By: David Bernstein
The Canadian Assault on Freedom of Expression:
For some reason, and despite my obvious interest in conflicts between civil liberties and antidiscrimination laws, I haven't gotten around to blogging about the recent pernicious attacks on freedom of expression in Canada, courtesy of provincial "human rights" commissions.
So here are a few thoughts on how the situation in Canada is relevant to the situation in the U.S.:
(1) The slippery slope. When I was in law school, advocatse of weakening First Amendment protections to restrict "hate speech" pointed to Canada as a shining example of how egregious expression could be banned without threatening freedom of speech more generally. At the time, the Canadian Supreme Court was holding that Holocaust denial and violent, misogynistic pornography are not protected under Canadian constiutitional law. And, really, who wants to defend Holocaust denial and violent pornography? Yet, less than twenty year later, we have Canadian citizens being prosecuted for quoting biblical injunctions against homosexual activity, or for merely reprinting the Danish Mohammed cartoons. (For the latest outrage, see here, courtesy of Instapundit). So the Canadian example hasn't quite worked out as its prior advocates had anticipated. Instead of being an example of "reasonable" restrictions on freedom of expression, it has become an example of the slippery slope problems inherent in allowing restrictions on freedom of expression based on subjective views of what is sufficiently offensive or problematic to be banned.
(2) The most egregious infringements on freedom of expression in Canada have come from "human rights" commissions whose sole function is to ferret out discrimination. Not surprisingly, the functionaries who man (oops, call out the thought police) these commissions have little regard for protecting competing values such as freedom of expression, which is not part of their job description. Similarly, in You Can't Say That!, I found that many of the worst infringements on freedom of expression in the name of antidiscrimination come from state and local "human rights" agencies. The lesson: antidiscrimination statutes and regulations should be enforced by judges who are obligated to uphold the Constitution, not by "human rights" bureaucrats who don't think the Constitution is relevant (and who, in California, are (unconstitutionally) banned by statute(!) from considering whether what they are doing is consistent with the Constitution).
(3)During the Clinton Administration, lawyers at both HUD and the Justice Department--most prominently Deval Patrick*--were at the forefront of trying to blur the distinction between expression and discriminatory actions in the context of housing discrimination law. In particular, the Clinton Administration argued that merely speaking out against plans to locating facilities for the mentally ill or recovering drug addicts in one's neighborhood violated the Fair Housing Act. Only after years of severe public criticism, and several negative court decisions (e.g.), did the Clintonians back down. Judging by the Obama's campaign's claims that the McCain camp is violating the Voting Rights Act by raising questions about voter fraud, I think we can expect a reprise in an Obama Administration.
*Patrick analogized political leaflets to baseball bats, remarking that bats "are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws."