The "Privilege of Speech" in a "Pleasantly Authoritarian Country": How Canada's Judiciary Allowed Laws Proscribing Discourse Critical of Homosexuality to Trump Free Speech and Religious Liberty

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ABSTRACT

Giving credence to Alexis de Tocqueville's argument that in democratic societies the love of equality is greater than the love of freedom is a recently emerging trend among Western nations to legally proscribe speech critical of homosexuality. Such laws, in various forms, now exist in a large and growing minority of countries in Europe and North America. The goal of these laws is much grander than preventing discrimination against homosexuals; rather, the objective is seemingly to promote the social acceptance of gay and lesbian lifestyles. These laws provide for civil remedies and in some instances even criminal sanctions for speech considered offensive or degrading to homosexuals, and constitutional-rights objections to them--on the basis of speech and religious liberty guarantees--have been largely unavailing. Thus, achieving the social equality of homosexuals--conceived in sweeping terms--has, in many Western countries, outstripped legal protections for speech and religious freedoms.

In this Note, the Author examines Canada's extensive legal regime proscribing speech critical of homosexuality. The Author illustrates how the Canadian judiciary's zeal for promoting the social acceptance of homosexuality has greatly diminished fundamental legal protections for open discourse and religious liberty.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. CANADA'S LEGAL REGIME PROSCRIBING SPEECH
     CRITICAL OF HOMOSEXUALITY
     A. Federal Criminal Penalties for Speech
        Critical of Homosexuality
     B. Provincial Prohibitions of Speech
        Critical of Homosexuality
        1. British Columbia
        2. Ontario
        3. Saskatchewan
     C. Federal Broadcast Regulations of Speech
        Critical of Homosexuality
        1. Federal Actions Against the
           Dr. Laura Schlessinger Show
        2. Federal Actions Against Dr. James
           Dobson's Focus on the Family
        3. Federal Requirements to Broadcast
           Gay Cable Channel
III. A CRITIQUE OF CANADA'S HATE SPEECH REGIME
     AND ITS UNDERPINNINGS CONSIDERING THE
     SUPREME COURT OF CANADA'S DECISION
     IN KEEGSTRA
     A. The State's Putative Interest in Prohibiting
        "Hate Propaganda" The Asserted Values
        Promoted and Harms Avoided by
        Criminalizing Invective Speech
        1. "Balancing" the Value of Free Speech
           Against Its Danger
            i. The Court's Failure Concerning
              the First Value of Open
              Discourse (Promoting the
              Common Good by Finding Truth)
           ii. The Court's Failure Concerning the
               Second Value of Open Discourse
               (Providing for the Needs of the
               Political Process)
        2. Individual "Authenticity," "Fulfillment,"
           and Social Acceptance: The Court's
           Misguided Approach
        3. Curing the Influence of Hate Speech:
           The Court's Endorsement of the
           Paternalistic Control of Speech to
           Ensure the Rationality of Society
 VI. CONCLUSION

I. INTRODUCTION

Alongside Interstate 5 near the town of Chehalis, Washington, U.S.A. sits what local residents have for more than thirty years referred to as the "Uncle Sam billboard." (1) On any given day, the mammoth sign--measuring 640 square feet on either of its two sides (2)--confronts an average of 50,000 commuters traveling north- or southbound with a giant picture of Uncle Sam next to the reactionary political and religious comments, updated frequently and stamped in large block-capital letters, of the billboard's arch-conservative owner, Al Hamilton (3) (a turkey farmer and breeder), (4) or--alternatively--of the fringe John Birch Society. (5) That the billboard has caused much consternation over the years--with anti-homosexual messages such as "AIDS IS A MIRACLE DISEASE. IT TURNS FRUITS INTO VEGETABLES" (6)--does not concern Hamilton. …