December 02, 2003, 9:10 a.m.
“You Can’t Say That”
Canadian thought police on the march.

By David E. Bernstein

I've had the good fortune of spending this past month on the road promoting my new book about how anti-discrimination laws are eroding civil liberties. At the end of a recent talk about the book, an audience member asked whether I believe that freedom of expression is really at risk in the United States from laws meant to aid women and minorities. The heart of my response is, "Look at what's happening in Canada. If we don't watch out, we're next."

The decline of freedom of expression in Canada began with seemingly minor and understandable speech restrictions. In 1990, the Canadian supreme court upheld the conviction of James Keegstra, a public-high-school teacher, for propagating Holocaust denial and anti-Semitic views to his public high-school students, despite repeated warnings from his superiors to stop. Keegstra was convicted of the crime of "willfully promoting hatred against an identifiable group," which carries a penalty of up to two years in jail. Criminalizing hate speech, the court stated, was a "reasonable" restriction on expression, and it therefore passed constitutional muster.

Two years later, the same court held that obscenity laws are unconstitutional to the extent they criminalize material based on sexual content alone. However, any "degrading or dehumanizing" depiction of sexual activity — including material that the First Amendment would protect in the United States — was deprived of constitutional protection to protect women from discrimination.

Even the most zealous advocates of freedom of expression often feel uncomfortable defending the right to engage in Holocaust denial or to propagate degrading pornography. But, not surprisingly, the inevitable result of allowing these initial speech restrictions has been the gradual but significant growth of censorship and suppression of civil liberties across Canada.

In many cases, the speech that is suppressed conflicts with the Canadian government's official multiculturalist agenda, or is otherwise politically incorrect. For example, the Canadian supreme court recently turned down an appeal by a Christian minister convicted of inciting hatred against Muslims. An Ontario appellate court had found that the minister did not intentionally incite hatred, but was properly convicted for being willfully blind to the effects of his actions. This decision led Robert Martin, a professor of constitutional law at the University of Western Ontario, to comment that he increasingly thinks "Canada now is a totalitarian theocracy. I see this as a country ruled today by what I would describe as a secular state religion [of political correctness]. Anything that is regarded as heresy or blasphemy is not tolerated."

Indeed, it has apparently become illegal in Canada to advocate traditional Christian opposition to homosexual sex. For example, the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix and Hugh Owens to each pay $1,500 to each of three gay activists as damages for publication of an advertisement, placed by Owens, which conveyed the message that the Bible condemns homosexual acts.

In another incident, after Toronto print-shop owner Scott Brockie refused on religious grounds to print letterhead for a gay-activist group, the local human-rights commission ordered him to pay the group $5,000, print the requested material, and apologize to the group's leaders. Brockie, who always accepted print jobs from individual gay customers, and even did pro-bono work for a local AIDS group, is fighting the decision on religious-freedom grounds.

Any gains the gay-rights movement has received from the crackdown on speech in Canada have been pyrrhic because as part of the Canadian government's suppression of obscene material, Canadian customs frequently target books with homosexual content. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores.

Moreover, left-wing academics are beginning to learn firsthand what it's like to have their own censorship vehicles used against them. For example, University of British Columbia Prof. Sunera Thobani, a native of Tanzania, faced a hate-crimes investigation after she launched into a vicious diatribe against American foreign policy. Thobani, a Marxist feminist and multiculturalism activist, had remarked that Americans are "bloodthirsty, vengeful and calling for blood." The Canadian hate-crimes law was created to protect minority groups from hate speech. But in this case, it was invoked to protect Americans.

A great deal more censorship in Canada seems inevitable. For example, British Columbia's extremely broad hate-speech law prohibits the publication of any statement that "indicates" discrimination or that is "likely" to expose a person or group or class of persons to hatred or contempt. The Canadian thought police are on the march. Hopefully, it is not too late to stop them.

— David E. Bernstein is a professor of law at George Mason University and the author of You Can't Say That! The Growing Threat to Civil Liberties from Anti-Discrimination Laws.

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