The cost/benefit analysis is a necessary component of good public policy decisions. There’s no way of knowing if a particular idea makes sense without weighing all the attendant advantages and disadvantages. Should that bridge be built here or there? Or at all? Will new safety regulations deliver a net positive gain to society? Is a universal basic income worth the price? Every proposal deserves to be put to the test. And if the negatives outweigh the positives, that should be the end of it.
Unfortunately, too many public policy decisions are made in the absence of such a critical thinking process. This is often the case when advocates claim the benefits of their preferred policy are so obvious and manifest as to render any accounting exercise meaningless. And the costs? When virtue is the objective, no price is too high. Take, for example, the latest proposals to curb online hate speech.
The federal Liberals say they are on the verge of unveiling new legislation to combat hate speech by regulating online media. This, Heritage Minister Steven Guilbeault has promised, will include a new federal regulator to enforce a new statutory definition of hate. The law will apparently require that internet providers remove any instances of hate speech, however defined, within 24 hours.
It is also rumoured the proposed legislation will revive the practice of the discredited Section 13 of the Canadian Human Rights Act. This allowed groups or individuals to seek monetary damages for speech they claimed exposed them “to hatred or contempt.” Section 13 was not only a severe limitation on Canadians’ free speech rights, but subject to widespread abuse by “anti-hate” activists who used it to financially harm their opponents. Significantly, the truth of the content in question was not allowed as a defence in these cases. Section 13 was properly abolished by the Harper government in 2013.
Whether or not Section 13 is reborn, the Liberals’ agenda clearly entails significant new intrusions into the ability of Canadians to exercise their constitutionally-guaranteed right to free speech. Indeed, adding government oversight and sanctions to what Canadians can say or do online is becoming a habit for the Trudeau government. Recall last month they tried to bring user-generated videos on social media like YouTube and TikTok under control of federal broadcast standards and regulations via a sneaky amendment to Bill C-10, currently still in debate in Parliament. Only after a huge public outcry did the Liberals relent by promising a further amendment and clarification. Whether the new hate speech law triggers a similar reaction may depend on how far it goes. And it could go quite far.
Despite Canada’s long and praiseworthy history as a sanctuary from hate and a beacon for peaceful diversity, there exists a large publicly-funded superstructure dedicated to promoting the idea our country is awash in racism and other forms of hate. This includes federal and provincial human rights commissions, a federal minister of Diversity and Inclusion, hate crime units in all major police services plus numerous race-relation organizations and anti-hate watchdogs – all fuelled by a dizzying array of ad hoc and permanent grant programs and encouraged by a credulous media.
The looming federal legislation promises the same messaging, backed by the same rationalization: Canada is a powder-keg of hatred and only the government can fix it. “The federal government is preparing to unveil strong legislation that aims to severely curtail the proliferation of online hate,” Amira Elghawaby, a founding member of the Canadian Anti-Hate Network, wrote approvingly. “Everyone agrees that something must be done.”
But surely Canadians deserve a more comprehensive analysis of the costs and benefits of this major new policy effort than the facile assertion that “everyone agrees.” So what are the costs and benefits of hate speech laws?
The price entailed by restricting what Canadians can say in public is rarely quantified. But it is significant. In response to the Liberals’ recent botched plans to regulate YouTube, University of Ottawa law professor Michael Geist called it a “shocking and possibly unconstitutional speech regulation.” Geist also declared “the idea that a broadcast regulator has any role to play in basic speech…anathema to [a] free and democratic society where freedom of expression is viewed as one of the foundational freedoms.” We can expect the new hate speech regulation to set off similar alarm bells over free speech rights.
Beyond the intrusion of government regulators into the intimate conversations of Canadians, any limitations on democratic discourse will naturally constrain society’s ability to grapple with its biggest issues by forbidding viewpoints and ideas that may differ from orthodox opinion. Government control over what is said reduces diversity of thought, increases self-censorship and suppresses innovation. It is for these reasons that free speech was once considered not merely good in itself but central to Western civilization’s ability to overcome whatever obstacles it might face. The costs associated with a loss of free speech rights can thus be considered enormous. If not existential.
On the other side of the ledger, the concept of benefits arising from the curtailment of free speech rights is also rarely discussed in any concrete way. Of course, most people would wish for a world in which there is no hate, and consequently no hate speech. Fair enough. But to put such an ideal into practice, we need a rigorous approach that focuses on objective measures of what constitutes hate – as opposed to mere spirited debate – and how it might cause harm.
And by this standard, there are two possible advantages to government restrictions aimed at curtailing hate speech. First are society-wide benefits that could arise from a reduction in hate crimes incited by hate speech. Second are the micro-level benefits from reducing identifiable psychological harms suffered by individual victims of hate speech.
To properly consider the benefits of any new hate speech legislation, we must first assess the size of Canada’s hate problem. Statistics Canada has gathered data on hate crimes reported to police since 2009. These figures include not only charges and convictions, but also police reports that were investigated but in which no action was taken. We can consider this to be the broadest possible definition of a crime.
Despite widespread attention, the actual figures are surprisingly small. Statscan’s decade of data shows an average of fewer than 2,000 hate crimes per year. In 2019, the most recent year available, there were 1,946 incidents. While this raw number alone might still seem like too many crimes, it must be compared to the total 2.2 million general crimes (excluding traffic offences) reported annually in Canada. Reported hate crimes thus amount to less than 0.09 percent of all known criminality in this country.
But even this top-line number can be misleading. Despite breathless media coverage, Canada is not witness to 2,000 horrific hate-fuelled events every year – such as violent beatings by skin-headed marauders. The majority of police-reported hate crime incidents are, as Statscan itself puts it, “non-violent violations.” Graffiti, vandalism and other so-called mischief or property-related incidents account for 56 percent of all hate crimes.
Of the remainder that are classified as violent, one-third are uttered threats rather than physical acts. And much of this occurs online, where physical contact is impossible. The same goes for criminal harassment, another category considered to be “violent violations” of hate crime legislation, as well as common (level 1) assault, which doesn’t involve bodily harm. The total number of physical attacks with weapons, aggravated assault and other deliberate acts of violence classified as hate-motivated in Canada amounts to approximately 200 per year.
While all crime is to be abhorred and dealt with appropriately, the latest data shows the vast majority of Canadians face no discernible prospect of ever encountering violence motivated by hate. There are three times as many homicides per year as violent hate crimes in Canada.
Regardless of whether a criminal act is physically violent or not, the designation that it was motivated by hate carries significant consequences for the perpetrators. Criminal mischief, for example, which involves damaging private property, is punishable by up to two years in jail; the same crime if determined to have been motivated by hate carries a maximum 10-year sentence.
Recently, some anti-hate organizations have taken to adding to the existing hate data by compiling their own “hate incident” figures based on far less rigorous criteria. Examples of these are Alberta’s #StopHateAB.ca and ReportingHate.ca based in Ontario. These websites cast a rather broad net, encouraging people to anonymously record any instances in which an expressed opinion or act might be indicative of discrimination or prejudice. Yet without police verification, these sites could just as easily record benign acts misinterpreted by others. Regardless, the result will be to lengthen the list of purported hate incidents.
Finally, there’s the question of who offends. While “white supremacy” is a popular boogeyman for hate crimes in the United States and Canada, it is impossible to pinpoint the race of alleged perpetrators in Canada since Statscan doesn’t track this information. The U.S. does, however. And the evidence fails to support the popular narrative that only whites can be racists.
According to the most recent Department of Justice statistics, among hate crimes in which the race of the accused was known, whites committed 52 percent of the total, while so-called “non-Hispanic whites” comprise about 61 percent of the U.S. population. Blacks, on the other hand, make up approximately 13 percent of the population but were observed to commit 24 percent of identified hate crimes. Equally problematic for proponents of white supremacist claims is the fact a disproportionate share of recent anti-Asian hate crimes have been perpetrated by blacks.
Looking deeper into hate crime statistics, it becomes obvious that many such incidents represent highly aberrant behaviour committed by a few troubled individuals rather than a growing mainstream phenomenon. A report by the City Auditor of Seattle, for example, reveals that nearly a quarter of all known perpetrators of hate crimes in that city were homeless, a fifth were intoxicated at the time of the incident, and a fifth were suffering from mental illness. Nearly all had prior criminal convictions, did not know their victims and acted alone. Hardly evidence of a social contagion.
From Hate Speech to Hate Crime
While Canada experiences a very low level of actual hate crimes, any society-wide gains to be had from a new hate speech law depend on the strength of the causal link – if there is one – between communication classified as hateful and crimes of hate. In brief: does hate speech – especially hate speech facilitated and amplified by modern means of communication, like social media – lead to hate crimes? If such a mechanism exists, then it can at least be argued that hate speech laws might provide a benefit by preventing future hate crimes. If there is no such connection, then the case for tougher anti-hate-speech laws is weakened severely.
This is another topic that has been studied at greater depth in the U.S. than Canada. In fact, Congress recently asked the U.S. Department of Commerce’s National Telecommunications and Information Administration(NTIA) to update an earlier 1993 report on any potential role played by communications technology in encouraging hate crimes. As a leaked copy of NTIA’s 2021 new study notes, the 1993 version “concluded no rigorous data linked the problem of hate crimes and telecommunications services”. The earlier study also “endorsed the belief that the best remedy for hateful communications is not government restrictions, but more speech to disseminate views that challenge notions of hate and bigotry.” Consider it a rare and conclusive endorsement of free speech as the better solution to hate speech.
Much has changed since 1993 – including the rise of social media, texting and smart phones. Despite all these innovations, the NTIA’s observation about the role played by technology remains unchanged. “We find no evidence that electronic communications, including the internet, cause hate crimes,” the 2021 update declares. While acknowledging that hate crimes may occur online, and that hate criminals make ample use of social media and the internet (as do criminals of all types), the NTIA’s latest report says causality cannot be proven.
Other signs are also encouraging. Throughout a decade of rapid technological innovation, the total number of hate crimes reported in the U.S. has not only failed to grow, but actually edged down. In 2008 there were 7,783 incidents reported to the federal Hate Crime Statistics Program. In 2019: 7,314. A separate U.S. government survey focused on the victims of hate crimes also found an overall reduction in reported hate crimes during this same period.
As for the costs of cracking down on free speech in order to curtail hate speech, the NTIA authors reiterated their predecessors’ conclusion from 1993: “We caution that efforts to control or monitor online speech, even for the worthy goal of reducing crime…runs counter to our nation’s dedication to free expression.”
Rather than imposing government standards on online communication, the NTIA instead recommends making online platforms legally responsible for the content they post, similar to how print publishers are currently treated under the law. While this is likely to sound like common sense to a lot of people, it would represent a titanic change in policy. The internet’s social media providers benefit hugely from their status as (officially) open-to-all platforms that are in fact not legally responsible for what they publish. Among the many benefits of this policy is being shielded against defamation lawsuits.
The fact the NTIA report runs contrary to the current popular narrative that hate crime and hate speech are not only intimately linked, but are on the rise due to right-wing radicalism, may explain why the Biden Administration has so far refused to officially release it.
The Canadian Experience
While no public agency in Canada appears to have conducted a similar investigation into any possible link between hate speech and hate crime – or the role played by technology – we do have an interesting natural experiment covering similar ground. And offering a similar conclusion.
During the highly publicized trial of infamous Holocaust-denier Ernst Zundel in 1985, many commentators argued that merely reporting on his beliefs would spread hate and cause harm for Canada’s Jewish population – a pre-internet version of the transmission argument. To test this proposition, two professors at the University of Ottawa studied polling data taken before and after the three-month court case.
Despite worries the publicity would legitimize Zundel’s views and build support for his anti-Semitic prejudices, the researchers found the opposite. “The trial and the attendant publicity failed to swell the ranks of the prejudiced minority,” they wrote. “Furthermore, the unprejudiced majority was strengthened in its convictions and level of historical understanding.” Sympathy towards Jews actually rose across Canadian society as Zundel’s positions were challenged in the public square, demonstrating that even virulent hate speech can be successfully overcome through open debate.
Unfortunately, the idea that debate is the best way to combat hate is at odds with the entire history of hate speech law in Canada. Since 1970, the Criminal Code has made it a crime punishable by up to two years in prison to “publicly incite or willfully promote hatred.” This legislative innovation was introduced, amid much controversy, by the Liberal government of Prime Minister Pierre Trudeau in response to the 1966 Special Report on Hate Propaganda in Canada, produced by the Cohen Committee headed by Maxwell Cohen, dean of McGill University’s law school. (Trudeau, formerly a law professor at the University of Montreal, was a member of the Cohen Committee before resigning to enter politics.)
Delivered at a time of great panic over the power of corporate advertising, and with Nazi Germany’s propaganda efforts still fresh in many minds, the Cohen Committee report adopted an essentially elitist approach to the issue. Mustering the latest scientific theories, the document claimed individual citizens lacked the necessary “critical faculties” to sort truth from fiction. Rather, we are all apparently at risk of being “swept away by hysterical, emotional appeals” made by propagandists and advertising Mad Men. People, the report claimed, will believe “almost anything” and often “perversely reject the demonstrations of truth put before them and forsake the good they know.
Accepting this gloomy view of the fundamental immaturity of society, the Cohen Committee declared it must become government’s job to protect us all from exposure to actual debate or the difficult task of making up our own minds. To this day, the 55-year-old report exerts significant influence over hate crime jurisprudence and often finds its way into Supreme Court rulings.
A recent effort by the Ottawa-based lobby group Public Policy Forum to update the Cohen Committee’s findings came to a similarly pessimistic conclusion. Its final report, released earlier this year, declared “harmful and hateful speech” to be the inevitable by-product of online discourse, and concluded there is only one solution, that “government must play a more active role in…protecting Canadians from online harms.” Ergo: Guilbeault’s plans for new online hate speech regulations.
What Words Sting the Most?
Central to the much-relied-upon Cohen Committee’s report is the notion that “individuals subjected to racial or religious hatred may suffer substantial psychological stress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage.” Here lies the final potential benefit to hate speech laws. If the actual level of hate crimes is surprisingly low in Canada – something that should come as great news to everyone, but apparently doesn’t – and if there’s no evidence hate speech acts as a transmission mechanism for hate crime, then the only significant benefit to be had from banning hate speech must be in limiting personal harms suffered by individual victims.
Easy pickings: Cohen had a low opinion of ordinary people, regarding them as lacking the “critical faculties” needed to evaluate information and discern the truth, and thus easily manipulated by admen or haters. Pictured, scenes from the hit TV series Mad Men (2007-2015).
There is no doubt that speech can hurt. But any word can produce psychological distress given the right context; it is not the exclusive domain of hate speech. This point was well made by the renowned black literary critic Henry Louis Gates Jr. In his 1993 review of the book Words That Wound, an important text among critical race theorists and anti-hate activists. Why should we assume that “racist insults, which tend to be generic, are necessarily more wounding than an insult tailor-made to hurt someone?” Gates asked. “Being jeered at for your acne or your obesity may be far more hurtful than being jeered at for your race or your religion.”
Despite Gates’ critique, the notion that some insults hurt more than others remains central to Canada’s hate speech laws. We have not criminalized personal comments about a person’s lack of good looks or the chastity of one’s mother; only statements that willfully promote hatred based on certain groups’ attributes. Curiously, this foundational concept has gone essentially unchallenged in Canadian courts.
Only twice has expert testimony in Canada directly addressed the science behind the proposition that an individual’s exposure to hate speech regarding group identity constitutes a unique harm that reaches the level of criminality. And further, that the only viable solution is to eliminate this exposure by limiting everyone’s speech rights. In both cases the expert was the late Dr. Michael Persinger, a neurobiologist at Ontario’s Laurentian University. His contribution is worth a closer look.
Persinger’s legal brief The Anachronism of Policies and Laws for Hate Speech in Modern Canada: The Current Negative Cultural Impact of Legal Punishment upon Extreme Verbal Behaviour, took deliberate aim at the science underlying the Cohen Committee’s conclusions – and by extension all subsequent Canadian hate speech jurisprudence. He used this brief in Warman v. Lemire – a 2009 Canadian Human Rights Tribunal case involving Section 13 in which defendant Marc Lemire was accused, among other things, of operating an online forum that “caused to be communicated” certain hateful statements against several identifiable groups.
Persinger testified that the research backstopping those charges was “out of date and based on inaccurate psychological theories.” He pointed out that the entire field of neuropsychology, which allows for the mapping of brain functionality and measurement of responses to certain stimuli in different behavioural states, did not even exist in 1966. Further, Persinger echoed Gates in arguing the “concept [of] ‘psychological distress’ is so vague that it is meaningless. Any word from any person can produce in another person an elevation of arousal and the release of intrinsic chemical reactions that can be considered distressful.” Rather than tackling Persinger’s devastating critique, however, the tribunal simply declared Section 13 to be inconsistent with Lemire’s Charter rights to freedom of speech and declined to enforce its provisions.
Even today, establishing a neurobiological basis for hate speech legislation remains a highly contested issue. A 2015 paper in the Journal of Law and the Biosciences garnered considerable comment and criticism for its attempt to posit a “neuroscientific” theory for regulating hate speech using the concept of “mirror neurons.” But even the authors admitted their case could not be proven, concluding that, “We do not contend that our hypothesis…is a sufficient basis for specific policy recommendations regarding whether various legal restrictions on dehumanizing or ‘hate’ speech would be effective in reducing implicit biases and associated human rights abuses.” It can also be considered significant that the Public Policy Forum’s update of the Cohen Committee report earlier this year made no mention of neurobiological or other scientific claims regarding hate speech, unlike the 1966 effort. The new report merely alleges that hate speech is a bad thing.
In hearing a 2017 appeal of the earlier hate crime trial of Arthur Topham, the B.C. Supreme Court did appear to tacitly accept Persinger’s observations on the antique nature of the Cohen Committee’s scientific claims about hate speech. But rather than following Persinger’s chain of logic to its proper conclusion, the court sidestepped the issue by claiming debate on hate speech is “rich and multifaceted” and “informed by an amalgam of historical, psychological, sociological and philosophical concepts” that go beyond science: areas in which they declared Persinger to be unqualified to cast judgement. The 70-year old Topham received a six-month sentence for, among other things, publishing online screenshots of the anti-Semitic forgery The Protocols of the Elders of Zion.
A Better Way to Deal with Distasteful Speech
Despite being ignored by the courts, Persinger’s position has yet to be disproven. There is no scientific evidence that hate speech is any more or less harmful to individuals than personal insults. Yet it alone is criminalized. And while he acknowledged that distress caused by hate speech can be real, it does not necessarily follow that these harms can be reduced by removing exposure to the source via greater government control, as the Liberal government is so eager to do. This is because hate is not an objective fact or hard target that can be defined, isolated and eliminated. Rather, Persinger observed, the definition of what constitutes hateful behaviour is entirely elastic and beholden to prevailing cultural attitudes. As he puts it in his legal brief:
“Attempting to inhibit or remove the extreme 1% of the population simply redefines the extremes with the remaining individuals that compose a society. Ultimately if these extreme layers of individuals and their behaviours are suppressed or punished as unlawful, behaviours that in themselves were considered ‘normal’ become more and more aberrant and extreme. Their shift towards social unacceptability then becomes arbitrary and contrived. The logical endpoint is that all verbal behaviour must become homogeneous or it is aberrant and hence punishable.”
Worried that government efforts to define and punish hate speech would inevitably lead to a stifling of the free interchange of ideas and hence limit “creative solutions to complex problems,” Persinger offered an alternative response to the issue that actually does have a scientific foundation. He noted that ample research reveals that “desensitization of the impact of words by equipping the person with the opportunity to express opinion freely and by accessing strategies that allows the person to individually accommodate the ‘distress’ allows for adaption. And this can lead to a reduction in any future harms that may be experienced.”
This somewhat convoluted prescription is nevertheless one that all cognitive behavioural therapists should recognize. Cognitive Behavioural Therapy teaches patients to recognize their own negative and distortive thought patterns by naming and describing them whenever they arise, and challenges them to propose different behavioural options and alternative interpretations of triggering stimuli. It is widely considered to be the most successful non-pharmaceutical method of dealing with depression and anxiety, among other disorders.
Applying such an approach to hate speech would not only avoid constitutionally-damaging bans but would also align with the recommendations of the leaked NTIA report. To alleviate the sting of “hate speech,” society needs to experience more contentious debate rather than less. And by all parties. As Persinger’s brief notes, such a free flow of ideas “is a normal consequence of adjusting to a multicultural environment and allows, when freedom of speech and debate are encouraged through multiple forums, an integration of differing perspectives.”
If, on the other hand, we continue to privilege hard feelings over rigorous debate, the likely result is a continual narrowing of what can be acceptably discussed without allegedly risking psychological harm to others. And this limits society’s ability to let “truth grapple with falsehood,” to paraphrase Milton. The only way to end this spiral of sensitivity is to encourage greater human interaction. How to accomplish such a goal? The authors of the earlier-cited Journal of Law and the Biosciences article suggested, “Perhaps, education…is a start.”
Persinger had a slightly cheekier solution in mind:
It seems a fascinating idea. Instead of cancelling speech, perhaps we should be compelling listening.
Given the vast outrage to the Liberals’ recent attempt to regulate social media content through amendments to the Broadcasting Act, there may be reason to expect similar opposition to the coming efforts to control what Canadians can say online via new hate speech legislation. The ability to speak freely without government oversight remains a fundamental component of Western civilization and is crucial to maintaining an innovative and resilient society. The costs of losing this right can be properly considered to be enormous. As for the benefits, as we have seen, they are marginal and dubious. There is no basis for the claim that technology is metastasizing hate speech into hate crime. And no science backing the argument that some insults hurt more than others.
For these reasons, it makes far more sense to drop efforts to add yet more government regulation of online speech. And to avoid at all costs any attempts at reviving the infamous Section 13. Instead, we should adopt Persinger’s recommendation that we listen more and complain less. Not only does his vision of compelled listening entail no costs to society in terms of limiting speech rights, it also has the advantage of providing some actual benefits. At least we’d all get the chance to converse with each other more often.
Bradford H.B. is a practising lawyer with a strong interest in the areas of civil rights and free expression.