Hate, harm can be found in speech

Remember when you were a kid and mom told you, “Sticks and stones may break your bones, but names will never hurt you.”

Then you grew up and realized that words matter, particularly when they express values, attitudes and intended actions.

The Supreme Court of Canada in the long-awaited Bill Whatcott case has unleashed a national debate over free speech, hatred and where lines should be drawn, if at all.

The court upheld a Saskatchewan Human Rights Commission decision that offensive antigay pamphlets distributed by self-described Christian activist Bill Whatcott violated the anti-hate provisions of the Saskatchewan Human Rights Code.

Unlike some of my philosophical fellow travellers, this decision leaves me on the fence, agreeing in principle with the court but questioning some aspects of a nuanced and often gingerly written judgment.

One annoyed radio listener was blunt, suggesting I have joined those “sitting on the fence of political correctness and urinating on liberty.”

Not so fast. I agree that in a perfect world, unencumbered free speech is the ultimate jerk-detector. Every time ignorant boors and bigots spew their bile in the public square we hear them and pass judgment; the more outrageous their claims, the less credible and powerful they become.

But is all speech, short only of that which counsels violence (which is the more liberal American Standard of free speech), going to be judged with such equanimity by people as if they had good hearts and common sense?

No it’s not. Certain hateful speech can cause harm to others when it crosses the line — more than being merely offensive — into what the court calls the “extreme manifestation of the emotion, described by the words detestation and vilification.” Enough incendiary, abusive and extreme speech can be like splashing gasoline around and waiting for someone to light a match.

My support for the principle of drawing lines around some speech doesn’t mean that there are aspects of this decision that aren’t troubling.

For example, the Supreme Court unanimously ruled that it is irrelevant whether the person making the statement intended to incite hatred. There is no requirement to prove actual harm to anyone as a result of the words, the court ruled, nor does either truth or sincerely held belief act as a defence.

The court also ruled that where sexual behaviour targeted by the speech is a “crucial aspect of the identity of a vulnerable group,” attacking the conduct is the same as attacking the group.

This led Saskatchewan legal scholar Michael Plaxton to observe that along with the court’s careful parsing of the Whatcott pamphlets, it is a very real burden to even enter the debate when someone commenting from a religious perspective on sexual morality might first have a lawyer vet their words.

For all the national debate this decision has created in limiting free speech, the Whatcott case also struck down as unconstitutional a silly and embarrassing 1970s-era part of the Saskatchewan Human Rights Code.

In addition to dealing with employment, education, property, public access and protecting minorities from hatred, the Saskatchewan code contained a “hurt feelings” clause where it was also illegal to display or say anything likely to “ridicule, belittle or otherwise affront the dignity” of a minority person or group.

This over-reaching grasp of the nanny state not only kept a generation of aggressive and political mischief-making zealots on the government payroll, it also created a culture where the perpetually offended had a place to bring their micro-grievances.

The death of this part of our human rights law might also end frivolous complaints about Merry Christmas on bus signs and grace at public meals. Or at least we can hope.