Canadian Court Upholds Free Speech

Is this ad illegal?

According to the trial court in Saskatchewan, it was. When Hugh Owens paid to take out the ad in the Saskatoon StarPhoenix in 1997, both he and the newspaper were brought up on charges of violating the province's Human Rights Code. Owens was ordered to pay $1500 to each of 3 gay men who filed complaints. Now the Court of Appeals in that province has overturned that decision and upheld free speech, at least temporarily (there are more such cases still going on, such as the Stephen Boissoin case).

The Saskatchewan Human Rights Code is a typically ridiculous set of contadictory statements that can be interpreted as narrowly or as broadly as those enforcing its provisions want it to be. In American courts, it would be struck down as unconstitutionally vague in a New York minute, and rightly so. It reads:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

But of course, that last line is just typical bureaucratic BS - of course subsection 1 restricts the right to freedom of expression. It does so by definition. And given a sufficently zealous board of inquiry, can you imagine the vast number of statements such language could be applied to? Even if you don't agree with me that people should be able to express anti-gay views just as they can express anti-anything else views, imagine for a moment a board dominated by religious right types who think that every time someone says "happy holidays" they're insulting Christians.

They could just as easily decide that calling an anti-gay person a bigot "tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity" of Christians. And given the vague language of the statute, there's not much argument to be made against it. But the fact is that in neither case does the expression of disapproval harm the rights of the person being disapproved. You simply do not have any right not to be criticized, period.

And as I have argued repeatedly, we who support gay rights should be the first ones to take a stand in a case like this in favor of free speech. Why? Two reasons, one principled and one practical. the principles reason is that free speech is an absolute prerequisite for a free society and we should support it simply because it's right. The practical reason is this: if you change the political tide slightly, such laws are far more likely to be used against us than against those we oppose. We either support free speech even for those whose speech we find abhorrent, or we put our own at enormous risk.