Should speech that causes harm be free?

Introduction

In both Canada and the United States there is increasing public outrage at the proliferation of obscene material and hate propaganda. Courts and lawmakers are urged to crack down on the purveyors of filth and hate. Last year the City of New York proposed banning all so-called adult entertainment business - chiefly adult video stores - from most residential and commercial neighbourhoods, restricting them to a few industrial areas. In Canada the Attorneys General are constantly pressed to lay charges against neo-Nazi groups for violation of our hate laws.

In my attempt to follow South African news and the social, political and legal change it is going through, I have noticed reports which suggest that obscenity and the sex trade are increasingly becoming significant problems here as well. Some reports claim that this situation has worsened with the demise of stringent apartheid-era censorship laws. Local newspapers are now apparently plastered with classified adult advertisements for strippers as well as for male escorts. Industrious entrepreneurs armed with cellular phones promise to deliver a pornographic film to your doorstep within an hour. Intriguing descriptions such as Dominance dungeon and Transsexual supergirl adorn these classifieds. Local cafes now unashamedly stock local and imported copies of soft-porn magazines. This is all in stark contrast to South Africa of yesterday where, according to my sources, but a couple of years ago breasts were obscured by stars in magazines. I understand that significant efforts have recently been made to deal with this problem.

A task group headed by Professor Kobus van Rooyen produced a report for the Minister of Home Affairs, Dr. Mangosuthu Buthelezi, in December 1994. This comprehensive report outlined numerous suggestions for censorship in South Africa, responding to the numerous social and legal changes taking place in the country. In particular, the report acknowledged the necessity for substantial change in the law in order to reflect the guarantees outlined in the constitution. The report offers a very thorough analysis of the issues involved in the regulation of various forms of speech and is informed by the experiences of other jurisdictions such as Canada. The report ultimately gave rise to a Draft Bill titled the "Film and Publications Bill" which responded to the concerns and recommendations outlined in the task force report.

Enforcement is not an easy task. Society is divided on the question of the desirability of imposing sanctions against those who disseminate obscenity and hate. Civil libertarians claim that enforcement violates the right to free speech, one of the most cherished of our liberties. Justice Cardozo asserted that freedom of speech forms "the matrix and indispensable condition of every other form of freedom". On the other hand, those who support enforcement contend that there is a limit to free speech and that limit ought to be drawn to exclude protection of both obscene and hate speech. The main difficulty in advancing this contention is in identifying the societal values that enforcement is designed to protect which is sufficient to override our most cherished freedom.

With respect to obscenity, the traditional view has been that obscenity laws were designed to uphold certain community standards of sexual morality. This proved to be unsatisfactory in Canada for two reasons. First, it was a weak reed upon which to rely to override the right to free speech. Second, standards of morality vary widely. To use the overworked observation of Justice Stewart that while he doubted that he could define pornography, "I know it when I see it", each judge might see it differently. 1 This appears to still be the basis for the approach in the United States and may account in part for reluctance of United States courts to enforce obscenity laws.

The values protected by hate laws are also the subject of much debate. While some regard hate speech as generally only offensive in the sense of causing hurt feelings, many contend that hate speech causes real harm.

I intend in these remarks to trace how Canada is resolving these problems and how this contrasts and compares with some of the developments in the United States coupled with some tentative observations about developments in South Africa and how the Canadian and American experience may influence those developments.

The Charter and the Bill of Rights

In order to make my discussion of the Canadian experience intelligible, I must briefly compare our constitutional framework with that of the United States and South Africa. The first Amendment provides that Congress shall make no law "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances". In Canada, s. 2(b) of the Charter states that everyone has the fundamental freedom of "thought, belief, opinion and expression, including freedom of the press and other media of communication". In a similar vein, s. 15(1) of the South African Constitution provides that "every person shall have the right to freedom of speech and expression which shall include freedom of the press and other media and the freedom of artistic creativity and scientific research."

The United States Supreme Court and the Supreme Court of Canada have both given the respective constitutional enactments a broad and liberal construction consonant with the protection of a democratic value as fundamental as the freedom of expression. Moreover, the courts have identified similar rationales which underlie and motivate the freedom of expression.

First, in a number of cases, the Supreme Court of Canada has remarked that the freedom of speech is essential to the pursuit of truth. Similarly, in Whitney v California 2 , Justice Brandeis noted that the freedom of thought and speech are indispensable to the discovery and spread of truth. The famous jurist Oliver Wendell Holmes eloquently and metaphorically expressed the search for the truth as the "power of the thought to get itself accepted in the competition of the market" .3

A second crucial aspect of free speech, recognized by both countries, is to encourage participation in social and political decision making. In order for democracy to function properly, we must ensure that every citizen can contribute to the process of government. 4

Finally, free speech is essential to individual self-fulfilment and human flourishing. Society must be tolerant of a variety of ideas, no matter how unpopular or controversial, in order that everyone may strive to express one's own individuality and ideologies. This benefits not only those who speak, but also those to whom the message is directed as well as society as a whole.

One can see that despite the differing wording employed in s. 2(b) of the Charter and the First Amendment, similar goals animate the protection afforded. I expect that the same consideration will apply in respect of the guarantee in the Constitution of South Africa. However, there are significant structural differences between the Canadian and South African Constitutions on the one hand and the American Constitution on the other. A crucial difference between the former and the latter which, to a great degree, accounts for the distinct analytical frameworks applied in the two countries, is the existence of s. 1 of the Charter and its South African counterpart, s. 33. The Canadian provision permits the government to pass a law which, while violating a right guaranteed by the Charter, is a reasonable limit that can be demonstrably justified in a free and democratic society.

Both the American and Canadian Constitutions recognise that the rights protected are not absolute. Most social issues involve a clash of rights or values. Government action which is challenged is usually promoting an interest which comes into conflict with a protected right. The process of constitutional decisions is the balancing of these competing interests or values: privacy vs. law enforcement, due process vs. protection of victims' rights and free speech vs. public morality.

Under the American Constitution, the balancing takes place in defining the scope of the right. Accordingly, certain kinds of speech are not protected because they are excluded in defining what free speech is. In Canada, and perhaps this will be the case in South Africa, we give the right a broad definition subject to such limits as the government can justify under s. 1. The test which the government must meet under s.1 is, firstly to show a pressing and substantial government objective, and secondly, proportionality between the importance of the government objective and the infringement of the right. Accordingly, laws which violate the freedom of speech can only be justified under s.1 if the government can demonstrate that the legislation serves a pressing and substantial purpose. Secondly, it must be shown that the law is rationally connected to achieving this purpose, that the law minimally impairs the freedom of expression and that the deleterious effects of the limiting measure do not outweigh any benefits to be gained.5

This analysis may seem quite foreign to Americans since the Bill of Rights has no equivalent to s. 1 of the Charter. Therefore, a law which violates the first Amendment will simply be found unconstitutional. Any balancing must occur within the confines of the definition of the right. This has led the United States Supreme Court to develop a number of subsidiary doctrines which are not explicitly relied on in the Canadian jurisprudence. For example, in R. v Keegstra 6 the Supreme Court of Canada preferred not to adopt the categorization approach where varying "levels of scrutiny" are applied to restrictions on expression. American doctrines such as the "clear and present danger test" and the presumptive invalidity of "prior restraints" and "content discrimination" do not exist as formal doctrines in Canadian constitution analysis. Rather, s. 1 of the Charter requires a flexible balancing of the conflicting values in a contextually sensitive manner. This permits the court to take into account the particular type of speech restricted and the goals sought by the legislation in the factual and social context in which the issue arises.

The Supreme Court of Canada has stated that not all types of speech will be afforded equal constitutional protection. Therefore, it might be somewhat easier for the government to justify the infringement of free speech where the type of expression involved is more tenuously connected to the core values underlying s. 2(b). For example, in Irwin Toy 7 , although commercial advertising aimed at children was held to be a form of expression which was protected by s. 2(b) of the Charter, a ban on such expression was found to be a reasonable limit on free speech in order to protect a vulnerable group such as children.

Although we have the same view as to the purpose the protection of free speech as the Americans, our courts have tended to be more deferential to governmental restrictions on freedom of expression. This is due to a number of factors. Canada evolved in a tradition of parliamentary supremacy where legislative decisions are final. Moreover, s.1 of our Charter specifically permits the government to justify infringements. As well, we have not experienced an assault on free speech such as the McCarthy era and perhaps have less fear of free speech abuses. In this respect, South Africa is similar in many ways to Canada. Its Constitution is patterned after ours. It remains to be seen whether the Constitutional Court in South Africa will adopt the approach of the Canadian or the United States Supreme courts or something in between.

Free Speech and Obscenity

The law of obscenity has historically been based on existing notions of morality. The earliest mention of obscenity in the Criminal Code did not provide any definition for what was obscene and what was not. The Criminal Code of 18928 made it a crime to sell or expose to public view those materials "tending to corrupt morals". Absent any definition of obscenity, the courts turned to the judgement of C.J. Cockburn in R v Hicklin 9 for further direction.

This 1868 case involved a work entitled The Confessional Unmasked. This publication was a crude piece of anti-Popish propaganda which claimed to reveal techniques used by priests to extract erotic confession from female penitents. Publication was encouraged by the Protestant Electoral Union which was pledged to the abolition of the Catholic Emancipation Act of 1828 and which wanted to discredit the Catholic church. Copies of The Confessional Unmasked were seized from the premises of an evangelical Wolverhampton metal broker who intended to sell them without profit to like-minded Anglicans.

The case is not important for its outcome and certainly not for the risque character of the book. This case is really only of interest for the way it attempted to define obscenity. Cockburn C.J. described the test for obscenity as "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication of this sort may fall". 10

Not only was this test highly subjective, evaluating material based on its tendency to deprave and corrupt morals requires abilities not normally associated with the judiciary. Although I have extreme confidence in the judiciary, I presume most Canadians would rather not have judges determine what books and videos might corrupt their morals. The judiciary is not supposed to be morality police.

In 1959 the predecessor of s. 163 of the Criminal Code was introduced, which for the first time contained a more detailed definition of obscenity in s. 150(8):

"(8) For the purpose of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."

Although it was the hope of many that this definition replaced reliance on the "Hicklin rule", the preservation of morals continued to dominate the thinking of the judiciary. 11 Accordingly in R.v Brodie Lady Chatterley's Lover barely made it when the Court split five to four. Only three of the five judges in the majority thought that the new definition replaced the Hicklin rule and even they appeared to apply it in a modified form. Judson J. summed up as follows:

"It has none of the characteristics that are often described in judgements dealing with obscenity-- dirt for dirt's sake, the leer of the sensualist, depravity in the mind of an author with an obsession for dirt, pornography, an appeal to a prurient interest, etc." [Emphasis added.]

The Court added that the serious-minded author must be allowed some freedom in the production of a work of genuine artistic merit. But in R. v Cameron, 12 a 1966 case, Dorothy Cameron, who held an art exhibit in her gallery which showed a number of nude women kissing and some rather bland heterosexual sex acts, was convicted of obscenity and the conviction was upheld by the Ontario Court of Appeal. This Court stressed that anything that tends to offend the community standards of morality is obscene. Our Court first recognized that publications which were degrading or dehumanizing could cause harm to society in Towne Cinema Theatres Ltd. v The Queen. 13 It was not clear, however, how "harm" was defined nor what role it played.

In 1982 Canada adopted the Charter of Rights and Freedoms. In one of the early cases under the Charter, the City of Windsor sought to do what Major Giuliani proposed in New York: rid the city of adult entertainment establishments. One of the proprietors attacked the by-law on the grounds, inter alia, of breach of the Charter. 14 The Court was of the view that this was not the kind of speech which the Charter was designed to protect. This early approach was similar to the American practice in that restrictions on free speech were achieved by excluding from the definition speech that which was deemed not worthy of protection. This approach was short-lived and gave way to an inclusive definition of free speech subject to such reasonable limits on its exercise as could be justified under s. 1. Accordingly, all expression which attempts to convey meaning, except violent speech (i.e. threats), is initially protected.

It was in this state of the law that the Butler case 15 arrived in our Court. Butler operated a "hard core" video boutique in the City of Winnipeg. A sign outside his store warned the public that "if sex-oriented material offends you, do not enter". The police did enter and apparently were offended because he was charged with over two hundred counts of violating the obscenity provisions of the Criminal Code. The trial judge convicted on eight counts and his appeal failed in the Court of Appeal. The majority was of the opinion that the Charter did not protect the activity in question.

We had no difficulty in coming to the conclusion that the material that formed the basis of the charges was intended to convey meaning. The portrayal of human sexuality in whatever form seeks to tell something about human life. The videos were, therefore, expression that was protected under our free speech guarantee. The section of the Criminal Code (163(8)) which made it an offence to sell or lease the material would have to be justified as a reasonable limit on free speech.

The first hurdle, and the toughest one in this case for the government, was to show that the purpose of the law met a pressing and substantial objective of the government. As has been stated, the early history of obscenity law of Canada was firmly based on the Hicklin case decided in England in 1868. Protection of society from corruption of its morals was its purpose. The Criminal Code had, however, been amended in 1959 to provide a definition of obscenity. Under this provision the material had to have the undue exploitation of sex as its dominant characteristic. It was unclear, however, whether this new definition had a different purpose than the Hicklin rule. The cases to which I have referred, such as Cameron, still adhered to the morality rationale. In Butler the government appreciated that protection of morals was an insecure foundation for justification of the infringement of free speech and therefore contended that the principle objective was to prevent harm to society. This position was supported by the Womens' Legal Education and Action Fund or LEAF, a feminist organization funded by the government. The Legal Education and Action Fund had retained Catherine MacKinnon, a prominent anti-pornography feminist, to assist in the preparation of its brief.

I concluded that the law could be saved on the basis that the purpose in enacting the new provision was to prevent harm to society. Harm in this sense meant material that predisposes persons to act in an anti-social manner, as for example the mistreatment of women by men and vice versa.

Accordingly, exploitation of sex would be undue if it caused harm in the sense referred to above. This was not to be determined on the basis of the individual tastes of trial judges but on the basis of community standards. The Court must determine what the community would tolerate on the basis of the degree of harm that might flow from exposure to the materials. The stronger the risk of harm, the less the likelihood of tolerance on the part of the community. In order to further define what is undue I divided pornography into three categories: explicit sex with violence, explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; and explicit sex without violence that is neither degrading nor dehumanizing. Material in the first category will almost always be obscene. Material in the category will be obscene if the risk of harm is substantial. Material in the third category will not be obscene unless it employs children in its production. I ordered a new trial.

When the decision was announced, both those in the business of disseminating pornography and those opposed claimed victory. The New York Times ran a half -page story featuring a picture of Catherine MacKinnon claiming that our Court was the first court in the western world to recognize harm as the basis for anti-pornography legislation. On the other hand, the video industry rejoiced that explicit per se was now approved. The Chief Justice of Manitoba sent me an advert which advertised explicit sex as "approved by the Supreme Court of Canada". I replied that I thought it was poor advertising because the public would assume that if we approved of it, it must really be dull.

A recent article in the New Yorker 16 by Jeffrey Toobin observes that Butler has not turned out to be the panacea that many thought it would be. In the writer's opinion, the pornography industry is booming as never before, but gays and lesbians "who were nominally among the beneficiaries of the decision, have continued to come under attack". This is attributed primarily to the fact that the police do not understand the decision and customs officials are busily seizing material at the border on the basis of old definitions of obscenity which ignore Butler. But perhaps the strangest development is that it now appears that LEAF did not represent the common view of feminists. It turns out that there are feminists on both sides of this issue. In contra-distinction to the view of Catherine MacKinnon, Nadine Strossen, a feminist and the President of the American Civil Liberties Union, is strongly against state censorship of pornography suggesting that, in the end, it would harm the cause of feminism by suffocating the environment in which women are free to explore ideas about sexuality. 17 Strossen is extremely critical of feminists such as Catherine MacKinnon, claiming that her brand of "pornocentred feminism" has never advanced the equality of the sexes. Rather, the state is merely being authorized to bring its censors into our bedrooms and book stores.

This group, which has its Canadian counterpart, was apparently content to have LEAF purport to represent the view of "feminists" before the Court but now wishes to complain that its views were not respected. A Canadian lawyer who describes herself as a feminist and acts for a book store catering to gays and lesbians is quoted as stating, "But what becomes clear is that the courts don't understand that there are feminists on both sides of the censorship issue". 18 Perhaps next time we will hear from them.

I should add that Butler recognized what is called an "internal necessities" test which applies to protect a work if undue exploitation of sex is not its main object but is essential to a wider artistic, literary or similar purpose. For example, a scene from a play or motion picture may by itself constitute the undue exploitation of sex but when viewed in context it may serve a wider purpose. In South Africa, artistic and scientific activity is constitutionally protected by s. 15. This guarantee has been reflected in the Film and Publication Draft Bill which states in schedule 5 that there will be an exemption for "bona fide technical, professional, educational, scientific documentary, literary or artistic publication...".

The exploitation of sex involving children has received special attention in Canada. In Butler, I stated that explicit sex which does not involve violence and is neither degrading or dehumanizing will generally not be considered to be obscene unless it employs children in its production. The government of the day followed this up by enacting a special provision dealing with child pornography. It is an offence to show a person depicted as being under 18 years of age engaging in explicit sex, or to make any visual representation the dominant characteristic of which is the depiction for sexual purposes of a sexual organ. Mistake as to age is not a defence unless due diligence has been exercised to ascertain the age of the person involved in the depiction. Section 163 (1)(6) relieves individuals from criminal liability if the work - despite the fact that it involves children in some sexually explicit manner - is deemed to have some artistic merit or an educational, scientific or medical purpose.

The issue of when art ceases to be art and becomes pornography has caused much controversy, especially in North America. The sexually explicit drawings of Robert Mapplethorpe caused an uproar as they travelled from city to city in the United States leaving in their wake those who lauded Mapplethorpe as a modern master of the human condition and others who derided him as a perverted purveyor of smut. Canadians have also recently been exposed to the same debate. A Canadian artist, Eli Langer, had five oil paintings and thirty-four pencil sketches confiscated by the police because the works were believed to be in contravention of Criminal Code provisions dealing with child pornography. In this case, the works depicted as participants in the acts of sexually arousing adults and engaging in oral and anal sex. The judge deciding the case found that the work had artistic merit and was not subject to the provisions of the Code. The judge also noted, however, that this Criminal Code provision was not constitutionally invalid as a violation of the freedom of expression. The judge said:

"For artistic merit to flourish, artists must be able to test the limits, to provoke and challenge and, of course, to fail ...But in the end, society's interest in protecting its children is paramount, and where the safety of the children is concerned, community standards of tolerance based on the risk of harm are more important than freedom of expression, no matter how 'fundamental' that freedom may be to a free and democratic society."

An even more recent issue for the Canadian courts is how the federal criminal law interacts with the provincial authority to set up film approval boards to determine those films and videos community standards will tolerate and those which it will not. Section 163 of the Criminal Code makes it an offence to "knowingly, and without lawful justification or excuses", sell obscene materials. The difficulty arises when a provincial film review board approves a film as suitable for the public consumption, yet when the material is bought before the court it is found obscene according to the Code provision. If the accused relied on the Film Board approval, can he be said to have "knowingly" sold obscene material?

Furthermore, does the film board approval provide a lawful justification or excuse to relieve the accused from conviction ? This difficult issue is now before the Supreme Court for deliberation . It is an issue, however, that South African legislatures seem to have avoided by opting for an administrative model with boards specifically responsible for these determinations.

The pornography industry represents one type of expression for which both Canada and the United States have accepted limitations on free speech, though not entirely based on the same rationale, nor to the same degree. As I understand the cases under the First Amendment they continue to adhere to the appeal to prurient interest as the critical indicia of obscenity. In a leading case, Miller v California 19 ,the United States Supreme Court defined obscene material as a work which contemporary community standards would find appeals to a prurient interest, depicts sexual conduct in a patently offensive way and taken as a whole, lacks serious literary, artistic, political or scientific value. Only material which falls within the definition of obscenity is not entitled to constitutional protection under the First Amendment

As a result, in the United States, freedom of speech usually triumphs over alleged harm to society. This is rather dramatically illustrated by a decision of the United States Court of Appeals, Seventh Circuit, in American Booksellers v Hudnut 20 which was affirmed by the Supreme Court. At issue in that case was the constitutional validity under the First Amendment of an Indianapolis ordinance prohibiting pornography which was defined as the "graphic sexually explicit subordination of women, whether in pictures or words". The ordinance sought to proscribe depictions such as those of women being treated as sexual objects who enjoy pain and humiliation, or being raped, tortured or mutilated. The ordinance was clearly aimed at preventing the display of scenes of degradation, torture and exploitation. In Canada, it is very likely that materials falling within these categories would be successfully prosecuted under the obscenity provision of the Criminal Code.

Nonetheless, the ordinance was held to be unconstitutional as an impermissible restriction on the content of speech. The legislation did not conform with the strict guidelines defining obscenity in the Miller decision and it amounted to viewpoint discrimination. The Court Appeals condemned the ordinance as a form of thought control which restricted speech no matter how great the artistic, literary or political value of the work as a whole. Dictating an approved view of women could not withstand First Amendment scrutiny. Even though the Court accepted the premise of the legislation that depictions of the subordination of women, such as the portrayal of women enjoying rape or humilation may lead to social inequality and even physical harm, it held that this merely demonstrates the power of pornography as speech and its ability to affect how people see the world.

The nature of the material sought to be censored by the legislation was strikingly revealed in the record before the Court. Included were extremely violent works depicting sexual torture, such as the penetration of women by red-hot irons. Given that these works would fall into either of the two categories of pornography defined by Butler, namely explicit sex with violence or explicit sex which degrades and dehumanizes, it is quite likely that such material would violate the Canadian obscenity law.

I would not presume to attempt to impose the solution which we have adopted as the one that American or South African courts should follow. I believe that the harm test is the one that is more in keeping with our culture and our history. I have no doubt that the Miller test reflects the values which American hold most dear. We are always being asked how we differ from Americans. Perhaps this is one of the ways, not withstanding that Jeffrey Toobin compares Yonge Street in Toronto with Times square.

Free Speech and Hate Propaganda

The second area of the law in which perceived harm to society has played a role in respect of different approaches to free speech is the law relating to hate speech. This is also an area where Canada and the United States significantly part ways in terms of accepting limitations on free speech. The United States has consistently held that hate speech is protected under the First Amendment unless it is likely to incite imminent lawless action. 21 Restrictions on hate speech are regarded as content-based regulation and therefore are presumptively invalid. In R.A.V v St Paul 22 , a majority of the United States Supreme Court held that restricting hate speech aimed at individuals of a particular race, colour, religion or gender is a form of viewpoint discrimination which is not permissible. The minority decision in R.A.V. agreed with the result, however, on the basis that the law in question was overly broad. While recognizing the potential harm caused by such expression, the United States Supreme Court has stated that if there is time to expose the harm by the processes of education then the appropriate remedy is more speech rather than repressing the expression 23

The situation in Canada is quite different. In R v Keegstra, the Supreme Court of Canada considered the constitutionality of the Criminal Code provision which criminalises publicly and wilfully promoting hatred against an identifiable group. 24 Keegstra, a school teacher, was charged under the Code for spreading hateful, anti-Semitic messages to his students. The Court was unanimously of the view that such expression conveyed meaning in a non-violent manner and therefore, the law violated s. 2(b) of the Charter. However, the Court split four to three regarding whether the law was a reasonable limit demonstrably justified in a free and democratic society under s.1 of the Charter. The majority focused on the potential emotional and psychological harm as well as the threat to dignity that is created by racist speech. The goal of the legislation is also to eliminate the religious, racial and cultural animosity and tension created by such forms of speech. The entire Court agreed that the objective of the legislation was indeed pressing and substantial in a society that prides itself on tolerance and the respect for human dignity. The promotion of equality and multiculturalism, which are values enshrined in s. 15 and s. 27 of the Charter, also influenced the majority as hate propaganda is inimical to these aims.

The majority considered hate propaganda, like obscenity, to be of limited importance when measured against free expression values given that the malicious nature of the speech contributes little to the quest for truth, individual fulfilment or democracy. It was held that there was a rational connection between the legislation at issue and the goal of reducing harm to members of identifiable groups subject to racism. Moreover, the majority concluded that the law minimally impaired free speech since the proscription did not cover private communications and only applied where a stringent subjective mens rea of wilfulness was met. Finally, the Court stated that the enormous importance of the state objective of dissipating racism outweighed any adverse effect on the freedom of expression given that this speech is tenuously connected with the values protected by s. 2(b) of the Charter.

The minority reasons conceded that hate propaganda constitutes an affront to tolerance and the dignity and equality of all individuals. However, the minority was of the view that, although the law had a pressing and substantial purpose, it failed to meet proportionality test under s. 1.

It was argued that the law in question was not rationally connected to the goal of the legislation since it was far from clear that the means chosen was an effective way of erasing racism. In fact, it is possible that the publicity generated by the prosecution of Keegstra may have even furthered his cause. Nor did the minority accept that the legislation minimally impaired the freedom of expression. The proscription was drafted too broadly such that it could potentially catch expressive activity falling outside the valid objectives of the legislation. Moreover, due to the inherent vagueness of the word “hatred”, the impugned provision could have a serious “chilling effect” on legitimate speech.

From the foregoing, it is clear that the issue of hate propaganda had a divisive effect on the Supreme Court of Canada. It is notable that a somewhat similar provision to s. 319 of the Criminal Code was struck down by the United States Court of Appeals, 7th Circuit in Collin v Smith on the grounds of overbreadth. 25 Ultimately, Canada chose a different direction for the protection of free speech in this context. While the neo-Nazis were permitted to march in Skokie, the same may not be true of the streets of Toronto. Time will tell whether the Supreme Court of Canada will remain as deferential to the government on other hard issues concerning free speech.

The balancing act that Canadian courts have managed may be even more difficult for the South African court. Years of conflicts between various groups may argue in favour of affording more weight to social peace and reducing inflammatory rhetoric than allowing undesirable hate speech. Full reconciliation may argue in favour of a more controlled and constructive dialogue. On the other hand, it may be viewed that the best approach is to allow the rhetoric to be given its voice so that the opposing forces know the enemy and can respond with full verbal force on the battlefield of ideas. Indeed, it is often those societies whose freedom of speech has been curtailed who are often its most ardent defenders, despite some of the undesirable ways some individuals chose to exercise their right. Furthermore, experiences in certain countries suggest that attempts to limit undesirable speech can have unintended results. Experiences in England, Germany and the United States suggest that the laws which attempt to curb hate speech can be applied to effectively curb the speech of blacks, trade unionists and anti-nuclear activists.

Conclusion

A comparative review of the Canadian and American jurisprudence with respect to the freedom of speech reveals certain differences in the level of protection granted. In part, this arises from the distinct political, social historical and constitutional contexts of the two countries. Nonetheless, in many areas, substantially the same degree of protection exist. While the constitutional jurisprudence in both countries must continue to evolve in accordance with the traditions unique to each, the similarities between Canada and the United States provide a valuable opportunity for mutual assistance in the solution of these difficult social issues.

The two hundred years of American experience with its Constitution have been of immense assistance to our Court as we grapple with our new Charter. We have made abundant use of American jurisprudence and, while we have not blindly followed it, it enabled us to make changes more wisely on the basis of genuine differences in our respective political and social climates. An eminent American writer, in a recent publication entitled Fighting Words, 26 concludes that we have benefited from being second in the field. Comparing our approach in balancing community values and individual rights he states: 27

“It is hard not to be attracted by the flexible and intelligent evaluation of the Canadian Supreme Court that seems to be much more sensible than the categorical boxes and blindness to nuances of dominant American approaches. However, the cost of following the Canadian path would also certainly be reduced protection for expression.”

This augers well for the interpretation of the South African Constitution. Your courts can profit from not only the mistakes of the Americans, but from the more recent mistakes of the Canadian court. I believe that although our history and social make-up are different, our constitutions suggest that our goals and approaches are very similar. Although the American courts have shown no inclination to refer to Canadian decisions, we in Canada find that there is much to be gained from the judicial experience of other jurisdictions. In this regard, we expect that the decisions of your courts will be of assistance to us in the future. In grappling with the difficult social issues with which we are often confronted, we take help wherever we can get it. Isn’t this typically Canadian?

Notes

1. Jacobellis v Ohio 378 U.S. 184 (1964).

2. 274 US 357 (1927).

3. Abrams v United States 250 US 616 (1919) per dissenting reasons of Justice Holmes.

4. Globe Newspaper Co v Superior Court 457 US 596, 604 (1982).

5. R v Oakes [1986] 1 SCR 103.

6. R v Keegstra (1990), 61 CCC (3d) 1 (SCC) per Dickson J at 32.

7. Irwin Toy Ltd v Quebec [Attroney General], [1989] 1 SCR 927.

8. Criminal Code, SC 1892 c 29, section 179.

9. R v Hicklin (1868) LR 3 QB 360.

10. R v Hicklin supra at 371

11. R v Brodie [1962] SCR 681

12. [1966] 2 OR 777.

13. [1985] SCR 494.

14. Re 538745 Ontario Inc v Windsor (City) (1988) 64 OR (2d) 38.

15. [1992] SCR 452.

16. “X-rated”, The New Yorker, October 3, 1994.

17. See Thelma McCormack “Civil libertarian v ‘pornocentred feminism’” reviewing the book by Nadine Strossen entitled Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights in Toronto Star, Febaruary 18, 1995.

18. “X-rated” The New Yorker, October 3 1994 at 75.

19. 413 US 15 (1973).

20. American Bookesellers Association Inc at al v Hudnut 771 F 2d 323 (UCSA, 7th Cir, 1985) affirmed 106 SCt 1172 (1986).

21. For example, see Brandenburg v Ohio 395 US 444 (1069).

22. 112 Sct 2538 (1992)

23. Whitney v California 274 US 357, 377 (1927) per Brandeis, J.

24. Criminal Code RSC 1985 c. C-46

25. 578 F2d 1197 (7th Cir 1978)

26. Kent Greenawalt Fighting Words: Individuals, Communities and Liberties of Speech Princeton University Press (1995).

27. Review by Jeffrey Simpson Globe and Mail July 1, 1995.