Exactly one year ago yesterday, a mosque in the Québec town of Saguenay was vandalized with what the vandals claimed was pig blood. The attack was clearly intended to show Muslims that they were not welcome in Saguenay (and perhaps in Québec generally), which is, according to Jeremy Waldron, precisely “the harm in hate speech” which criminal law can and ought to combat. Despite this, I argued at the time that “the harm is not in hate speech,” because an isolated incident of this sort does not send much of a message. What does, by contrast, is xenophobic discourse by politicians ― such as that which was used by members of Pauline Marois’ PQ government to justify Québec’s infamous “values Charter.” As I wrote then,
[b]ecause it comes from on high, [such discourse] does much more than a lone attack to tell minorities that they are not welcome in Québec, and to tell those who would exclude minorities from public life that they are not alone. But, because these messages are being sent by sophisticated, intelligent people, they look and sound nothing like the crude mosque attack. They would not, of course, qualify as hate speech by any standard …
A year on, the PQ has been thoroughly defeated at the polls, and Québec is a very different place as a result, as Jonathan Kay observes in an insightful column in the National Post. He notes that
[d]uring the 18-month Marois reign, even the most petty ethnic or linguistic dispute became grist for widespread anxiety and bitterness — because the PQ was desperate to seize on any pretext to fire up the nativists and separatists who comprised its core supporters.
As a result, many members of minority communities were considering leaving the province. As the zealots of “secularism” pontificated about the incompatibility of “ostentatious” religious symbols and “Québec values,”
the shrill nastiness of Ms. Marois and her administration seeped into the everyday life of ordinary Quebecers. On the subway, in restaurants, at gas stations, interactions between English and French, Jew and gentile, Muslim and non-Muslim, became more fraught.
Religious minorities in Québec were suffering precisely the harms prof. Waldron associates with hate speech ― a feeling of being unwelcome, of being second-class citizens, of having to hide their identities and beliefs. (Indeed, Mr. Kay points out that even members of the majority group who did not support the “values Charter” were made to feel these things to some extent, by being labelled as traitors of sorts.) But of course nothing that Ms. Marois or her henchmen said ever reached the threshold of “hate speech.” There was no need for that. We all understood what was going on.
Conversely, as Mr. Kay points out, now that there is a different government, which is not much interested in identity politics, attempts to re-ignite the toxic flames of linguistic wars, or even occasional outbursts of outright xenophobia (such as a notorious journalist’s anti-Semitic comments), are not having the same effect. Because they have no support among the authorities, they do not provoke anything like the same anxiety. Yet Mr. Kay is to point out that “the only reason that such kooks can be written off as ‘irrelevant’ is that Pauline Marois’ Parti Québécois got the boot in April’s provincial election.”
The story of Québec in the last year shows, I think, where prof. Waldron’s work on hate speech is right, and where it is mistaken. Prof. Waldron identifies an important preoccupation that members of a liberal, welcoming society should share: we should all seek
to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.
But he goes wrong by identifying hate speech as the pressing threat to this objective, and criminal law as the means to address it. The harm, once again, is not in hate speech. What really undermines the assurance which prof. Waldron rightly says is important are not the extreme vituperations of a few kooks, but an embrace of a xenophobic discourse by the powerful, regardless of whether it raises to the level of hate speech. And because the category of speech that is problematic in this way if coming from the mouth of authority is much broader than that of hate speech, criminal law cannot be the solution. The problem is one of political morality, and the solution must be found in the same realm.