Censorship not the solution to end homophobia

A positive gay rights decision from Alberta? You’d think that would be something worth celebrating. But, like they say, be careful what you wish for.

The Alberta Human Rights Commission recently ruled that a homophobic letter published in the Red Deer Advocate newspaper by Stephen Boissoin violated the Alberta human rights code. The complaint was brought by Darren Lund, a professor at the University of Alberta.

Section 3 of the Alberta law prohibits the publication of materials that “is likely to expose a person or a class of persons to hatred or contempt”.

The letter in question, called “Homosexual Wicked Agenda” is pretty homophobic. It’s a diatribe against gay rights. The language is inflammatory, filled with references to our ‘wickedness’ and the ‘horrendous atrocities’ of our agenda.

Darren Lund thought that this was precisely the sort of material that the law should prohibit. He testified that he felt compelled to bring the complaint after a young gay man was violently attacked, just two weeks after the publication of the letter.

Boissoin defended his letter, saying that it wasn’t hate, but the expression of his deeply held religious views. He pointed out that section 3 also contains a provision that says that the law shall not interfere “with the free expression of opinion on any subject.” And he argued that his right to express his views was protected by the Charter.

The Attorney General of Alberta intervened to defend its legislation. The Canadian Civil Liberties Association intervened in support of the right to freedom of expression, conscience and religion.

The Commission ruled in favour of Lund. First, it held that the letter was “likely to expose” a class of persons, namely, homosexuals, to hatred. The letter helped to develop “mistrust and fear of homosexuality”, it was “militaristic and…serves to dehumanize people who are homosexuals by referring to them in degrading, insulting and offensive manners”, and drew “false analogies between homosexuality and paedophila”.

The Commission was careful to follow case law that directed it to consider things like content and tone of the communication, the vulnerability of the target group, the degree to which it reinforced stereotypes and the circulation of the publication.

After reviewing each of these factors, the Commission had no trouble concluding that Boissoin’s letter was likely to expose gay folks to hatred.

The Commission then went on to consider the provision in the Alberta that protects freedom of expression. While noting that it required a balancing of freedom of expression with the elimination of discrimination, the Commission held that it shouldn’t be read to protect hatred under the guise of opinion or political speech. Individuals expressing their opinions should do so in a responsible way. Boissoin didn’t. So, no protection.

The ruling is a pretty solid one. No obvious mistakes. No egregious reasoning. All very careful and reasonable.

So, what’s the problem?

Well, if you don’t mind hate speech laws, and you don’t mind the censorship of freedom of expression, then not much.

The problem comes if you worry about freedom of expression. The Canadian Civil Liberties Association (CCLA) argued that even though Boissoin’s views may be totally offensive, censoring political speech is a dangerous business. It casts a chill over the kind of rigorous debate that democracies require. The CCLA tried to argue for a more narrow interpretation that took freedom of expression a little more seriously.

The Commission paid lip service to balancing, but then just came down in favour of discrimination and hate over expression. Many folks would agree.

But, like the CCLA, I think it’s a dangerous road to head down, especially for gay and lesbian folks. After all, it has often been the dissenting gay and lesbian speech that has been censored.

Censorship is a little too easy, and a little too ineffective. Folks like Ernst Zundel and James Keegstra (infamous Holocaust deniers) would never have become household name if they hadn’t been turned into a freedom of expression martyr by the very laws that are designed to promote equality. Censoring the speech makes them more famous, and does little to address the outrageousness of their claims.

Boissoin’s views are appalling. But, censoring them isn’t the answer. Holding them up to the light of day is admittedly more time consuming, but in the long run, much more effective. And who said that democracy wasn’t supposed to be exhausting.

So, what else was a human rights Commission facing this set of facts and this law to do? Well, it could have interpreted the freedom of expression protection in the law a little more broadly. But, if it did, it might well get over turned on appeal.

Then again, if there is an appeal, all bets are off. The Alberta courts don’t have the very best reputation in the country on gay rights. So, back we are to a decision that is trying to protect the rights of gay folks to be free from discrimination and hatred, in a province not known for taking a lead on this front. If it weren’t for that pesky little freedom of expression issue, this really might be cause for celebration.