More speech, not less

Editorial

Last month, the Supreme Court of Canada ruled on the case of William Whatcott, a now well-known activist obsessed with homosexuality, abortion and a range of other topics. Whatcott had been fined $17,500 by the Saskatchewan Human Rights Tribunal for distributing leaflets depicting homosexuality in terms that are not, let’s say, concurrent with liberal Canadian norms on the topic.

This was not the first time Whatcott has gained notoriety. He protests at abortion clinics and gay rights events. At one point, he organized a “Heterosexual Pride Day” in Regina. He has been repeatedly arrested but rarely charged for trespassing the “bubble” zones around abortion clinics.

Whatcott is a licensed practical nurse and, in 2005, the governing body of his profession in Saskatchewan suspended Whatcott’s nursing licence for 45 days and slapped him with a $15,000 fine for what they claim was intimidation of patients and staff at a Regina Planned Parenthood clinic. He picketed the site and reportedly called its employees “murderers, abortionists and disseminators of AIDS.” In that case, Whatcott claimed that, being off duty at the time, he was within the bounds of free expression. A judge disagreed and upheld the fine.

Whatcott has run repeatedly, and with wildly poor results, for provincial and municipal offices in at least three provinces.

But what seems to have assured Whatcott’s infamy is his emphatic attitude toward homosexuality. He has distributed, apparently single-handedly, thousands of leaflets with various graphic and inflammatory assertions on the topic. The adage that there is no fanatic like a convert may be applicable in this case, as Whatcott has acknowledged that he is a former drug addict who funded his habit by prostituting himself with men.

To his credit, Whatcott has not undertaken his “activism” anonymously. He has included his name and telephone number on his propaganda. His response to the vitriol he has received in response to his vitriol, in at least one public instance, is: “Tough, you live in a democracy.”

This may be the one area where we agree with Whatcott. However, the Supreme Court came down strongly and unanimously on the side of provincial legislation, like Saskatchewan’s, that limits free expression in the interest of human dignity.

In upholding the fine levied against Whatcott, the decision affirms Section 1 of the Charter of Rights and Freedoms, which “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It effectively affirms Canada’s hate speech laws as well. Section 318 of the Criminal Code of Canada bans “hate propaganda,” which it defines as “any writing, sign or visible representation that advocates or promotes genocide....” Section 319 prescribes fines or imprisonment up to two years for anyone who “incites hatred against any identifiable group.”

As journalists – and as Jews – we recognize that Canada is not the United States, with its premier constitutional amendment protection of almost unfettered free expression. Whatcott’s harassment of women seeking abortions (which was not at issue in the case) and his virulent abhorrence of homosexuality are repugnant. His defence attempted to make a distinction between criticizing the actions of homosexuals and criticizing homosexuals as a group. The parallel, in rather absurd translation, might be to declare that eating matzah and lighting candles on Friday night are despicable acts, but these acts do not make those who engage in them despicable as individuals or as a group.

Whatever merit this argument does or does not have, the court has affirmed the idea that Canadians are significantly constrained in what we say about identifiable groups. In theory, this is a fine attempt to ensure fair treatment for all. In practice, it falls short on some important issues of individual freedom.

More than just individual freedom, though, our view is that stifling expression with the force of law carries a dangerous potential for society.

First, it is desirable, in a democracy, to allow individuals the greatest level of freedom of expression possible, within the bounds of the safety of other people. Frequently, this belief has placed us in the position of being more “libertarian” on such issues than our friends in national Jewish organizations and, perhaps, more than most Canadians in general. But we subscribe to the idealistic view that it is up to people of good will to speak up against people of ill will, rather than for courts of law to enforce levels of discourse.

Second, also in a democracy, it is desirable to be aware of and to confront unpopular or dangerous ideas, rather than to force them underground where they may fester and mutate outside the public eye.

Third, while Whatcott was accused of purveying his ideas in a decidedly low-tech fashion – by printing and handing out leaflets – the reality is that expression is effectively ungovernable, with the Internet providing cover for anonymity and infinitely too many venues for police or human rights tribunals to do anything more than play whack-a-mole with offenders.

We do not pretend to offer Solomonic wisdom to the Supreme Court of Canada, which has tried to balance law, precedent, individual and group rights. Yet, we continue to maintain, both from a disposition to the freest expression possible as well as the reality that consistent legislating of public speech is not possible (even if it were desirable), that the answer to hate speech is not silence but more speech. Whatcott and others like him should be condemned in the court of public opinion, not in courts of law. We should not shut him down. We should speak up.

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