Democracy off Balance

Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada

STEFAN BRAUN
Copyright Date: 2004
Pages: 430
https://www.jstor.org/stable/10.3138/9781442673809
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  • Book Info
    Democracy off Balance
    Book Description:

    Freedom of expression on disturbing matters of society, history, and governance is becoming ever more contested in Canada. The idea that official meanings and histories can legally substitute for publicly constructed ones - for fear of what an uncensored public might themselves construct - is gaining widespread acceptance. Public invocation of hate propaganda law, its language, and its moral authority in otherwise ordinary discursive contexts, has been crucial to, and symbolic of, this trend.

    Democracy Off Balanceoffers an unsettling analysis of hate censorship and hate censors as a complex paradox of modern democratic discourse. Stefan Braun argues against the supposed public interest served by the hate speech laws and dissects the paradoxical forces - the politically self-contradictory thinking and the socially self-defeating assumptions - that drive hate censorship in Canada today.

    Braun draws on censors' own terms of social and political reference to show how they undermine their own causes with hate censorship and uncovers how hate speech law subtly impacts far beyond its strict legal confines to condition and corrode public discourse. He brings together the debate and the debaters in a multidimensional approach that challenges traditional ways of seeing the legal boundaries of freedom of expression.Democracy Off Balanceis a timely and absorbing exploration of a highly controversial topic.

    eISBN: 978-1-4426-7380-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-x)
  3. Acknowledgments
    (pp. xi-2)
  4. Introduction
    (pp. 3-11)

    In the last fifteen years, a legally unfettered right of public discussion on all matters of society, history, and governance has become ‘ever more contested’ in Canada.¹ The idea that official messages, official meanings, and even official histories may properly take the place of publicly constructed ones, for fear of what an uncensored public might themselves construct, is no longer confined to the margins of elite thinking or the edges of public policy. It finds its premier expression in a triad of ‘at-large’ speech offences (hate, pornography, discriminatory utterances),² in university speech codes,³ in civil actions against ‘discriminatory speech,’⁴ and...

  5. 1 Foundations of the Imbalance
    (pp. 12-33)

    Canada has not been untouched by the racial, ethnic, religious, and related animosities that have scarred democracy, poisoned social harmony, and subverted political stability elsewhere. Still, compared to most multiracial nations of the world, Canada has come to enjoy a relatively high degree of tolerance, social peace, and political stability. Were it not for the horrors visited on Europe from 1940 to 1945, one might almost forget that in the 1920s and 1930s Fascists in this country were busy attacking democracy and scapegoating Communists and minorities, especially Jews, for the social and economic ills of the nation.¹ More than any...

  6. 2 Functions and Assumptions of Freedom of Expression
    (pp. 34-61)

    The challenge to freedom of expression presented by hate censorship is formidable. Open-ended free speech theories or rights-based morally grounded ‘Dworkinian’ rationales¹ that may be persuasive in some other public silencing contexts have not servedthisone well (a human or moral right to openly propagate hate?). If the free speech side is to meet the ‘theoretical’ challenge of hate speech law head on, it must do so on censors’ own functionally reductionist terms of social and political reference. This chapter adopts a functionally anchored intersubjective theoretical approach.² I consider the functions and assumptions of freedom of expression not in...

  7. 3 Functions and Assumptions of Hate Propaganda Law
    (pp. 62-86)

    Chapter 1 explored how the court in Keegstra adopted an asymmetrical balancing methodology that a priori rejected the abstract in favour of the concrete. Hate propaganda law was enacted to prevent ‘tangible’ not ‘theoretical’ injuries. Yet even on its own self-limited terms of reference, the court did not do a very good job of ‘balancing.’ The functions of hate propaganda law are socially multifaceted and politically multidimensional - to promote inclusion, equality, community, multiculturalism, harmony, and strong democracy. This is a complex and unwieldy ‘package of social and political aspirations,’ concealing often conflicting and self-conflicting choices. The case for hate...

  8. 4 The Political Dilemma, Part I: Legally Definable and Politically Defensible Hate Censorship
    (pp. 87-120)

    This chapter explores the balancing dilemma from the perspective of the politics of hate censorship in practice. My purpose is to bring a conceptually overlapping but analytically distinctive perspective to bear on the themes explored in the previous two chapters. I unwrap the dilemma of reconciling legally definable with politically defensible hate censorship from three overlapping perspectives on the politics of hate speech repression in Canada: the politics of content, the politics of victimhood, and the politics of fixing social right. I have two related goals: first, to contextualize and concretize the political dilemmas of the practice of hate censorship...

  9. 5 The Political Dilemma, Part II: The ‘Slippery Slope’
    (pp. 121-142)

    History that has gone by can be judged. History that has still to be made and is yet to unfold cannot be. Contemplating the future is not risk free. There are many unforeseeables. Yet contemplation must avoid speculation. Speculation is ‘unscholarly.’ The line between speculation and scholarship is a difficult tightrope to walk. But in the debate over hate propaganda law, contemplating the future is unavoidable. Repressing hate is all about prevention, and prevention is all about the future. Opponents of hate censorship can no more avoid contemplating the future than proponents of hate censorship can. Over time, how is...

  10. 6 The Pragmatic Dilemma: Hate Censorship That ‘Works’
    (pp. 143-175)

    Politics contextualize the dilemma of hate repression. Politics is about the ‘how’ of silencing hate. But the ‘how’ of silencing hate is more than just politics. It is also a practical question. It is about not just what is or might be but also what can and cannot be. Defensible hate censorship needs to do two things. First, it must beeffective. Second, it must besuccessful. Proponents of hate law use the two concepts interchangeably, but they are not interchangeable. Effective hate censorship would fully silence the message of intolerance. Successful hate censorship would further the deeper social goals...

  11. 7 The Jurisprudential Dilemma: The Exceptions Defence and Democratic Justification
    (pp. 176-194)

    This chapter explores the balancing dilemma from a defining Jurisprudential perspective - that of the ‘exceptions defence.’ Censors argue that in no country in the world is freedom of expression absolute - even in the United States. There are many well-worn legal exceptions to freedom of public expression in consolidated representative democracies. Increasingly, hate propaganda law is defended not simply as a legal exception to freedom of expression consistent with other wellworn legal exceptions but as a particularly democratic one. But is it? A well-balanced jurisprudence of exceptions to freedom of expression should be both legally coherent and politically defensible....

  12. 8 Alternative Juridical Balances and Balancing Juridical Alternatives
    (pp. 195-215)

    Canadian courts have accepted the challenge to balance rights in the cause of tolerance, diversity, and social progress by legal silencing. Courts are practical institutions. Their task is not to bridge deficiencies of hate censorship in theory but to bridge them in working practice. The current balance struck inKeegstraand the thinking underlying it does not bridge these deficiencies very well either in theory or practice. Pressure for more expansive and expandable censorship threatens to widen the gap between what is, or can be, and what is expected and worsen the deficiencies further. How this will play out depends...

  13. 9 Alternative Measures: Towards a Less Self-intrusive Balance
    (pp. 216-255)

    Censors’ trust that hate speech law can do the social work expected in the democratic context premised, as anordinaryfeature of democratic discourse, is theoretically deficient and functionally flawed. Exceptingextraordinaryconditions that may afflict even consolidated representative self-governments, hate censors undermine their own cause in the very process of promoting it through hate censorship. The more effectively they silence, the more they undermine their own cause. What, then, are the alternatives to censoring hate, in ordinary times?¹ Do the alternatives leave society ultimately ‘defenseless’ against public prejudice, social injustice, and ‘abuses of power by the powerful,’ as suggested...

  14. Conclusion
    (pp. 256-264)

    Thinking on hate censorship in Canada today enjoys a rather dubious distinction - an unplanned but no less unholy alliance between elite, popular, and juridical wisdom. Since the Cohen Committee came out with its limited remedy and its chary recommendations for protecting the polity from future harm, much has changed both in how hate is expressed and in thinking about its repression. Today, rival ethnic groups, social activists, influential academics, public institutions, and even racists and bigots look to the club of hate silencing as a legitimate substitute for the ‘word.’ The idea that a democracy cansuccessfullysafeguard the...

  15. Appendix
    (pp. 265-266)
  16. Table of Cases
    (pp. 267-270)
  17. Table of Legislation
    (pp. 271-272)
  18. Notes
    (pp. 273-354)
  19. Select Bibliography
    (pp. 355-366)
  20. Index
    (pp. 367-384)