How Trump gets away with it
Donald Trump’s call for a ban on Muslims entering the United States, “until our country’s representatives can figure out what’s going on” has been met with outrage. But the billionaire presidential candidate has only doubled down on his vow, the latest in a string of anti-minority comments ranging from the offensive to the absurd. Kathleen Saylors explains how he gets away with it.
Q Why is Trump allowed to make comments like these? They’re in bad taste at best, hateful at worst.
A The short answer is because he’s in the United States. The U.S. has extremely strong protections for free speech, which is only considered hateful if it will incite direct and immediate violence. Trump pontificating at a podium or in an interview doesn’t qualify. Until he starts an angry mob, he’s free to say whatever he likes.
Q Would it be different if he were speaking in Canada?
A Trump’s most recent comments might be offensive, but they still couldn’t be prosecuted under Canadian law. Though hate speech laws in Canada are broader than they are south of the border, speech needs to meet some very specific requirements to be considered hateful here, too.
Q What does the Canadian law say?
A Section 319 (1) of the Criminal Code states that hate speech is something that “incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace” and where the comments are made in a public place. This would pose problems for charges under hate speech law. “(T)he immediacy of the breach of the peace would make it extremely difficult to convict someone for saying what Trump said,” says Faisal Kutty, a Toronto lawyer and human rights activist. Q So if he’s unclear, that’s OK? A Yes, says Richard Moon, a law professor at the University of Windsor. “That’s the main problem with trying to fit his current statement under the hate speech law: it doesn’t have any real hateful content in the sense of making a claim about the nature of character of Muslims. Of course, why should they be excluded other than, presumably, on the belief that they are somehow dangerous? But he leaves that slightly open.”
Q But people are calling his comments hate speech.
A While his comments might be considered hateful, the burden of proof under the law is higher. The comments must meet specific criteria to be prosecuted, and his comments don’t meet these standards.
Q What about some of his other comments? He’s said a lot more extreme things in the past.
A Some of his previous remarks could more easily be prosecuted, like his claims about Mexican immigrants: “They’re bringing drugs. They’re bringing crime. They’re rapists.” “That is the very stuff of hate speech, and a claim like that made in Canada might well constitute hate speech contrary to the Criminal Code,” Moon says.
Q Why are Canadian and American hate speech laws so different?
A It’s probably due to a lot of factors, but part of it traces back to the founding of the country. America is old, and so are some of the laws, said David Matas, a Winnipegbased lawyer and author of Bloody Words: Hate and Free Speech. “In the United States you’ve got a bill of rights which is very old. It comes from the 18th century. Everywhere else, the concept of rights is post-Holocaust, post-Declaration of Human Rights. Being ahead of the gun at the time has left them far behind when it comes to the 21st century.”