Hurt feelings aren’t reason enough to tread on freedom of speech

Hardly was there time to celebrate the demise of Section 13, the infamous provision of the Canadian Human Rights Act prohibiting "communication of hate messages,” before we were reminded this was not the only unwarranted restriction on freedom of speech on the books.

Section 319.2 of the Criminal Code, for example, forbidding the "wilful” promotion of hatred "against any identifiable group,” is currently getting a workout in a Regina courtroom in the case of Terry Tremaine, a sometime math lecturer and avowed neo-Nazi. While Tremaine will have available to him the sorts of due process rights denied to those hauled before the human rights tribunals, the end result is much the same: the suppression of speech that society finds objectionable for the sole reason that it is objectionable. If convicted, he faces up to two years in jail.

The National Post made the case that such prosecutions only provide a platform for the promotion of the very ideas that were supposedly so toxic. In the age of the Internet, moreover, only a tiny fraction of such material is ever likely to be caught in the state’s web, raising questions as to what is being achieved.

But these are practical arguments. I want to raise a more fundamental objection. Societies that maintain such laws are making a statement about who they are, the sorts of principles they value and why.

I’ll make the customary disclaimer here: freedom of speech is indeed not absolute. But the classical exceptions developed over the centuries – libel, fraud and so on – typically find justification in the concept of harm. It isn’t enough that the speech is considered offensive. It must be shown to have caused, or be likely to cause, demonstrable harm to some identifiable person.

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