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Weeks 10-11: Freedom of Expression (Hate speech (R v. Keegstra SCC 1990…
Weeks 10-11: Freedom of Expression
Hate speech
R v. Keegstra
SCC 1990
Keegstra was a high school teacher who espoused anti-Semitic views. he was convicted under the criminal code, which criminalized speech outside private conversation that wilfully promoted hatred against any identifiable group
the Court found a
PF facie violation
on art 2 freedom of expression, but that it was
sufficiently proportionate
under art 1
Oakes test
legitimate purpose
becauyse the speech causes sufficient harm that can influence or degrade individuals and society at large
there was a
rational relationship
because hatred doesn't serve free expression values
there was ((minimal impairment** because although there was some concerns of a chilling effect, the statute excluded private conversations
dissent (McLachlin CJ) - would have found it to have an insufficient rational connection because it could give people a platform and provoke sympathy; it ws not a minimum impairment because it was overbroad and shouldn't be criminalized; and any benefit was outweighed by a significant infringement on freedom of expression
US cases
overview
there is a general presumption banning restrictions on
content and viewpoint-based discrimination
speech may sometimes be prohibited categorically, but there is uncertainty int he law (e.g. around obscenity, libel, fighting words, threats)
RAV v. City of St Paul
USSC 1992
RAV burned a wooden cross on the lawn of a black family. was prosecuted under a local ordinance which prohibited the placement of hateful symbols "which one knows or has reasonable grounds to know arouse ... anger, alarm or rsentment in others on the basis of race, color, creed, religion or gender"
the statute was
unconstitutional
Scalia J
would have found the statute to engage in both
content
and
viewpoint
discrimination: it was based on
race
, and favored views which promoted
tolerance
commentary
Rosenfeld
Canada
has two principal differences from the US: grounded in different normative priorities (multiculturalism rather than melting pot); and focuses on long-term, rather than only immediate harm
UK
prohibits hate speech, but has been more successful in combating Nazis than attacks on racial minorities - have been accused of uneven enforcement aimed at black political speech
In
Germany
, like Canada, FoS is one value among many. There is a strong influence from its
Nazi past
In the
US
, rules a clear-cut, but not attenuated to long-term harms
Rosenfeld argues that a pluralist state ought to engage in viewpoint discrimination against the crudest and most offensive versions of racism, bigotry and virulent bias - or else risk losing their status as pluralist states
Speech and social disorder
Brandenburg v. Ohio
USSC 1969
Brandenburg was the leader of a KKK chapter. he was convicted under an Ohio statute for "advocating the duty, necessity or proprity of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform"
the statute was
unconstitutional
threatening speech was only unconstitutional where it
incites imminent lawless action
, and is in fact
likely to produce or incite such action
Wunseidel
Germany 2009
Germany had long prohibited Holocaust denial. Public statements and commemorative meetings were criminalized. The plaintiff was planning a gathering to commemorate Rudolf Hess
the law was
constitutionally valid
acknowledged that the law was not a general one, and was targeted at a particular group. However, the court found that there was an
implicit constitutional exception
to the requirements of general laws where it was
expressive activity bearing a relationship to the historical experience of Nazism
particularly where the speech is designed to appeal to
emotion
, not
reason
state had a
positive duty
toward Jewish citizens to protect them from the resulting harms
Libel and public order
NYT v. Sullivan
US 1960
Sullivan was Commissioner of Police in Montgomery AL. He sued the NYT after it printed an advertisement containing allegedly false (minor errors) statements about his action to control protestors
Court found that if the plaintiff is a public official,
must prove actual malice
to recover for defamation
a central value of the 1A is to protect criticism of government
German cases
The Luth Case
1953
Luth was a lander minister. He made statements dissuading people from seeing a film made by Veit Harlan on the basis that he had been a prominent Nazi. He was sued in defamation
the Court found that the constitution was not value-neutral - it created an
objective order of values
this objective order centers upon
dignity
, and infuses private law (including defamation) -
"newly enacted statutes must conform to the system of values of the basic rights
the CC can therefore review lower court decisions for compliance with the "
radiating effect
" of the constitutional order
acknowledges the importance of FoS as preserving the democratic order - but expression will not be protected simply because it is expression, if it harms someone else. Instead, some
balancing
must take place
the fact that private speech is expressed for the purpose of influencing public opinion will make it more protected
"
Where the formation of public opinion on a matter important to the general welfare is concerned, private and especially individual economic interests must, in principle, yield
The Boll Case
1980
Boll was a well-known author. He sued a TV commentator who had made remarks about him in a broadcast which suggested he supported terrorism and was responsible for a climate of violence in Germany. It quoted some of his statements of out context
Court found
no free speech protection
: the defamation law was valid
The const. guarantees rights to an "intimate sphere", "personal honor" and "one's own words"
where quotes are taken out of context, the court will take a particularly close look
the FoS rationale articulated in
Luth
is not served by false comments, and the mere obligation to quote someone correctly is not a chilling burden on speech - when quoting someone out of context, the constitution establishes a duty to explain that it is an interpretation