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- Title
Beyond the Hate Speech Law Debate: A "Charter Values" Approach to Free Expression.
- Authors
Macfarlane, Emmett
- Abstract
Debates over what to do about hate speech continue to rage, in contexts that range from social media to campus speech. That legal restrictions on hate speech remain controversial despite major Charter cases upholding Canada's anti-hate speech laws reflects a number of issues, including: the effectiveness of anti-hate speech laws; the evidence about, and diffuse nature of, the harms involved in hate speech that falls short of targeted harassment or incitement of violence; the high threshold the Supreme Court has drawn for identifying when hateful speech crosses the line into unlawful hate speech; and the authorities' tendency to censor or suppress speech, especially when censorship is wielded against members of oppressed groups. This article argues in favour of a "Charter values" approach to free expression that seeks to enhance the expressive freedoms of individuals and groups subjected to historical and ongoing forms of oppression. After analyzing the Court's approach to assessing Canada's hate speech laws, this article contends that debates over the legitimacy and effectiveness of hate speech laws, which apply to such a miniscule number of relevant instances of hateful speech and falsely pit free expression against equality, distract us from properly remedying one of the most pressing consequences of hate speech: the impairment of human dignity and the sense of belonging of targeted groups within our society. Instead, a Charter values approach imposes obligations on relevant institutions to take positive action to enhance and protect the expressive freedom of oppressed groups. Rather than an approach that falsely "balances" equality rights and other sections of the Charter, like section 27, against free expression, the approach advocated here seeks to strengthen all of those rights and values by ensuring that targeted groups cannot be silenced by harmful or offensive speech and that their sense of belonging and status within the community is promoted and ensured.
- Subjects
CANADA; HATE speech laws; FREEDOM of expression; HATE; HATE speech; INCITEMENT to violence; CHARTERS; SELF-censorship
- Publication
Review of Constitutional Studies, 2022, Vol 26/27, Issue 2/1, p145
- ISSN
1192-8034
- Publication type
Article