Anti Hate Speech Laws, Anti-Terrorism and the Restriction of Freedom of Speech

Bill C-51, legislation that would make it illegal to advocate terrorism, has put debate over the exercise of freedom of speech back into the news. In principle, laws against the advocacy of terrorism have parallels with laws that make hate speech illegal. Both use the protection of groups targeted by either terrorists or hate groups as a justification for restrictions on freedom of speech. It is a cliche to make the argument that freedom of speech has limitations. There is some speech, the often used example of shouting fire in a crowded theatre, that clearly does more than good and should thus be restricted. The interesting debate lies in the cases that are less clear, where the harms that can come about as a result of speech must be carefully balanced against the benefits that come from allowing people freedom to express whatever views they wish. Anti-hate speech laws and anti-terrorism advocacy legislation are justified, but only in cases where they are narrowly targeted to restrict speech that either directly or indirectly threatens others with violence. I should note here that this post will not conduct a detailed examination of Bill C-51 and will not examine in it as it relates to the Charter of Rights. My goal here is not to discuss the details of the bill, but rather to examine the conditions under which restrictions of speech can be justified.

There are two major reasons that freedom of speech protections are essential for any liberal democracy. The first justification of freedom of speech is that the expression of ideas is central to one’s well-being in a free society. Independent of the impact that expression has on public discourse, there is value in allowing humans to express themselves as a way of fulfilling their own ends. Humans are to a large degree social beings and the ability to bring forward and discuss ideas with others has value in allowing individuals seeking to lead meaningful lives. The freedom and ability to come up with independent thought has a more limited value when those thoughts have to be kept to oneself because part of the value that many gain from having ideas comes out of their ability to share their ideas with others. The second thing of value that comes about as a result of freedom of speech is more robust political discourse. Freedom of speech allows for the expression and challenging of ideas in a way that allows people to gain a greater understanding of their merits and drawbacks. There is value in a society that is highly skeptical, that subjects ideas to a great deal of criticism in the hope that the strongest ideas will be the ones that survive public debate. That can only happen when governments allow people the freedom to bring forward and defend the ideas that they find most compelling while criticizing those that do not. In a skeptical society governments cannot presume to have absolute knowledge over which ideas are best and therefore must allow individuals extensive leeway to express whichever ideas and arguments they wish.

Nothing in the above paragraph is particularly controversial. It does though ground the value of freedom of speech protections in the goods that individuals derive from them. Freedom of speech is not innately good, it is an instrumental good that has value only in so far as it allows individuals to benefit from the goods that come with self-expression and from more robust political debate. Those benefits are of great importance to societies, but they are not limitless. If there are cases in which the harms that come about as a result of speech exceed the benefits gained from self-expression or wider political debate, governments are justified in intervening to restrict such speech.

The justification for banning hate speech does not lie in the concern that such ideas are repugnant (though they are), but rather in the harm that the expression of such ideas have on the way that others engage in public life. At its core hate speech is a threat of violence against an identifiable group that, in many cases by design, intimidates them and makes it harder for them to engage in public life. In the clearest cases of this advocates of hate are explicit in inciting violence against groups, but threats do not have to be explicit in order to have an impact on targeted groups. Neo-Nazis or the KKK do not have to explicitly advocate violence in order to send a message to groups that they mean to target them and are willing to be violent in doing so. The symbols that they use and the past history of these groups are enough to give targeted groups the reasonable fear that they are not safe in a community with a neo-Nazi or KKK presence. This can then prevent individuals from exercising many of the rights essential to life in a liberal democracy. Individuals may be less likely to attend synagogues or mosques or to travel alone at night for fear of being attacked by the hate group. At the very least the presence of makes the ability of individuals to exercise their rights highly unequal. Even if targeted groups are willing to risk violence to exercise a right, say to attend a religious institution, they face a higher barrier to the exercise of that right because doing so comes with a threat of violence that is not present for others. It is not only the government that can restrict access to rights. Independent organizations, especially when they are willing to act outside of the law, in many cases present a greater threat to individuals’ exercise of rights. It is finally worth noting that the threat of violence, even if it is not carried out, is what makes it difficult for people to exercise rights. It is the threat that makes people feel unsafe and the threat that makes people reconsider what they are willing do in public and how they are willing to engage with the public.

Counter-demonstrations (and counter-arguments) are often suggested as an effective, non-governmental way to respond to hate speech. This response is value, but does not get at the core harm that hate speech has on society. In a lot of cases (at least in Canada) there is little doubt amongst targeted groups that the majority of the community opposes threats of violence, and little belief that arguments by extreme hate groups will win the day in public debate (though one should distinguish here between hate groups and xenophobic political parties that do have an influence over public debate). The threat lies in the existence of an organized group willing to commit violence. Even when it is a small minority, this group can present a credible threat to minorities that is not reduced by counter-demonstrations. This threat requires government action in order to protect the individuals that are targeted.

Advocacy of terrorism in a lot of ways has similar dynamics to hate speech in terms of the way that it affects individuals ability to feel safe and secure in their everyday actions. It singles out targets, either locations or individuals, and then presents a threat of violence towards those targeted. Individuals singled out then face greater barriers to participating in public and have more difficulty exercising their own rights because of these threats. In terms of effect on the people targeted there is little difference between a neo-Nazi website advocating attacks on Jews or Muslims and a ISIS website advocating attacks against individuals committing blaspheme. Both advocate violence in a way that gives targeted groups a credible reason to be concerned about their safety and both merit government intervention.

The above makes the case that hate speech and advocacy of terrorism cause harms and that governments should intervene to limit them, but governments have to be careful in doing so because of the benefits to society that freedom of expression has. It is worth noting here that the benefits of hate speech and advocacy of terrorism are highly limited. They are both expressions of ideas, but expressions that limit the ability of others to express ideas to a far greater degree. An individual might be less willing to exercise their freedom of expression to present themselves as Jewish if they know that doing so could make them a target of a neo-Nazi organization. When organizations either directly advocate or implicitly advocate violence the harm that they cause to the ability of others to exercise rights outweighs the benefits that society (and the individuals) gain from being able to exercise a right to freedom of expression.

This is only the case, however, when laws to limit hate speech and advocacy of terrorism are narrowly tailored to go after only those groups that present a credible a threat to those that they target. The risk of making legitimate and valuable speech criminal should make governments very careful about the way that they design anti-hate speech and anti-terrorism advocacy laws. The extreme cases, where individuals or organizations advocate violence are probably easiest to deal with. In such cases it easy to adjudicate the presence of a credible threat since the individual is overtly making one. The more difficult cases lie in situations where individuals and organizations are implicitly supporting violence against targeted groups. Here context is central to the way cases are adjudicated. One has to look at the past actions of the group (or in the case of an individual the ideologies one associates with). One also has to look at the symbols that individuals and arguments used in order to determine if particular speech makes an implied threat of violence against a group. It may be easiest for governments to explicitly single out organizations as hate groups or terror groups and simply to ban speech connected to those groups. Past actions and advocacy could be used as a criteria could be used to determine which groups are listed, and the list could be adjusted to add new organizations as those organizations begin to advocate and carry out violence. Alternatively governments could lay out a criteria on which courts could adjudicate an implied threat, making explicit particular types of statements or references to particular types of events (positive references to genocide or to a past attack might be criteria for considering speech hateful for example). These laws should be as explicit as possible about what constitutes restricted speech in order that they not be used to go after legitimate speech that does not carry the same threats as hate speech and advocacy of terrorism to do.

The central test of whether anti-hate speech or anti-terrorism advocacy laws can be justified should lie in how well these laws balance the need to protect targeted groups from threats of violence against the benefits that are gained by allowing a wide range of opinions to be expressed. Governments seeking to strike such a balance will likely have to adjust policies over time in order to respond to situations in which policy is either too liberal or too restrictive. It is important that governments seek to achieve this balance. There is a danger that laws that are too restrictive end up restricting valuable speech but there is an equal danger that laws that are not restrictive enough leave targeted groups vulnerable to threats to their safety and security.

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