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Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech regulation has a principled basis. There are many committed civil libertarians who regard hate speech as odious but are nevertheless prepared to defend the right of others to engage in it. Their opposition to the restriction of hate speech rests on a commitment to individual liberty sand a concern about the reach of state power. While I think the "civil libertarian" position is mistaken, it is not without merit. What is perplexing though is the extraordinary energy that these advocates of free speech put into the fight against hate speech regulation. They seem convinced that the integrity of the free speech edifice depends on holding the line here. Yet they seem indifferent to the more significant ways in which freedom of expression is being eroded in Western democracies. Whether by design or not, the obsessive opposition to hate speech regulation diverts our attention away from more fundamental free speech issues concerning the character and structure of public disclosure, and more particularly the domination of public disclosure by commercial messages and the advertising form. But, of course, these are not issues that can be addressed by the courts, except in indirect ways, and that may partly explain the lack of attention they receive.
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The regulations in Alberta dealing with driver’s licenses were amended in 2003 to require that all license holders be photographed. The license holder’s photo would appear on his or her license and be included in a facial recognition data bank maintained by the province. Prior to this change, the regulations had permitted the Registrar of Motor Vehicles to grant an exemption to an individual who, for religious reasons, objected to having her or his photo taken. Members of the Hutterian Brethren of Wilson Colony, who believe that the Second Commandment prohibits the making of photographic images, had been exempted from the photo requirement under old regulations, but were required under the new law to be photographed before a license would be issued.
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In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.
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During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading or just plain false and it considers how these deceptive and invented claims have entered mainstream discourse. This will involve some general observations about the state of public discourse in Canada.
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This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the position that state censorship of hate speech should be confined to narrow category of extreme expression – that which explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if the violence advocated in not imminent – and that the restriction of this narrow category of expression should be dealt with under the Criminal Code rather than the CHRA.