Glenn Greenwald has a good post up today about a hate speech investigation in Canada. Canada has more restrictive speech laws than does the US, laws that are consistent with their constitution but which allow the government to investigate and prosecute Canadians for hate speech that in the US would not be actionable. The case Greenwald references is that of Ezra Levant, who published the Danish Mohammed cartoons in his conservative Western Standard. A complaint was filed with the Alberta Human Rights and Citizenship Commission against Levant and the commission investigated. Greenwald has a 5 minute youtube clip of part of the investigation, as he says, it is “stomach-turning.”
Greenwald argues against the investigation and utilizes some classic First Amendment principles to do so. The Canadian constitution has a free speech provision that is at least as strongly worded at the First Amendment. However, their constitution also has a clause that requires that provisions of the constitution always be interpreted against a background commitment to equality. In a conflict between free speech and political equality, the Canadian constitution is read to favor equality even at the expense of free speech. Canada also has more restrictive pornography laws than the US based on gender equality arguments like Catharine MacKinnon’s. It is an entirely different constitutional arrangement than ours, there is a different politics to these cases in Canada than the US, and Canadian judges have different factors to consider when hearing these cases than an American judge deciding such a case under the First Amendment.
The Canadians (and the Danes, the Germans, the French, and the South Africans, among others) made different constitutional choices than the US has in structuring the meaning and content of free speech protections. We can learn a lot from the comparison between our respective constitutional practices. Greenwald’s criticisms are all valid, if this were a question of American First Amendment law, and may be valid as a question of free speech theory (although he doesn’t elaborate much of that theory in a short post), but the investigation he criticizes is constitutional under Canadian law.
We should discuss this case in class both in terms of what it says about free speech theory and what it tells us about American hate speech law that we will read in a couple of weeks. I don’t think it is an accident that the Canadians designed their constitution (ratified in 1982) to privilege equality over speech and I don’t think it is an accident that they included specific instructions on how to weight civil liberties provisions in case of conflicts between rights or freedoms.