Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada

397 Pages·2004·19.708 MB·English

by  Stefan Braun

DEMOCRACY OFF BALANCE
Freedom of Expression and Hate Propaganda Law in Canada
Freedom of public expression is becoming ever more contested in
Canada. The idea that official messages, meanings, and histories can
take the place of publicly constructed ones - for fear of what an uncen-
sored public might themselves construct - is gaining widespread accep-
tance. Public invocation of hate propaganda law, its language, and its
moral authority in otherwise ordinary discursive contexts, has contrib-
uted to, and is symbolic of, this trend.
Democracy Off Balance offers an analysis of hate censorship as a para-
dox of modern democratic discourse. In this controversial work, Stefan
Braun argues against the supposed public interest served by hate speech
laws and dissects the complex forces - the politically self-contradictory
thinking and the socially self-defeating assumptions - that drive censor-
ship in Canada today.
Braun draws on censors' own terms of social and political reference
to show how they undermine their own causes with hate censorship. He
demonstrates how hate speech law reaches beyond its strictly legal con-
fines and essentially conditions and corrodes public discourse. Timely
and absorbing, Democracy Off Balance offers a multidimensional approach
to the debate and challenges traditional views on the legal boundaries
of freedom of expression.
STEFAN BRAUN is a barrister and solicitor in Thornhill, Ontario.
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STEFAN BRAUN
Democracy Off Balance
Freedom of Expression and
Hate Propaganda Law in Canada
UNIVERSITY OF TORONTO PRESS
Toronto Buffalo London
www.utppublishing.com
© University of Toronto Press Incorporated 2004
Toronto Buffalo London
Printed in Canada
ISBN 0-8020-8959-3 (cloth)
ISBN 0-8020-8636-5 (paper)
Printed on acid-free paper
National Library of Canada Cataloguing in Publication Data
Braun, Stefan, 1954-
Democracy off balance : freedom of expression and hate propaganda law in
Canada /Stefan Braun.
Includes bibliographical references and index.
ISBN 0-8020-8959-3 (bound). ISBN 0-8020-8636-5 (pbk.)
1. Freedom of speech - Canada. 2. Hate speech - Canada. I. Title.
KE4418.B73 2004 323.44'3'0971 C2003-906108-6
KF4483.C524B73 2004
This book has been published with the help of a grant from the Canadian
Federation for the Humanities and Social Sciences, through the Aid to
Scholarly Publications Programme, using funds provided by the Social Sciences
and Humanities Research Council of Canada.
University of Toronto Press acknowledges the financial assistance to its
publishing program of the Canada Council for the Arts and the Ontario Arts
Council.
University of Toronto Press acknowledges the financial support for its publish-
ing activities of the Government of Canada through the Book Publishing
Industry Development Program (BPIDP).
Contents
Acknowledgments xi
Introduction 3
Chapter One: Foundations of the Imbalance 12
I The Malady and the Prevention:
A Brief Historical Perspective 12
II The Political and Intellectual Slide:
From Open Bigotry to Subconscious Prejudice to Structural
Discrimination - from National Survival to Social
Transformation 13
III The Juridical Slide:
From a Right of Expression to a Question of Content -
the Evolution of Asymmetry in Judicial Balancing 22
Conclusion 33
Chapter Two: Functions and Assumptions of Freedom of
Expression 34
I Participation, Self-determination, and Self-government 34
II Enlightened Publics, Honest Politics, Accountable Polidcians,
and Self-government 40
1 Enlightened Participation and Social Division 40
2 Meaningful Public Discourse, Social Truth, and Social
Division 43
vi Contents
3 Multiplicity of Public Truth and Social Division 48
4 Honest Politicians, Accountable Politics, Public Division 54
III Adaptation, Change, and Enduring Self-government 57
Conclusion 60
Chapter Three: Functions and Assumptions of Hate Propaganda Law
62
I Peace and Order:
Victim Retaliation and Disturbance to Public Order 63
II Community Participation and Multiculturalism:
Hate-Induced Self-exclusion, Self-withdrawal, Negative
Participation, and Assimilation 66
III Community Participation and Multiculturalism:
Societal Exclusion - Visible and Invisible 73
1 Visible Exclusion 73
2 Invisible Exclusion 76
IV Social Disintegration and Political Conflagration:
The 'Mushroom' Thesis 78
Conclusion 85
Chapter Four: The Political Dilemma, Part I: Legally Definable and
Politically Defensible Hate Censorship 87
I Unwrapping the Politics of Content:
What Is Hate Propaganda and How Do You Fix It? 90
II Unwrapping the Politics of Victimhood:
Absolute Victims and Absolute Victimizers 98
III Unwrapping the Politics of Fixing Social Right:
Trusted Censorship and Trustworthy Censors 106
1 Competence 107
2 Chilling Effects 108
3 Accountability 110
4 Conflict of Interest 115
5 Fixability 117
Conclusion 119
Contents vii
Chapter Five: The Political Dilemma, Part II: The 'Slippery Slope'
121
I The Drive to Slide 122
1 Rival Groups and the Conduct of Silencing 123
i) The Club of Social Censorship Rivalry 123
ii) The Club of the Conduct of the Censorship Debate 127
2 Censors and Self-justification 131
3 The Public, the Politician, and the Paradox 132
4 The Public, the Politician, and the Hatemonger 133
II Changing Course:
The Political Dynamics of Self-correction and the Legacies
of Censorship's Slide 135
1 The Political Dynamics of Self-correction 136
2 Political Backlash and Its Legacies 139
Conclusion 141
Chapter Six: The Pragmatic Dilemma: Hate Censorship
That 'Works' 143
I How Prosecution Misappropriates Discursive Public Conflict and
Misshapes Public Perceptions to the Detriment of the Cause of
Repression 144
II Effective and Successful Censorship?
Mutual Exclusivity and the Four False 'Faults' 149
1 Trial 150
2 Media Coverage 153
3 Opponents and Technology 155
4 Coverage or Targeting 160
III Effectiveness and Success:
The Dilemma of the Moving Target - the 'Slippery Slope'
Revisited 165
IV Differential Censorial Impact:
The Final Blow 169
1 The Shield: Subjective Audience Impact 170
2 The Sword: Subjective Speaker Impact 172
Conclusion 174
viii Contents
Chapter Seven: The Jurisprudential Dilemma: The Exceptions
Defence and Democratic Justification 176
I Manner and Form Regulation 177
II False Alarms (Pranksterism) and Fighting Words 178
III Defamation of Public Officials (Libel and Slander) 180
IV Obscenity 182
V Group Defamation and Seditious Libel 189
1 Group Defamation: Beauharnais v. People of the State of
Illinois 189
2 Seditious Libel: Boucher \. The King 191
Conclusion 193
Chapter Eight: Alternative Juridical Balances and Balancing Juridical
Alternatives 195
I Suppression of Hatred against Identifiable Groups Expressed
through False Facts on Matters of Society, History, or
Governance 196
II Suppression of the Promotion of Hatred against Identifiable
Groups 200
III Suppression of Incitement to Illegal Acts of Hatred against
Identifiable Groups Likely to Produce Such Illegal Acts 203
IV Temporary Suppression of Expressions of Hatred in Extraordinary
Conditions of Grave and Irreparable Harm 209
Chapter Nine: Alternative Measures: Towards a Less Self-intrusive
Balance 216
I Progress and Prognosis:
Alternatives to Legal Silencing Revisited 217
1 The Work of Alternatives in Canadian History 217
2 Uses and Abuses of History: Missing and Mispackaging the
Evidence 219
II The Case for Alternatives 220
1 Punishment and Command Alternatives 221
i) Society-directed (or at-large) Alternatives 222
Contents ix
ii) Spillover Alternatives 224
Hi) Self-directed Community Alternatives 227
2 Discursive Alternatives 228
i) Discursive Pressure Alternatives 230
ii) Persuasion Alternatives 236
3 Mixed Discursive Alternatives 252
Conclusion 253
Conclusion 256
Appendix 265
Table of Cases 267
Table of Legislation 271
Notes 273
Select Bibliography 355
Index 367