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
Clausen, Hans C., Vanderbilt Journal of Transnational Law
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
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. …