord or slander; there is nothing to suggest any legislative intention to transform s. 181 from a mechanism for the maintenance of the status quo into a device for the protection of "vulnerable social groups".

... [The minority opinion gives no credence to the] lesson (or warning) of history regarding the potential use by the state ... of provisions, such as s. 181, to crush speech which it considers detrimental to its interests.... History has taught us that much of the speech potentially smothered, or at least 'chilled', by state prosecution of the proscribed expression is likely to be the speech of minority or traditionally disadvantaged groups....

In the absence of an objective of sufficient importance ..., the state's interest in suppressing expression ... cannot outweigh the individual's constitutional right of freedom of expression and s. 181 cannot be upheld under s. 1.... But even if one were to attribute [a permissible objective ] to s. 181 ... the Crown's case ... would fail for want of proportionality....

Assuming a rational link between the objective of social harmony and s. 181 of the Criminal Code, the breadth of the section is such that it goes much further than necessary to achieve that aim.... The territory covered by this prohibition can only be described as vast....

The phrase "statement, tale or news", ... obviously encompasses a broad range of historical and social speech, going well beyond what is patent or provable to the senses as a matter of "pure fact".... Nor are the difficulties confined to determining what is a factual assertion as opposed to an expression of opinion.... This makes possible conviction for virtually any statement which does not accord with currently accepted "truths"....

But perhaps the greatest danger of s. 181 lies in the undefined and virtually unlimited reach of the phrase "injury or mischief to a public interest".... It is difficult to see how a broad, undefined phrase such as "public interest" can on its face constitute a restrained, appropriately limited measure which impairs the right infringed to the minimum degree consistent with securing the legislation's objectives....

Cory and Iacobucci JJ. propose to overcome this difficulty by defining the phrase "public interest" in accordance with selected Charter values....[T]heir interpretation focuses upon a select range of Charter values, values which do not include freedom of expression....

The result of my colleagues' redefinition is [that] whenever the Crown can establish that the publication of a false statement is likely seriously to injure the dignity and equality of those whom ss. 15 and 27 of the Charter are intended to protect, the offence is made out. In so doing my colleagues have arguably created a new offence.... The promotion of equality and multiculturalism is a laudable goal, but, with respect, I can see no basis in the history or language of s. 181 to suggest that it is the motivating goal behind its enactment or retention....

Section 181 can be used to inhibit statements which society considers should be inhibited, like those which denigrate vulnerable groups. Its danger, however, lies in the fact that by its broad reach it criminalizes a vast penumbra of other statements merely because they might be thought to constitute a mischief to some public interest, however successive prosecutors and courts may wish to define these terms. The danger is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught. Thus worthy minority groups or individuals may be inhibited from saying what they desire to say for fear that they might be prosecuted.... [T]he overbreadth of s. 181 poses greater danger to minority interest groups worthy of popular support than it offers protection.

These examples illustrate s. 181's fatal flaw -- its overbreadth.... Cory and Iacobucci JJ [argue] that the Crown will always bear a heavy onus in proving all of the elements under s. 181....

I, for one, find cold comfort in [any such assurance].... The whole purpose of enshrining rights...is to afford the individual protection against even the well-intentioned majority. To justify an invasion of a constitutional right on the ground that public authorities can be trusted not to violate it unduly is to undermine the very premise upon which the Charter is predicated....

Not only is s. 181 broad in contextual reach; it is particularly invasive because it chooses the most draconian of sanctions to effect its ends -- ... the criminal law....

It is argued that the expression here at issue is of little value and hence is less deserving of protection ... than expression which directly engages the "core" values associated with freedom of expression.... The short answer ... is that expression which a jury might find to be a deliberate lie likely to injure a public interest ... may well relate to the "core" values protected by the guarantee.... The provision at issue in Keegstra ... was confined to hate propaganda, and hence restricted only speech of low or negative value. That cannot be said of s. 181, which may catch a broad spectrum of speech, much of which may be argued to have value. I add that what is at issue is the value of all speech potentially limited by the provision at issue. In assessing this, the Court must not be diverted by the offensive content of the particular speech [in issue here].

In summary, the broad range of expression caught by s. 181 ... combined with the serious consequences of criminality and imprisonment, makes it impossible to say that s. 181 is appropriately measured and restrained having regard to the evil addressed -- that it effects a "minimal impairment" to use the language of Oakes....

The same considerations lead to the conclusion that the gravity of the restriction on the right of freedom of expression is not proportionate to s. 181's putative objective....

Cory and Iacobucci [joint dissent; Gonthier J., concurring]

Prescribed by Law

... Section 181 cannot be said to be vague. It provides clear guidelines of conduct. The citizen knows that to be at risk under this section, he or she must wilfully publish a false statement knowing it to be false. Further, the publication of those statements must injure or be likely to injure the public interest....

The fact that the term ["public interest"] is undefined by the legislation is of little significance. There are many phrases and words contained in the Criminal Code which have been interpreted by the courts. It is impossible for legislators to foresee and provide for every eventuality or to define every term that is used. Enactments must have some flexibility....

A survey of federal statutes alone reveals that the term "public interest" is mentioned 224 times in 84 federal statutes.... The term does not and cannot have a uniform meaning in each statute. It must be interpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in which it is used.

A "public interest" likely to be harmed as a result of contravention of s. 181 is the public interest in a free and democratic society that is subject to the rule of law. A free society is one built upon reasoned debate in which all its members are entitled to participate. Section 181, including its reference to "public interest", should ... be interpreted in light of Charter values. [] ... A democratic society capable of giving effect to the Charter's guarantees is one which strives toward creating a community committed to equality, liberty and human dignity. The public interest is, therefore, in preserving and promoting these goals.

The term, as it appears in s. 181, should be confined to those rights recognized in the Charter as being fundamental to Canadian democracy. It need not be extended beyond that. As an example, the rights enacted in ss. 7, 15 and 27 of the Charter should be considered in defining a public interest.

... If the wilful publication of statements which are known to be false seriously injures a group identifiable under s. 15, such an act would tear at the very fabric of Canadian society. It follows that the wilful publication of such lies would be contrary to the public interest....

It is only if the deliberate false statements are likely to seriously injure the rights and freedoms contained in the Charter that s. 181 is infringed. This section, therefore, provides sufficient guidance as to the legal consequence of a given course of conduct. It follows that the section cannot be said to be so vague that it is void.

Objective

The aim of s. 181 is to prevent the harm caused by the wilful publication of injurious lies.... This specific objective in turn promotes the public interest in furthering racial, religious and social tolerance. There can be no doubt that there is a pressing and substantial need to protect groups identifiable under s. 15 of the Charter, and therefore society as a whole, from the serious harm that can result from such "expression"....

Similarly, it would be impossible to deny the harm caused by the wilful publication of deliberate lies which are likely to injure the public interest. ... The publication of such lies makes the concept of multiculturalism in a true democracy impossible to attain. These materials do not merely operate to foment discord and hatred, but they do so in an extraordinarily duplicitous manner. By couching their propaganda as the banal product of disinterested research, the purveyors of these works seek to circumvent rather than appeal to the critical faculties of their audience....

Holocaust denial has pernicious effects upon Canadians who suffered, fought and died as a result of the Nazi's campaign of racial bigotry and upon Canadian society as a whole. For Holocaust survivors, it is a deep and grievous denial of the significance of the harm done to them and thus belittles their enormous pain and loss. It deprives others of the opportunity to learn from the lessons of history. To deliberately lie about the indescribable suffering and death inflicted upon the Jews by Hitler is the foulest of falsehoods and the essence of cruelty....

[R]acism is a current and present evil in our country. It is a cancerous growth that is still alive, growing and thriving on ignorance, suspicion, fear and jealousy.

Section 181 provides protection, by criminal sanction, not only to Jewish Canadians but to all vulnerable minority groups and individuals. The salutary nature of this section should be emphasized. It can play a useful and important role in encouraging racial and social tolerance....

The aim of s. 181 has the effect of protecting the vulnerable in society and, as such, is a pressing and substantial concern....

Canada is a signatory to two relevant international instruments. The United Nations International Covenant on Civil and Political Rights [], and the International Convention on the Elimination of All Forms of Racial Discrimination [].... These instruments serve to emphasize the important objective of s. 181 in preventing the harm caused by calculated falsehoods which are likely to injure the public interest in racial and social tolerance....

False statements aimed at perpetuating the unequal participation and treatment of groups already disadvantaged along s. 15 enumerated or analogous grounds do not foster full participation in society but prevent it.... Those in the target group lose the capacity to participate with others and are reduced to some single aspect of their identities. Those in the majority lose the opportunity for meaningful participation in a fully open society when access to the perspectives of minorities is lost.... By prohibiting calculated falsehoods which undermine the equality of target group members, s. 181 enhances the goals of s. 15 of the Charter.

In this connection, it is also important to recognize the significance of s. 27.... Section 27...is not merely the reflection of a fleetingly popular concept. Rather it is a magnificent recognition of the history of Canada and of an essential precept for the achievement of those elusive goals of justice and true equality.... Section 27 strives to ensure that in this land there will be tolerance for all based on a realization of the need to respect the dignity of all....

Viewed in light of Canada's history and the interrelationship of ss. 27 and 15 of the Charter, it can be seen that s. 181 has a very useful and important role to play in Canadian society....

It has been argued that s. 181 is anachronistic and that to attribute to it the purpose of protecting racial and social tolerance is to trigger the invalid shifting purpose doctrine.... It is true the false news provision dates back to 1275. It was submitted that there is really no need at this stage ... to protect the "great persons of the realm", ... and that the provision serves no other purpose. That position cannot be accepted. This section was specifically retained by Parliament in 1955. It has today a very real and pertinent role to play in Canada's multicultural and democratic society.

Over the years the purpose of the predecessors to s. 181 has evolved to extend the protections from harm caused by false speech to vulnerable social groups and therefore to safeguard the public interest against social intolerance and public alarm. It is true that De Scandalis Magnatum was enacted in a feudal society. That society depended for its existence upon the obedience and allegiance of the peasant class to the Sovereign and nobility.... As the nature of the state changed, it was attacks on religious, racial or ethnic minorities that were seen to threaten the integrity of the social fabric. The centuries have passed and forms of government have changed but the enactment continues to have a salutary aim and effect....

Accordingly, there is a strong public interest in preventing the wilful publication of statements known to be false which seriously injure the basic dignity, and thus the security, and equality of others which ss. 7 and 15...strive to provide....

[T]he objective of s. 181 is sufficiently pressing and substantial to justify this limited restriction on freedom of expression....

Proportionality

It is at this stage that there must be an examination of the extent to which the expression at stake in a particular case promotes freedom of expression principles....

A careful examination of the philosophical underpinnings of our commitment to free speech reveals that prohibiting deliberate lies which foment racism is mandated by a principled commitment to fostering free speech values. Liberal theory proposes that the state does not exist to designate and impose a single vision of the good life but to provide a forum in which opposing interests can engage in peaceful and reasoned struggle to articulate social and individual projects. We enshrine freedom of speech because it is an essential feature of humanity to reason and to choose and in order to allow our knowledge and our vision of the good to evolve. The risk of losing a kernel of truth which might lie buried in even the most apparently worthless and venal theory is believed to justify absolute freedom of expression. However, where there is no possibility that speech may be true because even its source has knowledge of its falsity, the arguments against state intervention weaken. When such false speech can be positively demonstrated to undermine democratic values, these arguments fade into oblivion....

The type of "expression" targeted by s. 181 is only tenuously, if at all, connected to the values underlying freedom of expression.... With respect to the search for the truth, ... the publication of deliberate and injurious falsehoods does not contribute to the attainment of truth.... The publication of deliberate lies is obviously the antithesis of the truth. This publication deceives and misleads in a cruel and calculating manner those that seek the truth.

The values of self-fulfilment and human flourishing are also key to the principles underlying s. 2(b). Self-fulfilment and human flourishing can never be achieved by the publication of statements known to be false. Rather the damaging false statements that are prohibited under s. 181 serve only to impede ... the enjoyment of these values by members of society who are the subject of these lies.

The third rationale underlying free speech deals with participation in social and political decision-making.... In our view, intentional and harmful falsehoods repudiate democratic values by denying respect and dignity to certain members of society, and therefore, to the public interest as a whole....

In sum, this analysis suggests that s. 181, at best, limits only that expression which is peripheral to the core rights protected by s. 2(b).... [R]estrictions on expression of this kind will be easier to justify than other infringements....

(ii) Rational Connection

There can be no doubt that the suppression of the publication of deliberate and injurious lies is rationally connected to the aim of s. 181.... Racism tears asunder the bonds which hold a democracy together.... ... Where racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrications, a limitation on the expression of such speech is rationally connected to its eradication.

(iii) Minimal Impairment

Even if rationally connected, the means must impair the freedom as little as possible....

... Under s. 181, the appellant is free to tell all the lies that he wants to in private. He is free ... to publish lies that have an overall beneficial or neutral effect. It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked. This minimal intrusion on the freedom to lie fits into the broad category of Criminal Code offences which punish lying. These offences include, inter alia, the provisions dealing with fraud, forgery, false prospectuses, perjury and defamatory libel....

The appellant [also] argues that history is all interpretation.... It is indeed true that no theory of history can be proved or disproved, although it may be shown to be more or less compelling or comprehensive. However, the appellant seeks to draw complex epistemological theory to the defence of what is really only, at best, the shoddiest of "scholarship" and, at worst pure charlatanism....

Courts deal with the question of truth and falsity of statements on a daily basis. In every case in which the charge is fraud or the making of a false prospectus the court must determine whether false statements have been made. So too can historical "facts" be shown to be true or false in the context of s. 181. Can it be said that France was not occupied by German forces in 1940; or that the Dunkirk evacuation never took place; that the Battle of Britain is nothing but wishful thinking; that London was never bombed.... The falsity of these statements can be proven beyond a reasonable doubt by reference to reliable historical documents.... What can be proven as false statements, such as those published by Zundel which were known by him to be false, can and should come within the purview of s. 181....

As distinguished from works which seek to retell traditional stories from the perspective of minorities and other groups heretofore unheard, the appellant has not adopted a novel perspective, unearthed non-traditional sources or re-interpreted traditional materials....

The appellant submits that he is a modern-day Galileo being sacrificed on the altar of received opinion. Indeed, a Galileo could not be caught under s. 181. Galileo pointed to the apparent movement of the planets and argued, contrary to accepted dogma of church and state, that the earth was not the centre of the heavens but revolved around the sun. His argument was not a deliberate falsification of the facts. Rather, he argued that his theory for explaining the significance of the facts was clearer and more comprehensive.

In contrast, the appellant posits a spurious problem, which cannot be solved by reconciling conflicting interpretations of the same evidence precisely because it is not, in fact, based on the evidence but on misrepresentation or pure fabrication. The conflict between the assertions made by the appellant and those made by orthodox Holocaust historians cannot be resolved through reasoned debate. Orthodox historians point to sources which support their theories; the appellant and other "revisionist" historians point to documents which do not exist or which do not say what they claim they do. The pamphlet Did Six Million Really Die? does not fit with received views of reality because it is not part of reality....

We must re-iterate that the focus of s. 181 is not on the opinions of the appellant.... What is being prohibited is an attempt to win converts to this point of view and to inflict harm against disadvantaged members of society by the most unscrupulous manipulation.

The section will not catch an anthropologist proposing controversial theories which point to arguably true facts but draw erroneous assumptions with racist implications. However objectionable the content, inference or motive, this material would not be caught under s. 181 in the absence of evidence beyond a reasonable doubt of the falsity, and of the accused's knowledge of the falsity, of the basic facts upon which such a theory was based. The theorist who argues, for example, that objective differences in cranial capacity translate into the intellectual superiority of men over women would be met on the field of reasoned debate by rival theorists.... On the other hand, situations such as the case at bar in which the accused deliberately fabricates basic facts in order to support his theories render reasoned debate impossible....

Finally, the...fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The section seeks to discourage the public dissemination of injurious falsehoods.... The deceptive nature of the deliberate publication of false statements of fact may, in certain circumstances, be even more invidious than the publication of hateful opinions which at least expresses the beliefs of the publisher. Thus s. 181 still fulfils an important role in a multicultural and democratic society....

Overall, it would be hard to imagine a measure that would constitute a lesser impairment of a type of expression that is on the extreme periphery of the protected right....

Proportionality Between Effects and Objective

... The type of falsehoods caught by this section serves only to hinder and detract from democratic debate. The impugned provision [] is narrowly defined.... In sum, the prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and social tolerance in a multicultural democracy....

Notes and questions

1. Note that L=Heureux-Dubé J. joined the majority opinion in Keegstra and also in Zundel. Are the two decisions inconsistent, or can they be reconciled?

2. What should the Court focus on in deciding a case of this kind: the limit on expressive freedom and whether it satisfies s.1's principles of justification, including proportionality, or the expressive activity itself, and whether it should be limited because its content is offensive?

3. Which is more problematic from a constitutional perspective: limits on expressive freedom that are based on a definition of hate, or limits that are based on the distinction between true and false?

4. Do you agree with McLachlin J. that s.181 is something of an anachronism which cannot be saved by re-interpretation, or do you find the joint dissent=s re-casting of its objective persuasive?

C. HUMAN RIGHTS LEGISLATION

Canada (Human Rights Commission) v. Taylor

[1990] 3 S.C.R. 892

Dickson C.J. (Wilson, L'Heureux-Dubé and Gonthier JJ., concurring)

Section 13(1) of the Canadian Human Rights Act [] provides that:

13.(1) It is a discriminatory practice for a person or group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

 

Prohibited grounds of discrimination are set out in s. 2 of the Act, and include (though are not restricted to) race, national or ethnic origin, colour and religion.

The primary issue in this appeal is whether s. 13(1), insofar as it restricts the communication of certain telephone messages, violates [s.2(b)] ....

In 1979, the Human Rights Tribunal (hereinafter "the Tribunal") heard a number of complaints lodged under the Canadian Human Rights Act against the two appellants, Mr. John Ross Taylor and the Western Guard Party....

Evidence given at the hearing disclosed that the appellants had instituted a telephone message service in Toronto whereby any member of the public could dial a telephone number and listen to a pre-recorded message of approximately one minute in length. Over a two-year period beginning in mid-1977, thirteen different messages had been disseminated in this fashion, each one having been drafted and recorded by Mr. Taylor, the acknowledged leader of the Western Guard Party. After considering these communications in some detail, the Tribunal summarized the import of their message as follows:

Although many of these messages are difficult to follow, there is a recurring theme. There is a conspiracy which controls and programmes Canadian society; it is difficult to find out the truth about this conspiracy because our books, our schools and our media are controlled by the conspirators. The conspirators cause unemployment and inflation; they weaken us by encouraging perversion, laziness, drug use and race mixing. They become enriched by stealing our property. They have founded communism which is responsible for many of our economic problems such as the postal strike; they continue to control communism and they use it in the furtherance of the conspiracy. The conspirators are Jews.

...Though the service's number was not widely publicized by the appellants, they attempted to make it known by the distribution of cards among individuals and crowds and by slipping these cards under doorways. The cards bore only a maple leaf symbol and an admonition to dial the number. As well, the number was placed in the telephone book opposite a notation which read "White Power Message". ...

[Section 1]

In seeking to prevent the harms caused by hate propaganda, the objective behind s. 13(1) is obviously one of pressing and substantial importance sufficient to warrant some limitation upon the freedom of expression....

Before examining in earnest the proportionality of s. 13(1) to the parliamentary objective, it is important that something be said regarding both the values supporting the free expression guarantee and the nature of the expression at stake in this appeal....

As I hope is evident from [my opinion in Keegstra], it is important to recognize that expressive activities advocating unpopular or discredited positions are not to be accorded reduced constitutional protection as a matter of routine: content-neutrality is still an influential part of free expression doctrine when weighing competing interests under s. 1.... The unusually extreme extent to which the expression at stake in this appeal attacks the s. 2(b) rationale, however, requires that the proportionality analysis be carried out with the recognition that the suppression of hate propaganda does not severely abridge free expression values....

Ordinarily the [discussion of Keegstra] would be sufficient to conclude that a rational connection exists between s. 13(1) and a valid government objective. The intervener Canadian Civil Liberties Association (hereafter "CCLA") has suggested, however, that the words "hatred or contempt" used in s. 13(1) are inherently vague, and that without further definition the section cannot be said to provide a clear and precise indication as to the scope of the discriminatory practice....

In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression....

In sum, the language employed in s. 13(1) ... extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section....

While words in s. 13(1) such as "hatred" and "contempt" can be read consistently with both the intent of Parliament to eradicate hate propaganda and a minimal impairment of s. 2(b) ..., the appellants argue that no sympathetic interpretation can remedy the overbreadth created by reason of the section's lack of an intent requirement. The focus of s. 13(1) is solely upon likely effects, it being irrelevant whether an individual wishes to expose persons to hatred or contempt on the basis of their race or religion. This inconsequentiality of intent is said to impinge seriously and unnecessarily upon the freedom of expression, and indeed in my reasons in Keegstra particular emphasis is placed upon the stringent intent requirement in saving s. 319(2)....

An intent to discriminate is not a precondition of a finding of discrimination under human rights codes.... At the same time, however, it cannot be denied that to ignore intent increases the degree of restriction upon the constitutionally protected freedom of expression. This result flows from the realization that an individual open to condemnation and censure because his or her words may have an unintended effect will be more likely to exercise caution via self-censorship. ...

[I]t seems to me that the important Parliamentary objective behind s. 13(1) can only be achieved by ignoring intent, and therefore the minimal impairment requirement of the Oakes proportionality test is not transgressed.

In coming to this conclusion, I do not mean to say that the purpose of eradicating discrimination in all its forms can justify any degree of impairment upon the freedom of expression, but it is well to remember that the present appeal concerns an infringement of s. 2(b) in the context of a human rights statute. The chill placed upon open expression in such a context will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment....

In sum,... the absence of an intent component in s. 13(1) raises no problem of minimal impairment....

[T]he section evinces yet another feature which is said to give it a fatally broad scope. In contrast to s. 319(2) ..., s. 13(1) provides no defenses ..., and most especially does not contain an exemption for truthful statements.... For the reasons given in [Keegstra], I am of the view that the Charter does not mandate an exception for truthful statements in the context of s. 13(1) ....

A final submission made in furtherance of the view that s. 13(1) impairs the freedom of expression more than is necessary pertains to the nature of the medium targeted by the section. It is contended that, in restricting use of the telephone to disseminate hate propaganda, the provision suppresses expression in instances where the recipient of a communication will likely agree with the content of the message received. Where he or she does not agree with the import of the communication, contact can easily be ended by hanging-up the telephone. In this vein, the CCLA has argued that the Canadian Human Rights Act should apply only to use of the telephone to harass recipients. A related point is that s. 13(1) works to suppress private communications, demonstrating an extensive and serious intrusion upon the privacy of the individual. Finally, it is pointed out that the telephone provides an inexpensive way of communicating with large numbers of people, and that minority groups and civil rights proponents attempting to further legitimate causes may be foiled by s. 13(1)....

I do not disagree with the view that telephone conversations are usually intended to be private; it is surely reasonable for people to expect that these communications will not be intercepted by third persons. Moreover, [in Keegstra] I relied to an extent upon the fact that private communications were not affected. The connection between s. 2(b) and privacy is thus not to be rashly dismissed, and I am open to the view that justifications for abrogating the freedom of expression are less easily envisioned where expressive activity is not intended to be public ...

Simply to label telephone communications as "private", however, does not justify the conclusion that s. 13(1) is overbroad. As was noted by the CCLA, the telephone is a medium which allows numerous organizations to present information and views to a sizable proportion of the public, whether through active calling or the use of recorded messages. While conversations almost always take place on a one-to-one basis, the overall effect of phone campaigns is undeniably public....

... Those who repeatedly communicate messages likely to expose others to racial or religious hatred or contempt are seeking to gain converts to their position. The evidence of the Cohen Committee, ... and expert testimony given before the Tribunals in both Taylor and Nealy, suggest that hate propaganda often works insidiously to spread a message of intolerance and inequality, and that the telephone is particularly suited to this mode of communication....

Moreover, because the Tribunal must be satisfied that the messages are likely to expose persons to hatred or contempt, it may be that even a series of personal calls (by which I mean communications with friends and acquaintances) espousing hate propaganda will not constitute a discriminatory practice within the definition of the section.

I thus think it misleading to conflate the discussion to the point where all one sees is the telephone's position as an apparatus oft-used for private communications, and hence mistakenly to conclude that s. 13(1) suppresses messages which do little to promote the harms caused by hate propaganda....

I do not view the effects of s. 13(1) upon the freedom of expression to be so deleterious as to make intolerable its existence in a free and democratic society.....

McLachlin J. (La Forest and Sopinka JJ. concurring,) dissenting

... I have concluded that s. 13(1) of the Act... cannot survive the proportionality inquiry.... The broad and vague ambit of s. 13(1), unconditioned by any limitations of significance, has as its effect the unnecessary prohibition of a great deal of defensible speech and belies any suggestion of a serious effort to accommodate the important right of freedom of expression....

As in Keegstra, a strong case can be made that s. 13 catches much expression which presents little threat of fostering hatred of groups or discrimination, yet may fall within the traditional justifications for protecting speech. Indeed, the language of s. 13(l) is considerably broader than that used in s. 319(2) .... Where does dislike leave off and hatred or contempt begin? The use of these words in s. 13(l) opens the door to investigations and inquiries for matters which have more to do with dislike than discrimination. The phrase does not assist in sending a clear and precise indication to members of society as to what the limits of impugned speech are. In short, by using such vague, emotive terms without definition, the state necessarily incurs the risk of catching ... expression falling short of hatred.

The breadth of the section is further widened by the absence of any requirement of intent or foreseeability of the actual promotion of hatred or contempt. While this is consistent with the remedial as opposed to punitive focus of human rights legislation, it has the effect of extending the section's application. Any expression "likely to expose" persons to hatred or contempt on a prohibited head of discrimination is caught, regardless of whether the expression was intended or could be foreseen to have this effect. As a result, s. 13(l) may reach speech which is in fact anti-discriminatory.... Expression intended to expose discriminatory practices or demonstrate inequities in the system may equally be caught by s. 13(1). This overbreadth might be more excusable if s. 13(1) required proof of actual harm or discrimination. But in the absence of requirements for either intent or foreseeability of producing such an effect or production of the effect itself, the section is capable of catching conduct which clearly goes beyond the scope of its objects.....

For establishing the necessary balance between promoting harmony and dignity on the one hand, and safeguarding freedom of expression on the other, the process of this Act is exemplary. It is well designed to minimize many of the undesirable aspects of curbing free expression. This approach to curbing hate propaganda is far more appropriate than the all or nothing approach inherent in criminalization of such expression. Coupled with a more narrowly-drafted prohibition, it might well withstand constitutional scrutiny. But the question at this point is whether the system is capable of curing the overbreadth of s. 13(l). I cannot conclude that it is. In my view, it is no answer to the absence of rational connection between the broad sweep of legislation and its objectives, to say that in practice, Commissioners and members of tribunals may choose not to enforce the overbroad aspects of a provision. Rights and freedoms guaranteed by the Charter cannot be left to the administrative discretion of those employed by or retained by the state....

Moreover, the chilling effect of leaving overbroad provisions "on the books" cannot be ignored. While the chilling effect of human rights legislation is likely to be less significant than that of a criminal prohibition, the vagueness of the law means it may well deter more conduct than can legitimately be targeted, given its objectives.

In the end result, I cannot avoid the conclusion s. 13(l) is capable of catching a broad range of expression beyond that which can be justifiably limited in pursuit of the objectives of preventing discrimination and maintaining social harmony and individual dignity. To the extent it catches such expression, it is not carefully tailored to its aims and lacks a rational connection with its objectives....

On the other side of the question, those supporting s. 13(1) point out that it is limited in that it applies to telephone communications only. This, however, does not explain why a less inclusive provision, such as a prohibition against counselling discriminatory practices by telephone, might not suffice equally well. Moreover, the importance of the telephone as a medium of communication should not be underestimated. The telephone is perhaps the least expensive mode by which less advantaged groups or individuals can communicate their ideas and beliefs.... If the aim of the Charter is to secure to all persons, regardless of economic means, a justifiable measure of free expression, then particular care should be taken in drafting legislation suppressing telephonic communication....

Section 13(1) catches speech which is neither intended nor calculated to foster discrimination. It catches speech which may be entirely accurate and truthful; speech which merely seeks to air legitimate group grievances; speech which merely exposes to ridicule; speech which merely communicates the information by telephone to a single person who has the power to hang up the phone if he or she does not like the message; private speech between consenting participants. In short, s. 13(l) seriously overshoots the mark....

[T]he benefits to be secured by s. 13(1) of the Canadian Human Rights Act fall short of outweighing the seriousness of the infringement which the section effects on freedom of expression... .

Notes and Questions

1. Is the harm associated with this message the same as it was in Keegstra? Unlike a public school setting where students have no choice but to stay in class, the listener in these circumstances has complete control over the message: access to the message must be initiated by the listener, and can be terminated at any time by the listener.

2. Should the courts be more lenient, under s.1, in the case of human rights legislation? The Chief Justice stated that the chilling effect is less severe here than in a criminal setting. At the same time, he conceded that the lack of defences and broader scope of definition might prohibit more expressive activity. Is expressive freedom less important in one context than the other?

3. Is s.13(1)=s failure to provide a defence of truth a fatal flaw?

4. As noted above, many of the provincial Human Rights Codes contain provisions similar to that considered in Taylor. For example, s.12 of the Ontario Human Rights Code provides as follows:

12.1 A right under Part I is infringed by a person who publishes or displays before the public or causes a publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

 

(2) Subsection (1) shall not interfere with freedom of expression.

 

The Saskatchewan provision is even broader. It provides as follows:

14(1) No person shall publish or display, or cause or permit to be published or displayed... any notice, sign, symbol, emblem or other representation tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right to which he is they are entitled under the law, or which exposes, or tends to expose, to hatred, ridicules, belittles, or otherwise affronts the dignity of, any person, any class of person or a group of persons because of his or their race, creed, religion, colour, sex, marital status... .

 

Consider the following pre-Charter examples:

In Singer v. Iwasyk and Pennywise Foods Limited (unreported, referred to in Tarnopolsky et al, Discrimination and the Law, 1985, p.10-4) the Respondent operated a drive-in restaurant called "Sambo's Pepper Pot" which displayed a sign showing a caricature of a small person, with black or brown skin colour, wearing a chef's hat and a grass skirt and bearing the words "Sambo's Pepper Pot". Advertisements of the restaurant including match books and automobile stickers depicted the same caricature in association with the phrase "Jez Ain't None Better". The Commission concluded that the representation offended the "dignity and the right not to be so offended, of minority persons, especially of black or brown persons". The Respondents were therefore ordered to remove the caricature from the sign on the restaurant and to cease and desist from publishing the name, symbol or caricature of a "Sambo".

In McKinlay v. Cranfield and Dial Agencies (1980), 1 C.H.R.R. D-246 the Complainant, who was an epileptic, noticed a letter on display in the Respondent's window which was addressed to the Premier of the province, outlining problems with a tenant who was receiving social assistance and with the government department concerned. What the Complainant found objectionable was the following excerpt from the letter:

...I would highly recommend the government of this province hire the handicapped; the situation could only improve if they hired mentally retarded too. Or is this being done already?

 

Although the Board accepted the Respondent's evidence that he honestly believed that the handicapped could do a better job than that being done by present employees of the Department of Social Services, the Board found that the average person "would in fact draw the conclusion that Mr. Cranfield rated the ability of the handicapped as something less than competent". The Board therefore ordered the offending sentences to be deleted.

In Rasheed and Black United Front v. Bramhill (1980), 2 C.H.R.R. D-249 the Respondent wanted to capitalize financially upon certain statements made in the Nova Scotia House of assembly by the Attorney-General to the effect that "there are too many people in Cape Breton like that, with a big mouth and with no mind", by ordering 5,000 buttons on which was depicted a picture of a black female singer, surrounded by the words "I'm a big-mouth Cape Bretoner -- so kiss me". It was held that such a statement might well tend to activate latent prejudice and indirectly affect employment opportunity for blacks. In upholding the complaint, the Commission commented as follows with respect to freedom of expression:

In particular cases, the right of free speech may have to give way to other human rights, such as the right not to be discriminated against, so that although the law infringes the right to freedom of speech, it does not inviolate it and it is, therefore, not unconstitutional.

Ross v. New Brunswick School District No. 15

[1996] 1 S.C.R. 825

La Forest J.

This appeal concerns the obligation imposed upon a public school board pursuant to provincial human rights legislation to provide discrimination-free educational services. It further involves the fundamental freedom of an individual teacher to publicly express his views and to exercise his religious beliefs during his off-duty time. The main issues raised...are whether a school board, which employs a teacher who publicly makes invidiously discriminatory statements, discriminates with respect to services it offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act, [], and whether an order to rectify the discrimination, which seeks to remove the teacher from his teaching position, infringes upon the teacher's freedom of expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of the Charter....

Facts

...On April 21, 1988, the appellant Attis filed a complaint...[alleging] that the School Board, by failing to take appropriate action against the respondent Ross, a teacher...who publicly made racist, discriminatory and bigoted statements, condoned his anti-Jewish views and breached s. 5 of the Act by discriminating against Jewish and other minority students within the educational system served by the School Board.

On September 1, 1988, a human rights board of inquiry was established to investigate the complaint. In the complaint, the appellant Attis... [complained that Ross] made racist and discriminatory statements in published writings and in [T.V.] appearances. In his published writings, which consist of four books or pamphlets published from 1978 to 1989, and three letters to New Brunswick newspapers, Ross...argued that Christian civilization was being undermined and destroyed by an international Jewish conspiracy.

At the time of the hearing before the Board of Inquiry, the respondent did not have a homeroom class, but was a modified resource teacher. He had been employed at the school since September, 1976.... Concerns about the respondent's writings had been expressed publicly since 1978....

The Board of Inquiry found there was no evidence of any direct classroom activity by the respondent on which to base a complaint....However, it also found that his off-duty comments denigrated the faith and belief of Jews. It concluded that his actions violated s. 5(1)...and that there was no reasonable excuse to justify the discriminatory effect of those actions. It further found that the School Board was liable for any breaches...by its teachers....The Board concluded that the School Board discriminated by failing to discipline the respondent meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This, it held, resulted in an atmosphere where anti-Jewish sentiments flourished and where Jewish students were subject to a "poisoned environment" within the School District "which has greatly interfered with the educational services provided" to the appellant Attis and his children [].

....Paragraph (2) of the Board of Inquiry=s Order [] is central to this appeal, and I therefore set it forth at length:

(2) That the School Board:

(a) immediately place [Ross] on a leave of absence without pay for a period of eighteen months;

 

(b) appoint [Ross] to a non-teaching position if [one becomes available]....

 

(c) terminate [Ross'] employment at the end of the eighteen month leave of absence without pay if, in the interim, he has not been offered and accepted a non-teaching position.

 

(d) terminate [Ross'] employment with the School Board immediately if, at any time during the eighteen month leave of absence or if at any time during his employment in a non-teaching position, he:

 

(i) publishes or writes for the purpose of publication, anything that mentions a Jewish or Zionist conspiracy, or attacks followers of the Jewish religion, or

 

(ii) publishes, sells or distributes any of the following publications, directly or indirectly:

- "Web of Deceit"

- "The Real Holocaust (The Attack on Unborn Children and Life Itself)"

- "Spectre of Power "

- "Christianity vs. Judeo-Christianity (The Battle for Truth)"

 

 

Discrimination

...[T]he argument of the appellant Attis is essentially this: the Board was correct in finding that the respondent's continued employment as a teacher constituted discrimination.... His continued employment signalled the School Board's toleration of his anti-Semitic conduct and compromised its ability to provide discrimination-free educational services.

Section 5(1)(b) of the Act provides:

5. (1) No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall

 

(b) discriminate against any person or class of persons with respect to any accommodation, services or facilities available to the public because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation or sex.

The Board of Inquiry found that s. 5 guarantees individuals freedom from discrimination in educational services available to the public....

The respondent does not contest the Board's findings in relation to his off-duty conduct and publications, or in relation to anti-Semitic incidents in the School District. His point is that there is no direct evidence linking these two findings. I am unable to agree....

The Board of Inquiry heard evidence of the nature of the respondent's writings, publications and statements....The Board found, without hesitation, that these publications contain prima facie discriminatory comments against persons of Jewish faith and ancestry. Their effect, in its view, was to denigrate the faith and beliefs of Jews and to incite in Christians contempt for those of the Jewish faith by their assertion that they seek to undermine freedom, democracy and Christian beliefs and values....It also made a finding of fact as to the respondent's notoriety in the community of Moncton, and that continued media coverage of his statements and writings over an extended period contributed to his views having gained notoriety in the community and beyond. Given that these findings are findings of fact supported by the evidence, they are entitled to deference by this Court upon review....

[T]he Board considered how [the substance of the respondent's off-duty conduct, and its notoriety] impacted upon [his] teaching ability. [The Board concluded] that conduct of the type evinced by the facts of this case may undermine the capacity of a teacher to fulfil his or her position....

Whether [Ross's] conduct did in fact adversely impact on the school community must be answered on the basis of the actual environment in the school....[T]wo students in the School Board...described in detail...repeated and continual harassment. [They described] derogatory name calling of Jewish students, carving of swastikas by other students into their own arms and into the desks of Jewish children, drawing of swastikas on blackboards, and general intimidation of Jewish students. The appellant's daughter, Yona Attis, ... gave evidence of one occasion on which she had planned to attend the respondent's school to watch a gymnastic competition, when she was advised that she could not go to the school because that was ". . . where the teacher who hates Jews works". The teacher referred to was identified as the respondent. Yona Attis stated that she attended the competition, but that she felt scared while there, and anxious ". . . that someone was going to come up behind [her] and grab [her] and beat [her] up or something". Further evidence of taunting and intimidation...[included] incidents of shouting and signalling of the "Heil, Hitler" salute. What this evidence discloses is a poisoned educational environment in which Jewish children...are likely to feel isolated and suffer a loss of self-esteem on the basis of their Judaism.

...[T]he testimony of the students did not establish any direct evidence of an impact upon the school district caused by the respondent's off-duty conduct.... Notwithstanding this lack of direct evidence, the Board concluded as follows []:

Although there was no evidence that any of the students making anti-Jewish remarks were directly influenced by any of Malcolm Ross' teachings, given the high degree of publicity surrounding Malcolm Ross' publications it would be reasonable to anticipate that his writings were a factor influencing some discriminatory conduct by the students.

This inference drawn on the basis of what is reasonable to anticipate must be considered in light of whether, in the circumstances, it is reasonable to anticipate that the respondent's off-duty conduct "poisoned" the educational environment in the school board....

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the Board of Inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it.

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community's perception of the ability of the teacher to fulfil such a position of trust and influence, and upon the community's confidence in the public school system as a whole....

By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to "choose which hat they will wear on what occasion" []; teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty....

...I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant.

The next question is whether a finding of discrimination may be supported by an inference on the basis of what is reasonable to anticipate as an effect of the off-duty conduct.... [T]he Board found that [Ross's] off-duty comments impaired his ability to fulfil his teaching position. [The unique importance of the teaching profession] combined with the substance of the respondent's writings and statements [and their widespread publicity] supports the conclusion that this finding of the Board is correct....

The Board found that School District 15 discriminated contrary to s. 5 of the Act. It found the School Board had been reluctant to take disciplinary action against [Ross], ... . In effect, its passivity signalled a silent condonation of, and support for [his] views....

[T]he Board of Inquiry [concluded] that the School Board had discriminated in its failure to take a proactive approach to the controversy surrounding [Ross], the effect of which was to suggest the acceptance of [his] views and of a discriminatory learning environment. The finding of discrimination...is supported by the evidence... .

A finding of discrimination does not end the analysis, however. ....

Freedom of Expression

Section 2(b) must be given a broad, purposive interpretation []. The purpose of the guarantee is to permit free expression in order to promote truth, political and social participation, and self-fulfilment [].

Apart from those rare cases where expression is communicated in a physically violent manner, this Court has held that so long as an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee of freedom of expression []. The scope of constitutional protection of expression is, therefore, very broad. It is not restricted to views shared or accepted by the majority, nor to truthful opinions. Rather, [it] serves to protect the right of the minority to express its view, however unpopular such views may be []....

...On its face, the purpose of the Order is to restrict the respondent's expression; it has a direct effect on the respondent's freedom of expression, and so violates s. 2(b). [The Court also concluded that the Order infringed s. 2(a) of the Charter.]

Section 1 of the Charter

...Ultimately, any attempt to determine whether the Order is a justifiable infringement of the respondent's freedom of expression and of religion must involve a weighing of these essential values and principles, namely the accommodation of a wide variety of beliefs on the one hand and respect for cultural and group identity, and faith in social institutions that enhance the participation of individuals and respect for the inherent dignity of the human person on the other.

The factors to be considered in applying the Oakes test have frequently been reviewed, most recently in [RJR-MacDonald] where both the majority and minority agreed that an approach involving a "formalistic `test' uniformly applicable in all circumstances" must be eschewed. Rather, the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context....

In addressing this contextual analysis, the appellant Human Rights Commission invited us to consider three contexts...,namely, the educational context, the employment context, and the anti-Semitism context. I shall consider these in turn.

In relation to the educational context, the Commission discussed modern educational theory.... The importance of the provision of education by the state, and the Government of New Brunswick's commitment to eradicating discrimination in the public school system must inform our constitutional review of the Order....

There can be no doubt that the attempt to foster equality, respect and tolerance in the Canadian educational system is a laudable goal. But the additional driving factor in this case is the nature of the educational services in question: we are dealing here with the education of young children.... Young children are especially vulnerable to the messages conveyed by their teachers. They are less likely to make an intellectual distinction between comments a teacher makes in the school and those the teacher makes outside the school. They are, therefore, more likely to feel threatened and isolated by a teacher who makes comments that denigrate personal characteristics of a group to which they belong. Furthermore, they are unlikely to distinguish between falsehoods and truth and more likely to accept derogatory views espoused by a teacher....

It is this context that must be invoked when balancing the respondent's freedom to make discriminatory statements against the right of the children in the School Board "to be educated in a school system that is free from bias, prejudice and intolerance" ....

The second context, the employment context, is relevant to the extent that the State, as employer, has a duty to ensure that the fulfilment of public functions is undertaken in a manner that does not undermine public trust and confidence....

More than being solely employees of the State, teachers are also employees of a particular school board. As such, a teacher's freedoms must be balanced against the right of school boards to operate according to their own mandates....[T]his means that...[providing] a school system free from bias, prejudice and intolerance must be balanced against [Ross's] right to manifest his religious beliefs and express his particular views.

The final context the Commission has asked us to consider is the anti-Semitism context. The gist of its submission is expounded in the following passage from its factum:

After Auschwitz it is simply not feasible to consider the constitutional values of freedom of expression and freedom of religion where these are proclaimed to shield anti-Semitic conduct, without contemplating the centrality of that ideology to the scourge of death and destruction which swept across Europe during the era of the Third Reich. ...

 

The Order rendered by the Board was made to remedy the discrimination it found...within the public school system of New Brunswick that targeted Jews, an historically disadvantaged group that has endured persecution on the largest scale. [Ross] must not be permitted to use the Charter as an instrument to "roll back" advances made by Jewish persons against discrimination.

This context relates to one further consideration that must inform a contextual approach under s. 1. It must be recognized that human rights tribunals have played a leading role in the development of the law of discrimination... . This Court should proceed under s. 1 with recognition of the sensitivity of human rights tribunals in this area, and permit such recognition to inform this Court's determination of what constitutes a justifiable infringement of the Charter.

In [RJR-MacDonald], I noted that "the evidentiary requirements under s. 1 will vary substantially depending upon the nature of the legislation and the nature of the right infringed" []. The next consideration under a s. 1 analysis, then, is the nature of the legislation and of the right(s) infringed....In this appeal, the Board's Order...attempts to balance the eradication of discrimination against the rights of other individuals. In fact, in making the Order, the Board carefully considered the effect on [Ross], and determined that it was a necessary consequence in providing relief from the discrimination. In this appeal, the Order made pursuant to the finding of discrimination reflects that balancing. The Board balanced [Ross's] freedoms against the ability of the School Board to provide a discrimination-free environment and against the interests of Jewish students.

The nature of the rights allegedly infringed in this case are of equal significance. In [RJR-MacDonald], I stated that the "core" values of freedom of expression include "the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process" []. This Court has subjected state action limiting such values to "a searching degree of scrutiny" []. This standard of scrutiny is not to be applied in all cases, however, and when the form of expression allegedly impinged lies further from the "core" values of freedom of expression, a lower standard of justification under s. 1 has been applied....

[A]ny restrictions imposed by the Order upon [Ross's] freedom of expression should, in my view, attract a less "searching degree of scrutiny" and be easier to justify under s. 1....This Court has held that there is very little chance that expression that promotes hatred against an identifiable group is true. Such expression silences the views of those in the target group and thereby hinders the free exchange of ideas feeding our search for political truth. Ours is a free society built upon a foundation of diversity of views; it is also a society that seeks to accommodate this diversity to the greatest extent possible....However, to give protection to views that attack and condemn the views, beliefs and practices of others is to undermine the principle that all views deserve equal protection and muzzles the voice of truth.

In relation to the protection of individual autonomy and self-development,...expression that incites contempt for Jewish people on the basis of an "international Jewish conspiracy" hinders the ability of Jewish people to develop a sense of self-identity and belonging....

The final "core" value said to underlie or justify the protection accorded by s. 2(b) is participation in the democratic process. [Ross's] expression...impedes meaningful participation in social and political decision-making by Jews, an end wholly antithetical to the democratic process. The expression sought to be protected in this case is...at best tenuously connected to freedom of expression values....

...Based upon the jurisprudence, Canada's international obligations and the values constitutionally entrenched, the objective of the impugned Order is clearly "pressing and substantial"....

Rational Connection

...[T]he Act in question is conciliatory in nature and makes no provision for criminal sanctions. It is, therefore, well suited to encourage reform of invidious discrimination....

...In order to establish a rational connection between the impugned measure and its objective, scientific evidence need not be established....In this case, ... the Board found it "reasonable to anticipate" that there was a causal relationship between the respondent's conduct and the harm -- the poisoned educational environment....The reason that it is possible to "reasonably anticipate" the causal relationship...is because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. It is thus necessary to remove the respondent from his teaching position to ensure that no influence of this kind is exerted by him upon his students and to ensure that the educational services are discrimination-free. The Order seeks to remove the respondent from his teaching position through clauses 2(a), (b) and (c). These clauses are rationally connected to the objective of the Order....

Minimal Impairment

...[In considering alternatives], the Board considered the alternatives available to remedy the discrimination. It concluded that the removal of [Ross] from the classroom was "the only viable solution" []....The Board also rejected the exclusion of Jewish children from [Ross's] class or school, emphasizing the importance of accessibility to schools within a public school system. Finally, it concluded that the situation could not be dealt with through monetary compensation to Attis for pain and suffering....

...The Order, in clauses 2(a), (b) and (c), was carefully tailored to accomplish its specific objective....Any punitive effect is merely incidental. In my view, clauses 2(a), (b) and (c) minimally impair the respondent's freedom of expression and freedom of religion. In relation to clause 2(d), however, I arrive at a different conclusion....

It may be that the continued presence of the respondent in the School Board produces a residual poisoned effect, even after he is removed from a teaching position.... Given [Ross's] high profile and long teaching career, I acknowledge that the problem in the School District could remain for some time. However, the evidence does not support the conclusion that the residual poisoned effect would last indefinitely once Ross has been placed in a non-teaching role. For that reason, clause 2(d) which imposes a permanent ban does not minimally impair [Ross's] constitutional freedoms....

Proportionality Between Effects of Order and Objective

The deleterious effects of clauses 2(a), (b) and (c) of the Order upon [Ross's] freedom of expression and freedom of religion are limited to the extent necessary to the attainment of their purpose....In my view, the objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on [Ross] produced by these clauses....

With respect to clause 2(d) of the Order, this is an appropriate case in which to apply severance....In this case, clause 2(d) is not so inextricably bound up with the valid clauses in 2(a), (b) and (c) that what remains will not independently survive. Thus, clause 2(d) will be severed...on the basis that it does not constitute a justifiable infringement of the Charter....

Notes and Questions

1. Note the findings of fact in this case: there was no evidence that Ross engaged in these activities at school, and no evidence that his off-duty activities were related to discriminatory conduct by other students. At what point does the connection between cause and effect become too remote?

2. Will the Court=s opinion in this case have a chilling effect on teachers and others in a fiduciary or custodial relationship? Did the Court consider its consequences for other kinds of expressive activity that is legitimate, despite being unpopular or controversial?

HUMAN RIGHTS AMENDMENT ACT, 1993

S.B.C. c.27

[Statutes of British Columbia 1993]

Assented to June 30, 1993

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1. The definition of Adiscrimination@ in section 1 of the Human Rights Act, S.B.C. 1984, c.22, is amended by adding A2,@ after Asection@.

 

2. Section 2 is repealed and the following substituted:

 

Discriminatory publication

2. (1) No person shall publish, issue or display or cause to be published, issued or displayed any statement, publication, notice, sign, symbol, emblem or other representation that

 

(a) indicates a discrimination or an intention to discriminate against a person or a group or class of persons, or

 

(b) is likely to expose a person or a group or class of persons to hatred or contempt

 

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

 

(2) Subsection (1) does not apply to private communication or to a communication intended to be private.

 

 

Notes and Questions

1. This legislation is at issue in the complaint against Doug Collins, a Vancouver journalist who has been accused of racism. Clippings will be made available in class. One question that arises here is whether it is appropriate to enforce a provision of this kind against a member of the press. Should different considerations apply where freedom of the press is at stake?

D. THE FIRST AMENDMENT

Beauharnais v. Illinois

343 U.S. 250 (1952)

Frankfurter, J.

The petitioner was convicted ... of violating ' 224a of the Illinois Criminal Code, [which prohibited any publication or exhibition that portrayed depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots...]

... [Beauharnais's] leaflet [set] forth a petition calling on the Mayor and City Council of Chicago "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro..." Below was a call for "One million self respecting white people in Chicago to unite..." with the statement added that "If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions ... rapes, robberies, knives, guns and marijuana of the negro, surely will." This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.

... Beauharnais was president of the White Circle League; [] at a meeting on January 6, 1950, he passed out bundles of the lithographs in question ... and the leaflets were in fact distributed ... in accordance with his plan and instructions....

Libel of an individual was a common-law crime.... Indeed, at common law, truth or good motives was no defense.... Today, every American jurisdiction ... punish[es] libels directed at individuals....

No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether [the state can punish libels] directed at designated collectivities and flagrantly disseminated.... [I]f an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group....

Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community.... Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. In many of these outbreaks, utterances of the character here in question ... played a significant part. The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants.... Nine years earlier, ... the first northern race riot [] cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action.... A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919.... In the face of this history, ... we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups....

It may be argued ... that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society ... That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts ...

Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group [by analogy to trade unions] ... It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority ... for us to deny that the Illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups....

We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law.... Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled....

As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made "with good motives and for justifiable ends."...

Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary ... to consider the issues behind the phrase "clear and present danger." Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.

Black, J., dissenting (Douglas, J., concurring)

The Court's holding here and the constitutional doctrine behind it leave [First Amendment rights] almost completely at the mercy of [the state].... [W]e are cautioned that state legislatures must be left free to "experiment" and to make "legislative" judgments. We are told that mistakes may be made during the legislative process of curbing public opinion.... Consolation can be sought and must be found in the philosophical reflection that state legislative error in stifling speech and press "is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues." My own belief is that no legislature is charged with the duty or vested with the power to decide what public issues Americans can discuss. In a free country that is the individual's choice, not the state's. State experimentation in curbing freedom of expression is startling and frightening doctrine in a country dedicated to self-government by its people. I reject the holding that either state or nation can punish people for having their say in matters of public concern....

However tagged, the Illinois law is not that criminal libel which has been "defined, limited and constitutionally recognized time out of mind." For as "constitutionally recognized" that crime has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel.... has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. ...

No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais ... would probably be given a hero's reception in many other localities... Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies. ...

Reed, J., dissenting (Douglas, J., concurring)

... [T]he Court speaks at length of the constitutional power of a state to pass group libel laws.... What is under discussion is ... words of such ambiguous meaning and uncertain connotation as "virtue," "derision," and "obloquy."...

Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction.

These words - "virtue," "derision," and "obloquy" - have neither general nor special meanings well enough known to apprise those within their reach as to limitations on speech. [ ] ... Does the Bill of rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not.... The conviction should be reversed.

Douglas J., dissenting

... My view is that if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster. ...

Jackson, J., dissenting

... In this case, neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these. Even though no individuals were named or described as targets of this pamphlet, if it resulted in a riot or caused injury to any individual Negro, such as being refused living quarters in a particular section, house or apartment, or being refused employment, certainly there would be no constitutional obstacle to imposing civil or criminal liability for actual results. But in this case no actual violence and no specific injury was charged or proved.

The leaflet was simply held punishable as criminal libel per se irrespective of its actual or probable consequences....

Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the "clear and present danger" test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis of probabilities....

Notes and Comments

1. Frankfurter J. analogizes the Illinois law in question to that of criminal libel, arguing that statements aimed at individuals may be criminally punished and that similar principles ought to apply to statements aimed at defaming groups. Are there principled distinctions that can be drawn between statements aimed at individuals and groups?

2. Douglas J. and Jackson J. argue that the law can only be justified if it is limited to situations in which the publications create a "clear and present danger" of breaches of the peace or injury to persons or groups. Is this an appropriate test? What are the difficulties inherent to such an approach?

3. In Garrison v. Louisiana, 379 U.S. 64 (1964), the Supreme Court appeared to modify its position and found that some libelous statements that were caught by state criminal libel statutes did indeed come within the realm of constitutionally protected free speech. As a result of that decision, some American writers considered that the Beauharnais decision had been placed in serious doubt. E.T. Markus, "Group Defamation And Individual Actions: A New Look At An Old Rule" (1983), 71 Cal. L. Rev. 1532 at p. 1547:

...[C]riminal defamation laws are virtually non-existent in modern criminal codes. But even if such statutes exist and are constitutional, no group libel is actionable under them unless it presents a "clear and present danger" of causing violence. It is thus evident that if criminal actions for group defamation can be maintained at all, it will only be permitted under a very limited set of circumstances.

 

Further doubt was cast on the principle set out in Beauharnais by the Supreme Court in New York Times v. Sullivan, supra. More recently the Supreme Court refused to review the Seventh Circuit's decision in the Skokie cases (Smith v. Collin, 439 U.S. 916). Justice Blackmun, joined by Justice White, dissented, and urged that certiorari be granted "in order to resolve any possible conflict that may exist between the rulings of the Seventh Circuit here and Beauharnais." The St. Paul case which follows is the United States Supreme Court's latest foray into this area.

R.A.V. v. St. Paul

112 S. Ct. 2538 (1992)

Scalia J. (Rehnquist C.J., Kennedy, Souter, and Thomas concurring)

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely-made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance,[] which provides:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

 

Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment. ...

The First Amendment generally prevents government from proscribing speech, [] or even expressive conduct, [] because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. [] From 1791 to the present, however, our society ... has permitted restrictions upon the content of speech in a few limited areas, which 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 interest in order and morality." [Chaplinsky] ... Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation [] and for obscenity [] but a limited categorical approach has remained an important part of our First Amendment jurisprudence. ...

Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. []

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words-odious racial epithets, for example-would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender-aspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents. One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. ...

[] Finally, St. Paul and its amici [claim] that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the "danger of censorship" presented by a facially content-based statute ... requires that that weapon be employed only where it is "necessary to serve the asserted [compelling] interest" []. The existence of adequate content-neutral alternatives thus "undercut[s] significantly" any defense of such a statute [] ....

The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids....

Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. ...

White J. [Blackmun and O'Connor JJ., concurring; Stevens J. joining, except as to I-A].

... Although I disagree with the Court's analysis, I do agree with its conclusion: The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds. We have emphasized time and again that overbreadth doctrine is an exception to the established principle that ... [a] defendant being prosecuted for speech or expressive conduct may challenge the law on its face if it reaches protected expression, even when that person's activities are not protected by the First Amendment. This is because "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted."[]

... Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that-however repugnant-is shielded by the First Amendment.

In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky-words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace."[] However, the Minnesota court was far from clear in identifying the "injur[ies]" inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized ... that "the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias."[] I therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that "by its very utterance" causes "anger, alarm or resentment."

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.[]

In the First Amendment context, "[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application."[] The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment.[] The ordinance is therefore fatally overbroad and invalid on its face. ...

Stevens J. (White and Blackmun J., concurring - Blackmun only as to I.)

... Not all content-based regulations are alike; our decisions clearly recognize that some content-based restrictions raise more constitutional questions than others....

... the scope of protection provided expressive activity depends in part upon its content and character. We have long recognized that when government regulates political speech or "the expression of editorial opinion on matters of public importance,"[] "First Amendment protectio[n] is 'at its zenith." '[] In comparison, we have recognized that "commercial speech receives a limited form of First Amendment protection," [], and that "society's interest in protecting [sexually explicit films] is of a wholly different, and lesser magnitude than [its] interest in untrammeled political debate."[] The character of expressive activity also weighs in our consideration of its constitutional status. As we have frequently noted, "[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word."[] ...

... Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral."

In applying this analysis to the St. Paul ordinance ..., the ordinance bars only low-value speech, namely, fighting words [and it] regulates "expressive conduct [rather] than ... the written or spoken word."[]

Looking to the context of the regulated activity, it is again significant that the statute (by hypothesis) regulates only fighting words. Whether words are fighting words is determined in part by their context. Fighting words are not words that merely cause offense; fighting words must be directed at individuals so as to "by their very utterance inflict injury." By hypothesis, then, the St. Paul ordinance restricts speech in confrontational and potentially violent situations. The case at hand is illustrative. The cross- burning in this case-directed as it was to a single African-American family trapped in their home-was nothing more than a crude form of physical intimidation. That this cross-burning sends a message of racial hostility does not automatically endow it with complete constitutional protection.

Significantly, the St. Paul ordinance regulates speech not on the basis of its subject matter or the viewpoint expressed, but rather on the basis of the harm the speech causes. In this regard, the Court fundamentally misreads the St. Paul ordinance. The Court describes the St. Paul ordinance as regulating expression addressed to one of [several] specified disfavored topics," [] as policing disfavored subjects,"[] and as prohibit[ing] ... speech solely on the basis of the subjects the speech addresses."[] ... The ordinance... criminalizes expression that one knows ... [by its very utterance inflicts injury on] others on the basis of race, color, creed, religion or gender."...

Moreover, even if the St. Paul ordinance did regulate fighting words based on its subject matter, such a regulation would, in my opinion, be constitutional. As noted above, subject-matter based regulations on commercial speech are widespread and largely unproblematic. As we have long recognized, subject- matter regulations generally do not raise the same concerns of government censorship and the distortion of public discourse presented by viewpoint regulations. Thus, in upholding subject-matter regulations we have carefully noted that viewpoint-based discrimination was not implicated....

Finally, it is noteworthy that the St. Paul ordinance is... quite narrow. The St. Paul ordinance does not ban all "hate speech," nor does it ban, say, all cross-burnings or all swastika displays. Rather it only bans a subcategory of the already narrow category of fighting words. Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial, religious, and gender equality. ... Petitioner is free to burn a cross to announce a rally or to express his views about racial supremacy, he may do so on private property or public land, at day or at night, so long as the burning is not so threatening and so directed at an individual as to "by its very [execution] inflict injury." Such a limited proscription scarcely offends the First Amendment.

The St. Paul ordinance is not an unconstitutional content-based regulation of speech. Thus, were the ordinance not overbroad, I would vote to uphold it.

Notes and Questions

1. It is important to note that the Court was unanimous that the ordinance in question was fatally overbroad and thus unconstitutional on its face. The disagreement revolved around the proper interpretation of the Chaplinsky exclusion of certain categories of speech from First Amendment protection. The majority took the view that content-based exclusions within excluded categories were unconstitutional. White J.'s was that if the whole category could be banned than a subset within the category could also be banned. Stevens J. rejected the whole notion of water-tight categories and adopted a test that looked at a whole variety of factors. With whom do you agree?

2. How would the U.S. Supreme Court have analyzed the hate propaganda statute at issue in Keegstra?

113 S.Ct. 2194 (1993)

Rehnquist C.J.

Respondent=s sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim=s race....

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture AMississippi Burning,@ in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: A>Do you all feel hyped up to move on some white people?=@ [] Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: A>You all want to fuck somebody up? There goes a white boy; go get him.=@ Mitchell counted to three and pointed in the boy=s direction. The group ran towards the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days. After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated battery. ... That offense ordinarily carries a maximum sentence of two years= imprisonment.[] But because the jury found that Mitchell had intentionally selected his victim because of the boy=s race, the maximum sentence for Mitchell=s offense was increased to seven years []. That provision enhances the maximum penalty for an offense whenever the defendant A[i]ntentionally selects the person against whom the crime ... is committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person....@

... The Supreme Court [of Wisconsin] held that the statute Aviolates the First Amendment directly by punishing what the legislature has deemed to be offensive thought.[] It rejected the State=s contention Athat the statute punishes only the conduct of intentional selection of a victim.@ []

The Supreme Court also held that the penalty-enhancement statute was unconstitutionally overbroad....

The State argues that the statute does not punish bigoted thought ... but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell=s First Amendment challenge. To be sure, our cases reject the Aview that an apparently limitless variety of conduct can be labelled >speech= .... Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.

But the fact remains that under the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained.... Because the only reason for the enhancement is the defendant=s discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders= bigoted beliefs...

...[A] defendant=s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.[] In Dawson, the State introduced evidence at a capital- sentencing hearing that the defendant was a member of a white supremacist prison gang. Because Athe evidence proved nothing more than [the defendant=s abstract beliefs,@ we held that its admission violated the defendant=s First Amendment Rights.

In so holding, however, we emphasized that Athe Constitution does not erect a per se barrier to the admission of evidence concerning one=s belief and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.@...

Nothing in our decision last Term in R.A.V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance [that] violated the rule against content-based discrimination.[]

But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., Aspeech@ or Amessages,@)[] the statute in this case is aimed at conduct unprotected by the First Amendment.

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.... The State=s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders= beliefs or biases....

Finally, there remains to be considered Mitchell=s argument that the Wisconsin statute is unconstitutionally overbroad because of its Achilling effect@ on free speech....

The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional Aoverbreadth@ cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim=s protected status, thus qualifying him for penalty-enhancement.... This is simply too speculative a hypothesis to support Mitchell=s overbreadth claim.

For the foregoing reasons, we hold that Mitchell=s First Amendment rights were not violated by the application of the Wisconsin penalty-enhancement provision in sentencing him....

Village of Skokie v. National Socialist Party of America

366 N.E. (2d) 436 (1977) (Ill. App. Ct.)

Per Curiam:

Plaintiff, village of Skokie, [sought] an injunction prohibiting defendants, the [Nazis] and certain individual officers and members of the Party, from engaging in various activities in the village on May 1 ...

The village of Skokie contains a population of approximately 70,000 persons, of whom approximately 40,500 are of the Jewish religion, Jewish ancestry, or both. Included within the Jewish population are hundreds of persons who are survivors of Nazi concentration camps and many thousands whose families and close relatives were murdered by the Nazis. A large percentage of the Jewish population of Skokie is organized into groups and organizations. ... The complaint further alleged the nature of defendant Party's purpose, and stated that the "uniform of the [Nazis] consists of the storm trooper uniform of the German Nazi Party embellished with the Nazi swastika. " It is alleged that on March 20, the village police chief was informed by defendant Collin of defendants' intention to march on the village's sidewalks on May 1. As a result of publicity from the news media and early morning phone calls purportedly made by members of the defendant Party to Skokie residents whose names indicated the probability of their Jewish faith or ancestry [] it was common knowledge in the village, ..., that the defendant Party intended to march in Skokie on May Day. ...

Defendants filed a motion to dismiss [which] referred to an affidavit of one of the individual defendants appended thereto.

The affidavit stated that the affiant has been a leader of the defendant Party for seven years and has propounded the Party's platform by peaceable public assemblies, parades and speechmaking in the Chicago area. About March 20, 1977, the affiant wrote to Skokie officials stating his intention to hold a peaceable public assembly of the defendant Party and its supporters in Skokie on May 1. The purpose of the assembly was to protest a Skokie Park District requirement for the posting of a $350,000 policy of insurance prior to the use of Skokie parks. The letter also stated that the assembly would take place in early afternoon without obstruction of traffic and that demonstrators would obey all laws and would march on the sidewalk in single file.

The affidavit also stated that the assembly would consist of 30 to 50 demonstrators who would conduct a picket line, marching in single file in front of the Skokie Village Hall and that demonstrators would wear their uniforms including a swastika armband. Demonstrators would carry placards and banners containing slogans such as "Free Speech For The White Man." The affiant had no plans to distribute handbills at this assembly.

The affidavit also stated that affiant and members of the Nazi Party would not make derogatory public statements directed to any ethnic or religious group, they all intend to cooperate with reasonable police instructions and that affiant knows of no member of the defendant Party who has made telephone calls to or conducted a telephone campaign to persons of Jewish faith. ...

The circuit court of Cook County conducted a hearing on a motion by plaintiff for a preliminary injunction. ... A resident of Skokie, an officer in several Jewish organizations, testified that he learned of the planned demonstration from the newspapers. As a result, meetings of some 15 to 18 Jewish organizations, within Skokie and surrounding areas, were called, and a counterdemonstration was scheduled for the same day as the demonstration planned by defendants. The witness estimated that some 12,000 to 15,000 people were expected to participate. In the opinion of the witness, this counterdemonstration would be peaceful if defendants did not appear. However, if they did appear, the outrage of the participants might not be controllable. The witness testified that other counterdemonstrations were planned by other groups.

Skokie introduced other opinion evidence that bloodshed would occur if the defendants demonstrated as planned. The mayor of the village of Skokie testified regarding his opinion, formed after discussion with leaders of community and religious groups, that if the march or demonstration by defendants took place, an uncontrollably violent situation would develop. ...

After hearing arguments of counsel, the trial court [granted an injunction.] ...

[A] prior restraint upon first amendment rights bears a heavy presumption against its constitutional validity. [ ] The question before the court is whether plaintiff, village of Skokie, has met its heavy burden of showing justification for the imposition of the circuit court's prior restraint upon defendants' rights to freedom of speech and public assembly.

Our first determination must be the scope of the injunction order, which is somewhat puzzling. For ease in discussion, Part A of the order enjoins defendants from marching, walking, or parading in the uniform of the [Nazis]. Part B enjoins them from marching, walking, parading, or otherwise displaying the swastika on or off their persons. Part C enjoins defendants from distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry, or hatred against persons of any faith or ancestry, race or religion.

[The Court reviewed Part A of the injunction which prohibited parading in the Nazi uniform and held that it was unconstitutional.]

... The third issue on appeal is whether the plaintiff has overcome the presumptive invalidity of the prior restraint on defendants' "marching, walking or parading or otherwise displaying the swastika on or off their person,".... Since the display of the swastika is an expression of defendants' ideas, however odious and repulsive to most members of our society, it will generally be considered protected speech unless it falls within the exceptions discussed in connection with the wearing of the uniform. There is no showing that the display or wearing of the swastika will incite anyone to immediately commit mass murder in furtherance of the aims of the German Nazi Party, or to commit any unlawful act in furtherance of the goals of the defendant Party. Brandenburg v. Ohio [ ].

The original complaint ... alleges that by reason of the ethnic and religious composition of the village and the particular circumstances of this case, the public display of the swastika by defendants will incite large numbers of Skokie residents to violence and retaliation....

One Skokie resident who was a survivor of German concentration camps testified that to him, the swastika is a symbol that his closest family was killed by the Nazis and that he presently fears his death and the death of his children at the hands of those displaying the swastika. He feels strongly about the defendants and their swastika and does not know if he can control himself should he see a swastika in the village where he lives. By implication, a great many of the other 5000 to 7000 survivors of the holocaust who reside in Skokie may not be able to control themselves under similar circumstances. The mayor of the plaintiff village (who testified that he is a Roman Catholic) stated at the hearing that there was a "terrible feeling of unrest regarding the parading of the swastika in the Village of Skokie, a terrible feeling expressed by people in words that they should not have to tolerate this type of demonstration, in view of their history as a people." The legal question, therefore, is whether the display of the swastika in the village of Skokie, under the circumstances of this case, would constitute "fighting words."

Since Chaplinsky v. New Hampshire, [] the fighting words exception has been well established in our law and is a viable rule, but it has been noted that Chaplinsky has been significantly limited by cases which hold protected the peaceful expression of views which stirs people to anger because of the content of the expression, or perhaps of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.[] ...

It has been somewhat unclear [ ] whether anti-Semitic or other similar derogatory statements may be considered as fighting words when intentionally delivered to and heard by the reviled party. There is a recent clue, however, in ... Cohen v. California.

No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction....

 

As stated earlier, Cohen v. California concisely stated the Chaplinsky fighting words test as follows:

[T]hose personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. 403 U.S. at 20 [ ].

 

As in Cohen, we shall determine whether the test has been subjectively and objectively satisfied.

The evidence conclusively shows that at least one resident of Skokie considered the swastika to be a personally abusive epithet which was, in light of his personal history, inherently likely to provoke a violent reaction in him if the swastika were intentionally displayed by defendants in the village of Skokie. Other evidence shows by implication that similar or identical feelings were shared by thousands of other residents of the village of Skokie. In Cohen v. California, it is stated: "We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. " [ ]. In the instant case, the evidence shows precisely that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with the display of the swastika. We feel that the subjective portion of the fighting words test has been satisfied.

The objective portion of the fighting words test follows. Would the ordinary citizen be provoked to violent reaction? We cannot say more than the evidence shows that the average Jewish resident of the village of Skokie would be provoked.... If the swastika would naturally offend thousands of Jewish persons in Skokie, then it must be said that it would offend all those who respect the honestly held faith of their fellows, including the ordinary citizen.

The remaining portion of the objective test is whether the swastika, as a matter of common knowledge, is inherently likely to provoke violent reactions among those of the Jewish persuasion or ancestry if brought in close proximity to their homes or places of worship ....

The swastika is a symbol which ... is inherently likely to provoke violent reaction among those of the Jewish persuasion or ancestry when intentionally brought in close proximity to their homes and places of worship. The swastika is a personal affront to every member of the Jewish faith.... This is especially true for the thousands of Skokie residents who personally survived the holocaust of the Third Reich.... So too, the tens of thousands of Skokie's Jewish residents must feel gross revulsion for the swastika and would immediately respond to the personally abusive epithets slung their way in the form of the defendants' chosen symbol, the swastika. The epithets of racial and religious hatred are not protected speech [], and we find that the village of Skokie has met its heavy burden of justifying the prior restraint imposed upon the defendants' planned wearing and display of the swastika. So that there should be no confusion, Part B of the injunction order, dealing with the swastika, is modified to read: "Intentionally displaying the swastika on or off their persons, in the course of a demonstration, march, or parade within the Village of Skokie." ...

The fourth issue is whether plaintiff has overcome the presumptive invalidity of the prior restraint imposed in Part C of the injunction order, which enjoins defendants from "distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion." The evidence does not show that defendants intend to engage in any such communications. In fact, the evidence discloses the contrary, that such messages would not be included within the scope of the intended demonstration [and] plaintiff has not shown a need for Part C ... Part C of the order is reversed ....

On Appeal to the Supreme Court of Illinois

373 N.E. 2d 21 (1978) (S.Ct. I11.)

Per Curiam:

... In defining the constitutional rights of the parties who come before this court, we are, of course, bound by the pronouncements of the United States Supreme Court.... The decisions of that court, particularly Cohen v. California [] in our opinion compel us to permit the demonstration as proposed, including display of the swastika.

"It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers" [] and it is entirely clear that the wearing of distinctive clothing can be symbolic expression of a thought or philosophy. The symbolic expression of thought falls within the free speech clause of the first amendment [ ], and the plaintiff village has the heavy burden of justifying the imposition of a prior restraint upon defendants' right to freedom of speech [ ].

The village of Skokie seeks to meet this burden by application of the "fighting words" doctrine first enunciated in Chaplinsky v. New Hampshire [] .... In Cohen the Supreme Court restated the description of fighting words as "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. " [] Plaintiff urges, and the appellate court has held, that the exhibition of the Nazi symbol, the swastika, addresses to ordinary citizens a message which is tantamount to fighting-words. Plaintiff further asks this court to extend Chaplinsky, which upheld a statute punishing the use of such words, and hold that the fighting words doctrine permits a prior restraint on defendants' symbolic speech. In our judgment we are precluded from doing so ....

The display of the swastika, as offensive to the principles of a free nation as the memories it recalls may be, is symbolic political speech intended to convey to the public the beliefs of those who display it. It does not, in our opinion, fall within the definition of "fighting words," and that doctrine cannot be used here to overcome the heavy presumption against the constitutional validity of a prior restraint.

Nor can we find that the swastika, while not representing fighting words, is nevertheless so offensive and peace threatening to the public that its display can be enjoined. We do not doubt that the sight of this symbol is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display. Yet it is entirely clear that this factor does not justify enjoining defendants' speech. The Cohen court spoke to this subject:

Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act ... to protect the sensitive .... While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, [ ], we have at the same time consistently stressed that 'we are often "captives" outside the sanctuary of the home and subject to objectionable speech.' [ ] The ability of government... to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner ....

 

In summary, as we read the controlling Supreme Court opinions, use of the swastika is a symbolic form of free speech entitled to first amendment protections. Its display on uniforms or banners by those engaged in peaceful demonstrations cannot be totally precluded solely because that display may provoke a violent reaction by those who view it. Particularly is this true where, as here, there has been advance notice by the demonstrators of their plans so that they have become, as the complaint alleges, "common knowledge" and those to whom sight of the swastika banner or uni-forms would be offense are forewarned and need not view them. A speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen.

As to those who happen to be in a position to be involuntarily confronted with the swastika, the following observations from Erznoznik v. City of Jacksonville ... [ ], are appropriate:

The plain, if at all times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, 'we are inescapably captive audiences for many purposes.' [] Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent the narrow circumstances described above [home intrusion or captive audience], the burden normally falls upon the viewer to 'avoid further bombardment of [his] eyes.' [].

 

Thus by placing the burden upon the viewer to avoid further bombardment, the Supreme Court has permitted speakers to justify the initial intrusion into the citizen's sensibilities.

We accordingly, albeit reluctantly, conclude that the display of the swastika cannot be enjoined under the fighting-words exception to free speech, nor can anticipation of a hostile audience justify the prior restraint. Furthermore, Cohen and Erznoznik direct the citizens of Skokie that it is their burden to avoid the offensive symbol if they can do so without unreasonable inconvenience. Accordingly, we ... reverse that part of the appellate court judgment enjoining the display of the swastika.

Clark, J. dissenting.

Notes and Questions

1. The Skokie cases make clear that, subject to the "fighting words" exception of Chaplinsky, the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the listeners - the so-called "hecklers' veto". (see Bachellar v. Maryland (1970), 397 U.S. 564, 567). To what extent should this doctrine permit groups to demonstrate in a forum or locality where their ideas will be particularly offensive? Should the availability of alternative forums where the ideas would be less offensive be a factor? Is there a principled way to distinguish between the demonstrations in Skokie and those by civil rights activists in the late 50's and early 60's in the deep South?

2. The Supreme Court of Illinois also rejected the argument that the people of Skokie were a "captive audience". The Court noted that there had been advance notice by the demonstrators, and thus those to whom the message was offensive could simply not attend the demonstration. Would this then permit demonstration in public parks but preclude demonstration in residential areas? What about individuals who for reasons of employment or otherwise have to be in the public park area during the demonstration?

Doe v. University of Michigan

721 F. Supp. 852 (1989) (E.D. Mich.)

Cohn, District Judge

... Recently, the University of Michigan at Ann Arbor ... adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment [ ] in an attempt to curb what the University's governing Board of Regents [ ] viewed as a rising tide of racial intolerance and harassment on campus. The Policy prohibited individuals, under the penalty of sanctions, from "stigmatizing or victimizing" individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status....

According to the University, in the last three years incidents of racism and racial harassment appeared to become increasingly frequent.... For example, on January 27, 1987, unknown persons distributed a flier declaring "open season" on blacks, which it referred to as "saucer lips, porch monkeys, and jigaboos." On February 4, 1987, a student disc jockey at an on-campus radio station allowed racist jokes to be broadcast. At a demonstration protesting these incidents, a Ku Klux Klan uniform was displayed from a dormitory window. These events and others prompted the University's President on February 19, 1987 to issue a statement expressing outrage and reaffirming the University's commitment to maintaining a racially, ethnically, and culturally diverse campus. The University was unable to identify any of the perpetrators. It is unknown whether the culprits were students. Likewise, there was no evidence to suggest that these were anything other than isolated and purposeless acts. ...

At the January 15, 1988 meeting of the Regents, the Acting President informed the Board that he been working on a proposed policy on student discipline dealing with racial harassment.... He stated that he was taking this action in response to widespread complaints.... Adoption of a policy, he noted, "would enable the University to take the position that it was willing to do something about this issue." The Acting President conceded that any proposed policy would implicate serious civil liberties questions, but he expressed a commitment to pursue the problem nevertheless.

[After drafts and hearings the policy] became effective on May 31, 1988....

A. The Terms of the Policy

The Policy established a three-tiered system whereby the degree of regulation was dependent on the location of the conduct at issue. The broadest range of speech and dialogue was "tolerated" in variously described public parts of the campus. Only an act of physical violence or destruction of property was considered sanctionable in these settings. Publications sponsored by the University such as the Michigan Daily and the Michigan Review were not subject to regulation. The conduct of students living in University housing is primarily governed by the standard provisions of individual leases, however the Policy appeared to apply in this setting as well. The Policy by its terms applied specifically to "[e]ducational and academic centers, such as classroom buildings, libraries, research laboratories, recreation and study centers[.]" In these areas, persons were subject to discipline for:

1. Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that

 

a. Involves an express or implied threat to an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

 

b. Has the purpose or reasonably foreseeable effect of interfering with an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

 

c. Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.

 

2. Sexual advances, requests for sexual favors, and verbal or physical conduct that stigmatizes or victimizes an individual on the basis of sex or sexual orientation where such behavior:

 

a. Involves an express or implied threat to an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

 

b. Has the purpose or reasonably foreseeable effect of interfering with an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or

 

c. Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.

On August 22, 1989, the University publicly announced ... that it was withdrawing section 1(c) on the grounds that "a need exists for further explanation and clarification of [that section] of the policy." No reason was given why the analogous provision in paragraph 2(c) was allowed to stand.

Shortly after the promulgation of the policy in the fall of 1988, the University Office of Affirmative Action issued an interpretive guide (Guide) entitled What Students Should Know about Discrimination and Discriminatory Harassment by Students in the University Environment. The Guide purported to be an authoritative interpretation of the Policy and provided examples of sanctionable conduct. These included:

A flyer containing racist threats distributed in a residence hall.

Racist graffiti written on the door of an Asian student's study carrel.

A male student makes remarks in class like "Women just aren't as good in this field as men," thus creating a hostile learning atmosphere for female classmates.

Students in a residence hall have a floor party and invite everyone on their floor except one person because they think she might be a lesbian.

A black student is confronted and racially insulted by two white students in a cafeteria.

Male students leave pornographic pictures and jokes on the desk of a female graduate student.

Two men demand that their roommate in the residence hall move out and be tested for AIDS.

 

In addition, the Guide contained a separate section entitled "You are a harasser when ..." which contains the following examples of discriminatory conduct:

You exclude someone from a study group because that person is of a different race, sex, or ethnic origin than you are.

You tell jokes about gay men and lesbians.

Your student organization sponsors entertainment that includes a comedian who slurs Hispanics.

You display a confederate flag on the door of your room in the residence hall.

You laugh at a joke about someone in your class who stutters.

You make obscene telephone calls or send racist notes or computer messages.

You comment in a derogatory way about a particular person or group's physical appearance or sexual orientation, or their cultural origins, or religious beliefs.

 

It was not clear whether each of these actions would subject a student to sanctions, although the title of the section suggests that they would. It was also unclear why these additional examples were listed separately from those in the section entitled "What is Discriminatory Harassment."

According to the University, the Guide was withdrawn at an unknown date in the winter of 1989, because "the information in it was not accurate." ...

IV. Standing

Doe is a psychology graduate student. His specialty is the field of biopsychology, which he describes as the interdisciplinary study of the biological bases of individual differences in personality traits and mental abilities. Doe said that certain controversial theories positing biologically-based differences between sexes and races might be perceived as "sexist" and "racist" by some students, and he feared that discussion of such theories might be sanctionable under the Policy. He asserted that his right to freely and openly discuss these theories was impermissibly chilled, and he requested that the Policy be declared unconstitutional and enjoined on the grounds of vagueness and overbreadth.

The University in response questioned Doe's standing to challenge the Policy, saying that it has never been applied to sanction classroom discussion of legitimate ideas and that Doe did not demonstrate a credible threat of enforcement as to himself.... It is well settled that an individual has standing to challenge the constitutionality of a penal statute if he or she can demonstrate a realistic and credible threat of enforcement....

Were the Court to look only at the plain language of the Policy, it might have to agree with the University that Doe could not have realistically alleged a genuine and credible threat of enforcement. The Policy prohibited conduct which "stigmatizes or victimizes" students on the basis of "race, ethnicity, religion, sex, sexual orientation" and other invidious factors. However, the terms "stigmatize" and "victimize" are not self defining. These words can only be understood with reference to some exogenous value system. What one individual might find victimizing or stigmatizing, another individual might not. Accordingly, the likelihood of a complaint being filed in response to Doe's anticipated classroom comments would be speculative at best....

The slate was not so clean, however. The Court had before it not only the terms of the Policy, but also its legislative history, the Guide, and experiences gleaned from a year of enforcement. The record clearly shows that there existed a realistic and credible threat that Doe could be sanctioned were he to discuss certain biopsychological theories.

The legislative history demonstrated that the Policy was originally conceived as a remedy for racially insensitive and derogatory remarks which students found offensive.... The record before the Court thus indicated that the drafters of the policy intended that speech need only be offensive to be sanctionable.

The Guide also suggested that the kinds of ideas Doe wished to discuss would be sanctionable. The Guide was the University's authoritative interpretation of the Policy. It explicitly stated that an example of sanctionable conduct would include:

A male student makes remarks in class like "Women just aren't as good in this field as men," thus creating a hostile learning atmosphere for female classmates.

 

Doe said in an affidavit that he would like to discuss questions relating to sex and race differences in his capacity as a teaching assistant in Psychology 430, Comparative Animal Behavior. He went on to say:

An appropriate topic for discussion in the discussion groups is sexual differences between male and female mammals, including humans. [One] ... hypothesis regarding sex differences in mental abilities is that men as a group do better than women in some spatially related mental tasks partly because of a biological difference. This may partly explain, for example, why many more men than women chose to enter the engineering profession.

 

Doe also said that some students and teachers regarded such theories as "sexist" and he feared that he might be charged with a violation of the Policy if he were to discuss them. In light of the statements in the Guide, such fears could not be dismissed as speculative and conjectural....

Finally, the record of the University's enforcement of the Policy over the past year suggested that students in the classroom and research setting who offended others by discussing ideas deemed controversial could be and were subject to discipline.... [O]n at least three separate occasions, students were disciplined or threatened with discipline for comments made in a classroom setting. [ ] At least one student was subject to a formal hearing because he stated in the context of a social work research class that he believed that homosexuality was a disease that could be psychologically treated. As will be discussed below, the Policy was enforced so broadly and indiscriminately, that plaintiff's fears of prosecution were entirely reasonable. Accordingly, ... Doe had standing ....

Doe initially moved for a preliminary injunction against the Policy on the grounds that it was unconstitutionally vague and overbroad and that it chilled speech and conduct protected by the First Amendment. ....

A. Scope of Permissible Regulation

Before inquiring whether the policy is impermissibly vague and overbroad, it would be helpful to first distinguish between verbal conduct and verbal acts that are generally protected by the First Amendment and those that are not. It is the latter class of behavior that the University may legitimately regulate.

Although the line is sometimes difficult to draw with precision, the Court must distinguish at the outset between the First Amendment protection of so-called "pure speech" and mere conduct. [ ] As to the latter, it can be safely said that most extreme and blatant forms of discriminatory conduct are not protected by the First Amendment, and indeed are punishable by a variety of state and federal criminal laws and subject to civil actions. Discrimination in employment, education, and government benefits on the basis of race, sex, ethnicity, and religion are prohibited by the constitution and both state and federal statutes. [ ]

Many forms of sexually abusive and harassing conduct are also sanctionable. These would include abduction, [ ] rape, and other forms of criminal sexual conduct [ ]. The dissemination of legally obscene materials is also a crime under state law. [ ] In addition, a civil remedy exists for women who are subjected to demands for sexual favors by employers as an express or implied quid pro quo for employment benefits. [ ] Minorities or women who are exposed to such extreme and pervasive workplace harassment as to create a hostile or offensive working environment are also entitled to civil damages. [ ] The First Amendment presents no obstacle to the establishment of internal University sanctions as to any of these categories of conduct....

While the University's power to regulate so-called pure speech is far more limited, [ ] certain categories can be generally described as unprotected by the First Amendment. It is clear that so-called "fighting words" are not entitled to First Amendment protection. [ ] ... Under certain circumstances racial and ethnic epithets, slurs, and insults might fall within this description and could constitutionally be prohibited by the University. In addition, such speech may also be sufficient to state a claim for common law intentional infliction of emotional distress. [ ] Credible threats of violence or property damage made with the specific intent to harass or intimidate the victim because of his race, sex, religion, or national origin is punishable both criminally and civilly under state law. [ ] Similarly, speech which has the effect of inciting imminent lawless action and which is likely to incite such action may also be lawfully punished. [] Civil damages are available for speech which creates a hostile or abusive working environment on the basis of race or sex. [ ] Legally obscene speech is unprotected by the First Amendment [ ]. Similarly, speech which is "vulgar," "offensive," and "shocking" is not entitled to absolute constitutional protection in all circumstances. [ ] Certain kinds of libel and slander are also not protected. [ ] Finally, the University may subject all speech and conduct to reasonable and nondiscriminatory time, place, and manner restrictions which are narrowly tailored and which leave open ample alternative means of communication. [ ] If the Policy had the effect of only regulating in these areas, it is unlikely that any constitutional problem would have arisen.

What the University could not do, however, was establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages sought to be conveyed.... Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people. []

These principles acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's educational mission....

B. Overbreadth

Doe claimed that the Policy was invalid because it was facially overbroad. It is fundamental that statutes regulating First Amendment activities must be narrowly drawn to address only the specific evil at hand.... A law regulating speech will be deemed overbroad if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate. [ ]

The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad. ... [T]he state may not prohibit broad classes of speech, some of which may indeed be legitimately regulable, if in so doing a substantial amount of constitutionally protected conduct is also prohibited. This was the fundamental infirmity of the Policy.

The University repeatedly argued that the Policy did not apply to speech that is protected by the First Amendment. It urged the Court to disregard the Guide as "inaccurate" and look instead to "the manner in which the Policy has been interpreted and applied by those charged with its enforcement." However, as applied by the University over the past year, the Policy was consistently applied to reach protected speech.

On December 7, 1988, a complaint was filed against a graduate student in the School of Social Work alleging that he harassed students based on sexual orientation and sex. The basis for the sexual orientation charge was apparently that in a research class, the student openly stated his belief that homosexuality was a disease and that he intended to develop a counseling plan for changing gay clients to straight. [ ] He also related to other students that he had been counseling several of his gay patients accordingly. The student apparently had several heated discussions with his classmates over the validity and morality of his theory and program. On January 11, 1989, the Interim Policy Administrator wrote to the student informing him that following an investigation of the complaints, there was sufficient evidence to warrant a formal hearing on the charges of sex and sexual orientation harassment. A formal hearing on the charges was held on January 28, 1989. The hearing panel unanimously found that the student was guilty of sexual harassment but refused to convict him of harassment on the basis of sexual orientation. The panel stated:

In a divided decision the hearing panel finds that the evidence available to the panel indicates that -------- did not harass students on the basis of sexual orientation under the strict definition of "The University of Michigan Policy on Discrimination and Discriminatory Harassment by Students in the University Environment." In accordance with First Amendment rights to free speech and the University's policy of academic freedom, -------- did not violate the policy by discussing either the origins or "curability" of homosexuality in the School of Social Work.

 

Although the student was not sanctioned over the allegations of sexual orientation harassment, the fact remains that the Policy Administrator... saw no First Amendment problem in forcing the student to a hearing to answer for allegedly harassing statements made in the course of academic discussion and research. Moreover, there is no indication that had the hearing panel convicted rather than acquitted the student, the University would have interceded to protect the interests of academic freedom and freedom of speech.

A second case, which was informally resolved, also demonstrated that the University did not exempt statements made in the course of classroom academic discussions from the sanctions of the policy. On September 28, 1988, a complaint was filed against a student in an entrepreneurship class in the School of Business Administration for reading an allegedly homophobic limerick during a scheduled class public-speaking exercise which ridiculed a well known athlete for his presumed sexual orientation. [ ] The Policy Administrator was able to persuade the perpetrator to attend an educational "gay rap" session, write a letter of apology to the Michigan Daily, and apologize to his class and the matter was dropped. No discussion of the possibility that the limerick was protected speech appears in the file or in the Administrator's notes.

A third incident involved a comment made in the orientation session of a preclinical dentistry class. The class was widely regarded as one of the most difficult for second year dentistry students. To allay fears and concerns at the outset, the class was broken up into small sections to informally discuss anticipated problems. During the ensuing discussion, a student stated that "he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly." [ ] A minority professor teaching the class filed a complaint on the grounds that the comment was unfair and hurt her chances for tenure. Following the filing of the complaint, the student was "counseled" about the existence of the policy and agreed to write a letter apologizing for making the comment without adequately verifying the allegation, which he said he had heard from his roommate, a black former dentistry student.

The manner in which these three complaints were handled demonstrated that the University considered serious comments made in the context of classroom discussion to be sanctionable.... The innocent intent of the speaker was apparently immaterial....Moreover, the Administrator generally failed to consider whether a comment was protected by the First Amendment before informing the accused student that a complaint had been filed. The Administrator instead attempted to persuade the accused student to accept "voluntary" sanctions. Behind this persuasion was, of course, the subtle threat that failure to accept such sanctions might result in a formal hearing. There is no evidence in the record that the Administrator ever declined to pursue a complaint through attempted mediation because the alleged harassing conduct was protected by the First Amendment. Nor is there evidence that the Administrator ever informed an accused harasser during mediation negotiations that the complained of conduct might be protected. The Administrator's manner of enforcing the Policy was constitutionally indistinguishable from a full blown prosecution. The University could not seriously argue that the policy was never interpreted to reach protected conduct. It is clear that the policy was overbroad both on its face and as applied.

C. Vagueness

Looking at the plain language of the Policy, it was simply impossible to discern any limitation on its scope or any conceptual distinction between protected and unprotected conduct.... The operative words in the cause section required that language must "stigmatize" or "victimize" an individual. However, both of these terms are general and elude precise definition....

[T]he University never articulated any principled way to distinguish sanctionable from protected speech. Students of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy. The terms of the Policy were so vague that its enforcement would violate the due process clause. [ ]

... As the Court noted ..., there is nothing in the record to suggest that the University looked at the experience of any other university in developing its approach to the problem of discriminatory harassment. Had it done so, it might have discovered that Yale University ... faced a similar dilemma pitting its efforts to promote equality against its commitment to free speech. In 1986, a sophomore at Yale was put on probation for two years by a University discipline board for disseminating a malicious flier intended to ridicule the homosexual community. The board eventually reversed the sanction, but only after a second hearing was held at which the student was represented by historian C. Vann Woodward, author of the University's 1975 report on free speech. [ ] That report concluded that "freedom of expression is a paramount value, more important than civility or rationality." [ ] Writing about the case, Professor Woodward observed:

It simply seems unnatural to make a fuss about the rights of a speaker who offends the moral or political convictions passionately held by a majority. The far more natural impulse is to stop the nonsense, shut it up, punish it--anything but defend it. But to give rein to that inclination would be to make the majority the arbiters of truth for all. Furthermore, it would put the universities into the business of censorship.[]

 

While the Court is sympathetic to the University's obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech. Unfortunately, this was precisely what the University did....

Notes and Questions

1. In this case, the Court holds that the University of Michigan's policy was overbroad as it swept within its scope a significant amount of speech which was unquestionably protected under the First Amendment. As well, the Court held that the terms of the policy were so vague that its enforcement was also unconstitutional. Would the provincial human rights codes considered earlier satisfy these tests? Why was the defence of truth not considered in this case?

2. Professor Philip Rushton, a psychology professor who teaches at the University of Western Ontario, has developed a theory which divides humans into three categories: orientals, caucasians, and blacks. He suggests that orientals having the largest cranial capacity on average, are therefore more intelligent on average than whites, who in turn have greater cranial capacities on average than blacks. Should a complaint against Rushton relying upon the provisions of the Ontario Human Rights Code succeed? Why or why not?

More recently the University of Western Ontario has determined that Professor Rushton will not be permitted to give his lectures in person. Rather, he will be required to videotape his lectures and students will be permitted to sign the tapes out. Assuming that the University is a state actor, would Professor Rushton have any claim under s.2(b) against such action?

3. See also Framework Regarding Prevention of Harassment and Discrimination in Ontario Universities (Ontario Ministry of Education and Training); and Report in Respect of the Political Science Department of U.B.C. (by Joan McEwen).