Hate Speech Isn’t Free Speech

Shiv has come out of retirement with an excellent post on Meghan Murphy. Go read it. I’m a fan, but I do have a critique: I don’t think it goes far enough.

Meghan Murphy is Canadian, so the Canadian Criminal Code applies to her. Let’s walk through section 319.

319.1 Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

319.2 Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

Are transgender people an “identifiable group?” Yep, according to the criminal code (318.4). “Promoting hatred” means information about this group that would lead to physical harm or intimidation. Quoting Murphy:

Our concerns about male predators having access to spaces wherein women and girls are vulnerable are shared by many across the political spectrum.

Stating that transgender women are both men and sexual predators certainly qualifies. Click through, and you’ll see that’s not a one-off example. Add in the number of transgender people murdered for who they are, and we have decent evidence that physical harm is the end result. On the surface, then, Murphy would seem to be guilty of hate speech under 319.2 of Canada’s Criminal Code. She has four defenses she can turn to:

319.3 No person shall be convicted of an offence in subsection (319.2): (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Both 319.b and 319.d can be immediately crossed off. The remaining two hinge on using the truth as a defense, which is a problem for Murphy.

We are all aware that what we are saying is not hateful, but is perfectly reasonable. Indeed, our views on biological sex are based in science and treated as basic fact by the vast majority of the population.

It’s trivially easy to show TERF beliefs run contrary to science, if only because science is descriptive rather than prescriptive. When evidence and theory conflict, we do not throw out the evidence. If one person says “I don’t identify with the gender I was assigned at birth,” the scientific method argues we should toss out the theory that all persons identify with the gender they were assigned at birth. The evidence that sex is not binary and that gender identity exists is just icing on the cake, a rhetorical flourish intended to sway irrational people who don’t grok the scientific method.

Unfortunately, there’s a reason why I tacked on the “on the surface” bit.

[5]  As a result of Parliament’s commitment to free speech in an open and democratic society and supported by judgments of our Superior Courts in Canada, the Crown must meet very stringent tests on each of the elements of the offence of wilfully promoting hatred.  For example, in considering the term “wilful”, Mr. Justice Martin, in the case of Regina v. Bzzanga and Derocher, the mental element of wilful was only satisfied when an accused subjectively desires the promotion of hatred and foresees such consequences as certain or substantially certain to result from an act done in order to achieve the same purpose.  In the later case of R. vs. Harding, the trial judge noted that people who promote hatred rarely explicitly admit that such is their intention, thus the necessary “mens rea” or guilty mind must be inferred from the offending statements themselves. In other words, the court must look at the alleged offending statements and communications surrounding the offending statements as well as the circumstances under which the offending statements are made.  Parliament was also careful in using the word “promote” to indicate that simple encouragement or advancement of emnity is not sufficient.  To quote Chief Justice Dickson in the Keegstra case, “the hate monger must intend or foresee as substantially certain, a direct and active stimulation of hatred against an identifiable group.”  Chief Justice Dickson quotes with approval, the definition of hatred given by a fellow Supreme Court of Canada, Judge Cory, in the R. v. Andrew case “that hatred is not a word of casual connotation.  To promote hatred is to instill detestation, enmity, ill will or malevolence in another.  Clearly an expression must go along way before it qualifies within the definition of section 319 (2).”  Chief Justice Dickson goes on to say, “hatred in this sense is predicated on destruction and hatred against identical groups therefore thrives on insensitivity, bigotry and destruction of both the target group and the values of society.  Hatred in this sense is a most extreme emotion that belies reason, an emotion that if exercised against members of an identifiable group implies that those individuals are to be despised, scorned, denied respect and made subject to ill treatment on the basis of crude affiliation.”  Under the Canadian system of justice before an accused can be convicted of a criminal offence, the Crown must prove both an “actus reus”, in other words, a physical act or lack of action, as well as a “mens rea” or guilty mind.

This is one reason Canada’s hate speech laws are toothless in practice, the legal precedent has added the need to prove willful intent. Bigots have found an easy way around this, dual coding.

Abortion has been a barbaric reality that over three million pre-born Canadians have had to face since 1969. In the face of a hostile culture and climbing death counts, it is easy to be discouraged. However, we cannot be discouraged. We cannot give up. The preborn are still dying—they still need us desperately. …

Now is the time to put an end to the slaughter.

Now is the time to look evil in the face and say, enough. …

[The Canadian Centre for Bioethical Reform] condemns all forms of abortion-related violence and will not collaborate with groups or individuals who fail to condemn such violence.

Human beings have at least two moral systems, an intuitive one tied to feelings of disgust and contamination, plus a rational one that tries to adhere to rules and logic. The anti-abortion movement in particular has exploited this by mixing emotionally charged language that fans the flames of hatred with sterile condemnations of violence. When someone succumbs to the former and commits an act of violence, they point to the latter and say “not our doing!,” as if there could be any other explanation for the long history of violence in the anti-choice movement. The courts also place greater emphasis on logic and reason over intuitive judgements, in theory, so they’d be biased toward ignoring or downplaying the emotionally charged language.

Transphobes and TERFs will sometimes play from the same book. Most of the time they’ll imply transgender people are violent and horrible, and deserve to have their rights restricted, but then sprinkle in a few comments stating they fully support transgender people and don’t wish them to come to harm. If you wouldn’t let the anti-choice movement get away with that tactic, you shouldn’t let transphobes and TERFs get away with it either.

We demand a higher bar of evidence in the courts than in real life because of the consequences of a false judgement. If a court says Meghan Murphy is guilty of hate speech, fees and jail time may be involved. If I say Meghan Murphy is guilty of hate speech, nothing much happens. You, the reader, are less likely to take her words seriously, you might be more likely to protest against one of Murphy’s events, but that’s all trivial next to what the legal system can do. So while Canada’s Criminal Code is a nice guideline for what constitutes hate speech, I’m not bound to it outside of the courtroom. I don’t think whether Murphy believes she is harming transgender people should matter, when there’s good evidence her words contribute to a climate of fear that harms transgender people.

As such, and based on what I have read, I am justified in saying Meghan Murphy promotes hate speech. She does not have the right to share that speech publicly, and in fact I’d be fine with putting her on trial to see if she could be convicted of hate speech. I suspect she would, but I’d love the opportunity to be proven wrong.