Hate, Dignity, and Law

For those who are not yet sick and tired of my expostulations on the subject, I venture some concluding thoughts on the criminalization of hate speech, and on Jeremy Waldron’s argument in support of such criminalization. My previous posts on the topic are here, here, here, and here.

Prof. Waldron argues that hate speech must be got rid of, by way of criminalization, in order to protect human dignity. Hate speech, or at least written, “semi-permanent” as he puts it, expression of hate undermines the “assurance” that a decent society ought to give each of its members that he or she will be accepted as a human being and indeed as a full member of the society in question. The conception of dignity in play here is that which ties it to status: human dignity is the high status that each of us enjoys by virtue of belonging to mankind. (Prof. Waldron developed this conception of dignity in his Tanner Lectures given at Berkeley in 2009 and available here.) Tolerating hate speech means tolerating denials of this high status for some members of the community, which a decent society shouldn’t do.

But this conception of dignity is not the only one out there, as prof. Waldron himself often points out. And although he is right that one of the ways the law protects human dignity is by upholding status as citizens and rights-bearers, it also protects dignity in other ways. Arguably, one of them, as he pointed out today in the seminar discussion of his work on hate speech, is by protecting freedom of speech. The idea of human dignity points to a vision of the human being as having, potentially, something to say―and being entitled to say it. Speech is one of those things that distinguish man from beast, and prohibiting a human being from saying what he wants is, after a fashion, a way of treating him or her as devoid of this essential human trait. So those who resist the criminalization of hate speech on freedom of speech grounds have a dignitarian card of their own to play.

But there is yet another way in which law protects dignity―and here I am deliberately taking on board the title of a great essay by prof. Waldron, “How Law Protects Dignity.” As he argues in that essay and in others, and as Lon Fuller argued in his classic book The Morality of Law, the law protects human dignity by its very nature, because governance through law is necessarily a recognition of the human beings’ capacity for taking responsibility for their own lives, whether by planning them, by applying to themselves the rules by which their community expects them to live, or in other ways. The law recognizes these capacities by laying down clear, stable, and intelligible rules for the future, so that people can plan their lives taking these rules into account, and follow them without, for the most part, having to be prodded by governmental coercion.

When the law does not give people this ability, it fails to respect their dignity. It does so, for example, when it is retroactive―when new rules are applied not to future behaviour, which can be planned to comply with them, but to past actions which could not have been so planned. More to the point, the law also fails to respect people’s capacity for understanding, planning, and self-application of rules when it is so unclear that even a reasonably diligent person cannot know what the law means or whether it applies to what he or she is about to say or do. Of course no law is perfect in this respect. Law is often complicated. We often need professional help to figure it out. This is not always the case though, and the prohibitions of criminal law, especially, are often intuitive enough. In any event, success and failure here are matters of degree. Being human, we must learn to live with imperfection. But there is only so much imperfection that we should have to put up with.

I think that hate speech laws, perhaps especially the sort of hate speech doctrine advocated by prof. Waldron, do not reach the threshold of minimal clarity to be tolerable in a society that respects human dignity. I won’t repeat here all the arguments I made in yesterday’s posts. Suffice it to say that “hate speech,” as prof. Waldron interprets the idea, is so helplessly vague that it would be fiendishly difficult to say whether a critical statement about a group or its members comes within its scope. Prof. Waldron’s attempts to clarify the notion of hate speech by equating it with group defamation, or to limit it by distinguishing attacks on dignity from mere offence, and denigration of belief from denigration of believers do not work. And if he cannot make them work, I don’t know who can.

The criminalization of hate speech would, in an important way, fail to achieve its stated objective―the protection of human dignity. In the name of protecting the dignity of a few people whose standing in society is called in question by hate speech―and they are bound to be few, in a society decent enough to be thinking about the best way to ensure that all of its members are included―criminalization would undermine the dignity of all.

Offence and Defence

I come to the third and final part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech, a book that extends the Holmes Lectures he delivered at Harvard a few years ago. I addressed his attempt to define hate speech as group libel here, concluding that it was not successful. I further argued that his justification for criminalizing hate speech, namely that doing so was necessary to give citizens assurances that their dignity would be respected, was unpersuasive, and that this criminalization would impose significant restriction on freedom of speech. Although he does not think that prohibiting free speech, properly understood, would have this effect, prof. Waldron also worries about that his claims might be made to say more than he means and used to advocate restrictions on speech more far-reaching than he would countenance. Accordingly, chapter 5 of his book, “Protecting Dignity or Protection from Offense,” argues against confusing the prohibition on hate speech with a much broader, and unjustified, prohibition on speech that is merely offensive.

The distinction between indignity and offence can be subtle and difficult to draw, but it is important and, prof. Waldron contends, the law can in fact draw it. In a nutshell, the difference is that although a person whose dignity is attacked will naturally feel hurt and offended, “[t]hat someone’s feelings are hurt is more or less definitive of offense, but it is not definitive of indignity.” Indignity has an objective component. As prof. Waldron argued earlier, it happens when a person’s membership in society or fitness for citizenship is denied―regardless of what that person thinks about such a denial. Offence, by contrast, is a subjective reaction. The two can go together, but offence is not indicative of indignity. In cases of doubt though, we should stay on the “liberal” side―that is, we should avoid censorship.

I think this is an interesting distinction; it helps us clarify our thinking. But, as I will argue shortly, it is not quite enough. There are many cases where the distinction becomes blurred. And in my view prof. Waldron does not pay enough attention to the problem of chilling effect in such cases. If it is not clear what side of a subtle distinction that demarcates the permitted from the criminal a statement falls on, speakers will fear to make it, even if a court would finally find that there is nothing wrong with it. When it comes to free speech, clear rules are arguably more important than in other areas of the law, where we can live with somewhat uncertain standards.

Much of prof. Waldron’s argument is devoted to the problem of claims by religious believers that this or that unflattering statement about their beliefs, or a (derisory) representation of something or someone sacred to them amounts to “defamation of religion” or hate speech and ought, therefore, to be prohibited. In his view, such reactions are usually driven by feelings of offence, which are not entitled to the criminal law’s solicitude. The statements that provoke them do not break the assurance of acceptance that must be given to all citizens. It is quite permissible, and indeed normal, for citizens of a democratic polity to attack their fellows’ beliefs. So long as the attack is indeed directed at belief, there is nothing wrong with it. It does become impermissible, however, when it extends to persons. Taking an example from politics, prof. Waldron says that while it is fine for him to criticize Tea Party policies as dangerous and irresponsible,

it would be inconsistent with the respect demanded by their status as citizens to publish a claim, for example, that Tea-Party politicians cannot be trusted with public funds or that they are dishonest. …   [T]hat would be a scurrilous attack on what I have called their elementary dignity in society.

It is the same with religion. It’s all right to say that a belief is absurd, so long as one doesn’t deny the believer’s humanity and citizenship.

I have sympathy for the distinction prof. Waldron is making here. I have defended something like it here, arguing that we can call our political opponents idiots, but really shouldn’t call them traitors. But while I think that we should try to keep to this rule as a matter of morality, I wonder if it is fair to hold us to this high standard as a matter of law.

More importantly, I think that the distinction between criticism of the belief and that of the believer collapses in many cases. When we say―as, for example, atheists often say of religious people―that another person’s belief is not only mistaken, but absurd and irrational, we are no longer only criticizing the belief in question. We are also saying that the believer is the kind of person who can believe irrational things―and to my mind, that is, at least a suggestion that he or she is also a less than fully fit to be a citizen. It is not different, it seems to me, from a claim that, say, people of a certain race have lower IQs than others, a claim that prof. Waldron would surely classify as hate speech. An irrational person ought not to be trusted with public funds any more than a dishonest one―and to cast aspersions of dishonesty on a group’s members because of their membership is, prof. Waldron says, “scurrilous.” And there are examples of what we now view as indisputable religious bigotry that presented itself as a legitimate concern about beliefs; anti-Catholic prejudice, for instance, which was justified by the argument that Catholics, because of their belief in the Pope’s supremacy in matters of religion, were loyal to a “foreign potentate” rather than their nation.

Prof. Waldron makes a gallant attempt to limit the scope of the prohibition on hate speech which he advocates, but I don’t think that he successfully defends it from the charge of overbreadth. The distinction he draws would prevent the criminalization of some sorts of blasphemy, for instance, but not all. At the very least, it would be exceedingly difficult to implement and would have significant chilling effects.

I add that, though I have been critical of prof. Waldron’s book in these posts, it is still a very rich and interesting work. Even at this horrible length, for which I apologize, I have not done it justice, though I hope I have been fair to it.

Hate and Disagreement

This is the second part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech. I addressed his attempt to define hate speech as group libel here. That attempt was not successful, I concluded, but that need not mean that we should not be criminalizing hate speech, regardless of its relationship with libel. The core of the case for criminalizing hate speech is presented in chapter 4 of prof. Waldron’s book, “What Does a Well-Ordered Society Look Like”. In a nutshell, the argument is that hate speech must be prohibited in order 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.

Prof. Waldron starts off by drawing a horrible picture of a society that does not prohibit hate speech:

Its hoardings and its lamp-posts may be festooned with depictions of members of racial minorities characterizing them as bestial or subhuman. There may be posters proclaiming that members of these minorities are criminals, perverts or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to disappear.  There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. There may be signs indicating that the members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain.  That is what a society may look like when group defamation is permitted.

These visible expressions of hatred are “world-changing.” They signal to their targets that they are unwelcome; they make it harder for them to go about their daily lives and to integrate in society. That’s not an accident―it’s the very purpose of hate speech. And so a decent society should not look like that. It ought to make sure that its members know that they belong there and are accepted by all other members. Even if its members do not yet agree on the details of what justice requires, they must agree on the basics,

the most elementary fundamentals of justice—that all are equally human, and have the dignity of humanity, that all have an elementary entitlement to justice, and all deserve protection from the most egregious forms of violence, exclusion, indignity and subordination.

And it is not only the government that must signal its adherence to these principles. Individual citizens share this burden too, because the law depends on self-application by citizens, and knowing that even a few are prepared to break it out of hatred is enough to feel unwelcome, less than a full member of society.

I am not persuaded by prof. Waldron’s argument. Indeed, what I find most striking about it is how it breaks with the usual Waldronian insistence on the pervasiveness of good-faith disagreement and, notwithstanding such disagreement, the trust that we ought to have in our fellow-citizens. These arguments are at the heart of his rejection of judicial review of legislation―and I know, from conversation with him, that he still very much adheres to them in that context.

Yet his dystopian vision of a society that fails to criminalize hate speech is in sharp contrast with his optimism about a “core case” society where, though citizens are committed to respecting each other’s rights even though they disagree about what those rights are. And, importantly, the “core case” society is not a Utopian fiction―prof. Waldron thinks that real polities, such as the United Kingdom, the United States, and (presumably) Canada fit the bill. I’m not sure he is quite right about that. But what I do know is that, despite not criminalizing hate speech, the United States look nothing like the paradise of hatred that he depicts. (Nor does prof. Waldron say that they do, I hasten to add.) To be sure, they did once look a lot more like that bleak vision than they do now. But it is noteworthy that even as they have become a lot more inclusive, they have come to regard the outlawing of hate speech as constitutionally impermissible.

Prof. Waldron argues that a decent society must be unanimous in agreeing on “fundamentals of justice.” So we lose nothing much by making it impossible to have an open and courteous debate between a liberal and a Nazi. Hate speech―statements that deny some people the membership in society―simply does not deserve to be heard or, more to the point, since prof. Waldron is concerned with the written rather than the spoken word, seen. But there are more hard cases than he allows. He says we must agree on the equal humanity of all. But what foetuses? Is the view that abortion should be legal akin to a statement that genocide is permissible? Some people think so. Others don’t. The Waldron of Law and Disagreement celebrates this fact. The Waldron of The Harm in Hate Speech ought, I think, to be embarrassed by it. And things quickly get more complicated if we move from the absolute minimum of agreeing that we are all human to what he said was the purpose of banning hate speech in the previous chapter―a recognition of the high dignity of citizenship. Are calls for making naturalization more difficult attacks on that dignity? What about an argument that convicted criminals should not have the right to vote? We may find such arguments distasteful, but I do not think that they are so beyond the pale that we lose nothing at all by making it impossible for them to be aired.

So I don’t think that we stand to gain nearly as much as prof. Waldron says from prohibiting hate speech. Nor do I think that we stand to lose so little as he believes from doing so. That is especially so because of the difficulty of confining the prohibition to some manageable standard and to avoid having it encompass all sorts of speech we wouldn’t want to prohibit. I will turn to prof. Waldron’s attempt to deal with an aspect of that problem in the next post.

Hate Speech and Group Libel

As I promised yesterday, I want to share a few thoughts on some arguments that Jeremy Waldron makes in The Harm in Hate Speech, his book making the case for criminalizing hate speech. (Prof. Waldron’s Holmes Lectures, from which the book grew, were published in the Harvard Law review, and are available here.) I will address the main arguments of chapters 3, 4, and 5 of the book, which are, respectively, that “hate speech” should be understood as a form of group libel, that criminalizing it serves to give members of minority groups the assurance that they will be treated as equal citizens, and that while aiming at denials of dignity, the criminalization of hate speech does not and should not protect from offence. For the sake of readability, I will devote a separate post to each of these claims. This one deals with the equation of hate speech and group libel.

“Hate speech” is a notoriously slippery phrase. But, says prof. Waldron, we can go back to a different one, that was used, for example, in Beauharnais v. Illinois, 343 U.S. 252 (1952), to understand what we really ought to get rid of: “group libel.” What we want to get at are  written statements denigrating members of certain groups qua members of groups in ways that make them appear unworthy of the dignity of citizenship or, perhaps, more broadly, membership in society. Just as defamation law generally is concerned with unjustified deprivations of reputation inflicted on individuals by a falsehoods that tend to lower them in the estimation of right-thinking people, group libel is concerned with deprivations of reputation inflicted on individuals―not groups―but by making their membership in certain groups appear to make them unworthy of citizenship. And while a person can only recover damages in a civil defamation suit if he or she is identifiable as the target of a defamatory statement, criminal prosecution of group libel does not require any specific person to be targeted, because the state can justly take up the cause of all the members of the targeted group.

But there are several problems with prof. Waldron’s attempt to tie the prohibition on hate speech with the law of libel. For one thing, I do not quite understand his focus on libel (written defamatory statements) as opposed to slander (oral defamatory statements) and thus defamation generally. Prof. Waldron says that the written word has a permanence and a visibility that the spoken word lacks, and is therefore more injurious. I doubt that this is so. Take anti-Semitism. I’m pretty sure that word-of-mouth calumny contributed much more to it than, say, The Protocols of the Elders of Zions, or any other such screed, which relatively few people read. What was much more harmful was the casual prejudice of a majority who never did.

Another set of difficulties involves the differences between the law of defamation, whether libel or slander, and the prohibition on hate speech that prof. Waldron defends. A first difference concerns sort of statements that he would criminalize under the heading of group libel. Defamation law normally distinguishes statements of fact and opinion, the latter enjoying qualified immunity. But prof. Waldron explicitly refuses to make that distinction. He also says that statements such as “no Blacks allowed” are a form of group libel too, since they deny the equal membership of their targets in society, yet statements of this sort―distasteful as they are―are not defamatory, because they are not lies.

In another way though the scope of the prohibition on hate speech, as prof. Waldron envisions it, is narrower than that of defamation law. The latter imposes liability for all sorts of negative statements―not just those that present their targets as unfit for citizenship or membership in society. Prof. Waldron is only concerned with the statements of that sort. The reason is that, for him, the purpose of criminalizing hate speech is the protection of human dignity, which he takes to mean (among other things) the equal high status of every person as a rights-bearer and member of society. I have no quarrel with that understanding of human dignity, but it is not what underlies defamation law; defamation law is concerned with the protection of reputation, and fitness for citizenship and social membership is not the only thing that matters for a person’s reputation.

Finally, unlike the law of defamation, the criminalization of hate speech, at least as it is usually implemented―and I do not understand prof. Waldron to be advocating for something different on this point―only proscribes statements targeting a certain number of groups, usually defined by innate and/or relatively unchangeable characteristics (such as race, gender, sexual orientation, etc.). Defamation law, by contrast, might have started out as a mechanism for protecting the rich and powerful, but now it protects everyone. And it is not clear why hate speech law would not. If the worry is that racist statements will make racial minorities appear to  lack the rights that the majority has, should we not worry in the same way about statements such as “police are scum”? For some people at least, such statements actually imply that members of the police are inferior, morally deficient, and perhaps deserve to be deprived of rights. Should such statements be criminalized? They are in some places―Russia is one, and of course it uses the criminalization of the stirring of hatred against “identifiable social groups” as a means of political repression. But if we don’t want to follow that dubious example, we need a distinction, an explanation for why denigration of some groups is prohibited while that of others is not. The law of defamation is not a place where such a distinction can be found.

In short, I think that prof. Waldron’s attempt to define hate speech as group libel is quite weak. There are important differences between the two concepts. Now this, without more, does not mean that he is wrong that criminalizing hate speech is a good idea. But if it is, it has to be justified on its own terms, without reference to the (perhaps) less contested defamation law; that reference is only a distraction. I turn to prof. Waldron’s justification of hate speech law in the next post.

The Rear-Guard of Hatred

I am reading parts of Jeremy Waldron’s book on The Harm in Hate Speech, in which he argues that hate speech can and should be criminalized to uphold the dignity of all the members of society. I will have more detailed thoughts on it later, probably tomorrow. But for now, just an observation that has relatively little to do with prof. Waldron’s argument.

People who argue that hate speech should be prohibited often see it as a first warning of impending social breakdown; those who engage in it are regarded as the vanguard of advancing prejudice. Prof. Waldron is something of an exception here, as I will explain in forthcoming posts. But for most proponents of prohibiting hate speech, such prohibitions are hoped to be a way of stopping this advance in its tracks. Yet when we look at the actual hate speech cases, we notice that they involve not the vanguard of hatred, but its rear-guard. Consider the petitioner in Beauharnais v. Illinois, 343 U.S. 252 (1952) who wanted to prevent African-Americans from moving into white neighbourhoods; the  respondent in R. v. Keegstra, [1990] 3 S.C.R. 697, who taught his students to be anti-Semites; most recently the respondent in Lund v. Boissoin, 2012 ABCA 300, a case about which I blogged here, who published a homophobic rant in a newspaper. They were all clinging to old prejudices―prejudices that were, by the time they were charged, in retreat. To be sure, they could yet fight, and inflict some damage. Anti-Black racism was not dead in the 1950s, nor indeed is it now, nor are anti-Semitism and homophobia. But they are fatally wounded. They are things of the past, losing ground with each passing year.

I stand to be corrected of course. If you have examples of prosecutions that tried to stop the rising, rather than hurry the ebbing tides of hatred, I’d be happy to revise my views. But I doubt that there are such examples. The phenomenon I am describing is not an accident. When a prejudice is new, it is difficult for legislators, prosecutors, and courts to recognize its danger. We know that prejudice is dangerous when it has had bad effects in the past, so hate speech laws protect groups that have historically been the victims of prejudice and hatred, on the expectation that prejudice and hatred might continue in the future. But of course the very fact that such laws are enacted shows that the majority of the population, or at least a considerable part, sufficient to elect a majority of legislators, has given up on these particular sorts of prejudice, in intent if not altogether in its day-to-day life. Prosecutions under such laws are bound to be rear-guard battles.

And this, I believe, is something we ought to take into account when we think about the usefulness of prohibitions on hate speech. If the law is only ever going to catch the rear-guard, rather than vanguard or the main body of the army of hatred, is it worth the sacrifice of freedom of speech that it necessarily entails?

The Confusion in Hate Speech

The Alberta Court of Appeal delivered an interesting decision on the meaning and application of prohibition on “hate speech” in the province’s human rights legislation. The case, Lund v. Boissoin, 2012 ABCA 300, concerned the publication in a Red Deer newspaper of a letter to the editor urging citizens to resist “the homosexual agenda”, and in particular the teaching of homosexuality’s acceptability in schools. The letter was intemperate and offensive. Two weeks after its publication, a gay teenager was attacked in Red Deer. Outraged by the letter and the attack, an activist brought a complaint against the author of the letter and an organization of which he was the head to the Alberta Human Rights and Citizenship Commission, saying that it contravened the provision of Alberta’s human rights legislation that prohibits publishing or causing the publication of a statement “likely to expose a person or a class of persons to hatred or contempt” on the basis of a personal characteristic, such as sexual orientation. Eventually, a tribunal found in the complainant’s favour, and ordered the respondents to apologize and to pay damages. That decision was then overturned by the Court of Queen’s Bench. The complainant appealed.

Importantly, the parties did not raise constitutional issues on appeal. The court suggests quite strongly that these issues deserve to be debated. It wonders whether the hate speech prohibition is intra vires the province, in light of the “Implied Bill of Rights” cases holding that Parliament has the exclusive power to regulate (political) speech, and whether they are in keeping with the Charter’s guarantee of freedom of expression. But since the parties do not argue these issues, the court cannot decide them, much as―one suspects―it would like to. As McGill’s prof. Fabien Gélinas writes in a paper on “Virtual Justice and the Rule of Law,” “in all but the exceptional cases, [the judge] can only answer those questions that someone cares to ask him―which are not by any means always those which he yearns to answer.”

Proceeding on the basis that the statute is constitutional, the court nonetheless must interpret it to decide what “expos[ing] a person or a class of persons to hatred or contempt means.” It must also interpret an exception to the general prohibition on publishing statements having that effect, which provides that “nothing” in the prohibition “shall be deemed to interfere with the free expression of opinion on any subject.” And it must decide whether the respondent’s letter fits the scope of the prohibition and the exception.

On the interpretation of the general prohibition, one issue was whether, in order to come within its scope, speech had to have some sort of nexus to actual discrimination or infringement of human rights. The judgment below reached this conclusion, and the provincial Attorney General, who intervened, supported it. But the Court of Appeal rejects it firmly, holding that it had no basis in the language of the statute. The narrower interpretation is the result of a “reading down” of the statute, a narrow reading designed to preserve its constitutionality where a broader one would be unconstitutional. But here there is no conclusion―though there is doubt―that the broader, “plain” reading of the legislation is unconstitutional, so the reading down is uncalled for. The other issue, of course, is the meaning of the phrase “hatred or contempt.” Relying the Supreme Court’s interpretation of the same words in equivalent federal legislation, the Court of Appeal finds that it must be a narrow one, encompassing only extreme ill-will.

Applying this interpretation to the respondent’s letter, the Court holds that it does not reach the level of extremeness prohibited by the statute. A statement alleged to expose people to hatred or contempt must be considered in context. In particular, it is important to keep in mind that in a free society, it is permissible to express opinions on the morality of others’ behaviour―and thus to say that a person’s behaviour is immoral. Here, the context was a live public debate on the appropriateness of schools’ teaching children about homosexuality. As part of this debate, an independent newspaper concluded that the views the letter expressed deserved to be brought to the public’s attention―and that the readers’ critical response to it would be enough to promote tolerance. Thus

“[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities” (par. 70).

It is also the expression of an opinion on the morality of certain behaviour, which is a matter of public debate.

“Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech” (par. 72).

Ultimately, says the court, reasonable people will differ about what amounts to hate speech and what doesn’t. But in its view, the respondent’s letter is nothing more than “an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have” (par. 77).

Although it thus concludes that the letter does not come within the scope of the prohibition on hate speech, the Court considers the meaning of the exception for expression of opinions. The trouble, in its view, is that it seems to be so broad as fully contradict the general prohibition. In order to avoid interpreting one provision so as to cancel out the effect of the other, the court below blended the two is a sort of balancing exercise, treating the exception as a reminder of the importance of freedom of expression. The Court of Appeal holds that this is not the right approach. The statute’s words must be given their full effect. The exception cover all statements of opinion―but not purported statements of fact. The letter at issue, the Court holds, is an expression of opinion, and thus covered by the exception.

In effect, the Court interprets the hate speech provisions of Alberta’s human rights legislation as a prohibition on the more extreme forms of group defamation. The distinction between purported statements of fact and opinion comes straight from the law of defamation―though the law of defamation is very wary of the idea of group defamation, requiring the plaintiff to be identifiable as the subject of the defamatory statement. And there is another importance nuance in the law of defamation. It only protects statements of opinion for which accurate factual context is either provided with the statement, or is deemed to be generally known. The Court doesn’t seem to import this limitation in its interpretation of the hate speech provisions.

Overall, this case illustrates, once again, the problems with attempts to prohibit hate speech. I have some sympathy for the impulse behind the attempts (defended, for example, by Jeremy Waldron in this column). But when it comes to transforming the good intention into statutory language, the outcome tends to be hopeless vague. And judicial interpretation results in the statutes being vanishingly  narrow, yet at the same time still desperately unclear. Whether or not it is philosophically attractive, hate speech legislation is not a success.