When the state gains the power to outlaw certain forms of expression as “hate speech” — a rising demand in some corners of America these days — the result is rarely a decrease in hate but always expanded power for grotesque new forms of bureaucratic busybodying.
I subscribe to an email service that provides me with the Canadian Border Service Agency’s “Quarterly List of Admissible and Prohibited Titles.” This is something the government of Canada produces every few months to inform its citizens which works of “Obscenity and Hate Propaganda” — that is, books, magazines, DVDs, CDs, and sometimes even flyers, posters, and stickers — have been denied entry into their country.
The lists are not long, and the works they declare prohibited are mostly obscure. Canada’s border censors appear far more biased against obscenity than hate, which often makes the lists more lurid than anything else, and prevents them from receiving the sort of attention one might expect for such a bluntly illiberal exertion of state authority. Yet hesitation and awkwardness also expose discomfort with the inescapably authoritarian reality of what Ottawa promised when it passed hate-speech legislation in the first place — legislation Justin Trudeau’s administration has since defended and strengthened.
Canadians do not enjoy a universal right to freedom of speech; expressing and consuming certain ideas and opinions is regulated by law. This is rationalized by the Canadian constitution’s declaration that government has a right to restrain freedoms with “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Ottawa has thus elected to impose “reasonable limits” on speech deemed obscene, seditious, treasonous, pro-terrorist, or hateful. Since “hate speech” tends to be the most controversial category, it’s worth walking through the numerous layers of law and authority that Canada’s government invokes in order to prevent Canadians from, say, reading the wrong sort of book.
Section 319(2) of the Criminal Code of Canada says:
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.
The definition section of 319, in turn, defines an “identifiable group” as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.” (“Gender identity or expression” is a new flourish added by Prime Minister Trudeau’s infamous bill C-16, the controversial legislation that helped make Jordan Peterson a global celebrity for taking issue with it.)
Canadian Code Section 320(8) proceeds to classify “any writing, sign or visible representation” that would constitute a section 319 offense as “Hate Propaganda.” As a criminal good, such propaganda can be confiscated with a warrant of seizure, and Ottawa is obligated to prevent its import from foreign lands.
Tariff 9899.00.00 of the Canadian Custom Tariff schedule thus prohibits the import of any “books, printed paper, drawings, paintings, prints, photographs or representations of any kind” that constitute hate propaganda under the Code’s definition, in addition to media that are seditious, obscene, terroristic, etc.
So far, so abstract. A lot of this rhetoric about “wilfully promoting hatred” of definable groups is obviously deeply subjective, and the Code, it should be acknowledged, does concede a limited right to distribute hateful ideas if it’s believed they were disseminated “for the public benefit” and were, “on reasonable grounds,” believed to be true.
Ottawa has therefore helped clarify matters with a guiding memo known as Memorandum D9-1-15, most recently revised by the Trudeau administration in July 2017, to assist officers of the Canada Border Services Agency in their efforts to identify and prevent “hate propaganda” from entering Canada. Section 8 of the memo reads:
Goods that incite or promote hatred against an identifiable group, by incorporating some or all of the following allegations, may be prohibited as hate propaganda:
(a) allegations that an identifiable group is to blame for serious economic or social problems;
(b) allegations that an identifiable group manipulates media, trade, finance, government or world politics to the detriment of society;
(c) allegations that an identifiable group is inferior or superior to another group; and/or
(d) allegations that an identifiable group weakens or threatens society, in whole or in part.
According to those quarterly updates in my inbox, the government historically has interpreted these powers to ban the occasional polemic spouting extreme anti-black or anti-white racism, anti-Semitism, or anti-LGBT sentiment.
In 2013, for instance, border authorities banned the attempted import of “Communism with the Mask Off,” a 1935 speech by Joseph Goebbels. In 2014, import was denied to a pamphlet by white supremacist Byron Calvert called “Black Invention Myths” that supposedly dispelled the “myth” that African Americans had ever done anything worthwhile, as well as an anti-LGBT documentary called “Sodom” that originally aired on Russian television.
In 2016, entry was denied to a presumably racist documentary about Nation of Islam activist Khalid Abdul Muhammad called “Kill the White Man” by conspiracy theorist Anthony J. Hilder, as well as a book called “The Definition of a Broke Ass” by black supremacist Dawah Yisrael, who calls homosexuality an “assault on the black race” cooked up by whites.
Such prohibitions are rare and, as the above suggests, they tend to manifest mostly as censorship of fringe content considered unambiguously beyond the pale by most of Canadian society. Yet the tools used to achieve this mild social good remain disturbingly broad. The “identifiable groups” that Canadian authorities have a mandate to protect from disparaging claims include human beings of any religion, nationality, gender, or age. Any future administration that elects to enforce its mandate to scrub Canada of “hate propaganda” in a fiercer and more comprehensive fashion would certainly have the law on its side, and as the protection of collective dignities becomes a growing political priority, there’s little reason to err on the side of optimism.
This is what attempting to solve the hate-speech problem looks like: a clique of strange and selective censors raising the ominous question that any arbitrary, conditional protection of human rights inevitably does — “Who’s next?”