Censorship, Logocracy and Democracy
Mark Walker
McMaster University
Introductory
Arguably, there are two main traditions of thought about free speech.1 One involves
assessing the consequences that might flow from restricting or permitting freedom of expression.
Thus, according to Mill, allowing freedom of expression does more to promote the good or
‘utility’ than allowing censorship. By ‘utility’ Mill means “utility in the largest sense, grounded
on the permanent interests of man as a progressive being”, and permitting freedom of expression
promotes this goal.2 Others have argued that not all forms of free expression can be justified in
terms of promoting the good.3 This debate is explicitly consequentialist in its reasoning because
the question of freedom of expression resolves to the question of whether permitting it tends to
promote the good. The other tradition turns on the notion of ‘rights’ where freedom of expression
is conceived of as a right held by individuals against governments. Proponents argue that this right
should be honoured, even if in doing so, less aggregate good results.4 Thus Ronald Dworkin says,
“when someone claims a right of free speech, for example, then it would be wrong for the state to
prevent him from speaking on some matter even if the general welfare would be improved by
preventing him from speaking".5 Even when the debate is located within the realm of rights the
matter is not closed, as opponents have countered that without certain types of censorship the
rights of some groups (e.g., women and minorities) will be violated.6
W. Sumner, “Hate Propaganda and Charter Rights,” in W. Waluchow eds., Free Expression: Essays in Law and
Philosophy, (Oxford: Clarendon Press, 1994) 153, [Sumner, “Hate”]; S. Dwyer, S. 2001. “Free Speech” (2001) 2
Sats: The Nordic Journal of Philosophy 1 [Dwyer].
2
J. S. Mill, On Liberty, (Indianapolis: Hackett Publishing Press, 1978).
3
Sumner, “Hate”, supra note 1.; Dwyer supra note 1; Stanley Fish, There's No Such Thing as Free Speech...and it's a
good thing too, (New York: Oxford University Press, 1994).
4
Thomas Scanlon, “A Theory of Freedom of Expression,” 1 Philosophy and Public Affairs (1972) 204; Ronald
Dworkin, Taking Rights Seriously, (Cambridge: Harvard University Press, 1977) [Dworkin, Seriously]; Thomas
Nagel, “Personal Rights and Public Space,” 24 Philosophy and Public Affairs (1995) 83; Dwyer, supra note 1.
5
Dworkin, ibid., at 364.
6
Andrea Dworkin, Pornography: Men Possessing Women. (London: The Women's Press, 1981). Catherine
MacKinnon, Feminism Unmodified, (Cambridge: Harvard University Press, 1987); [Mackinnon]; Rae Langton,
“Whose Right? Ronald Dworkin, Women, and Pornographers, ” (1990) 19 Philosophy and Public Affairs 311
[Langton]; Mari Matsuda, “Public Response to Racist’s Speech: Considering the Victim’s Story”, in Words that
Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, edited by M. Matsuda, et al., (Boulder
Colorado: Westview, 1993) [Matsuda]. For further assessment see Susan J. Brison, “The Autonomy Defense of Free
Speech,” (1998) 108 Ethics 312; Joshua Cohen, “Freedom of Expression,” (1993) 22 Philosophy and Public Affairs
1
1
A less traveled path is to connect the issue of freedom of expression directly with
democracy, not through intermediary notions such as ‘the good’ or ‘rights’.7 The argument I shall
make is in this tradition. I will argue that there is a logical contradiction between a certain
understanding of the democratic commitment to free and fair elections and certain types of
restriction of expression.8 We will work with Canada’s “hate speech laws” as our example, but it
may well apply to other jurisdictions and other types of content censorship.9 To make the case, we
will need to distinguish between ‘multilateral censorship’ and ‘unilateral censorship’. The former
silences all opinions on some subject matter; the latter silences a single view. I shall argue that
multilateral censorship is compatible with democratic rule, but unilateral censorship is not.
Applying this distinction to Canadian hate speech laws will reveal that they are a form of
unilateral censorship. I will then argue that multilateral censorship is so unappealing that the only
significant choice is between permitting freedom of expression or logocratic governance:
legislating political inequality through content restrictions on speech.
Before proceeding, I should note that for the first half of this paper, the term ‘democracy’
(and its cognates) is used interchangeably with the procedural requirement of equality in the
electoral process, specifically a ‘free and fair vote’ (and its cognates) and competition among
207; Wayne Sumner, 2004. The Hateful and the Obscene: Studies in the Limits of Free Expression, (Toronto:
University of Toronto Press, 2004) [Sumner, Hateful].
7
In historical terms, this tradition of argumentation can be traced back through to Alexander Meiklejohn, (e.g., Free
speech and its relation to self-government, (New York: Harper and Brothers, 1948)) [Meiklejohn]. A detailed
comparison with Meiklejohn is beyond the scope of this paper, so I will confine myself to a couple of points. First,
the argument I make is a little more modest than Meiklejohn’s because I am not certain that all forms of censorship
are incompatible with self-rule. Meiklejohn too allows certain restrictions on freedom of expression, but not in the
same way. One of his innovative moves is to distinguish two types of liberty of speech: one that we enjoy qua
sovereign and one that we enjoy qua subject. The latter can legitimately be infringed upon by the government, the
former cannot. In this paper I concentrate on political expression that falls under the liberty of the sovereign, and so
one that Meiklejohn believes can never be restricted (at least in terms of content) by governments. A second major
difference is that Meiklejohn examines what makes for good self-rule, whereas I am focusing on what is required for
self-rule simpliciter.
8
Dywer offers what appears to be a different classification of these issues, since under the heading of consequentialist
arguments she includes this one: “representative democracies function best when their citizens have maximum access
to information ….are able to participate in public debate to persuade and be persuaded by others…” supra note 1 at 1.
This does seem to me to be a form of consequentialist reasoning. However, what I am proposing to examine here is
not what might be effective in promoting democracy, but rather, what is required for democracy. In other words, part
of what I propose to do here is to look at the preconditions for democracy, that is, to construct a transcendental
argument that purports to demonstrate a logical connection between the notion of a free and fair vote and certain
forms of free expression. I use ‘transcendental argument’ here in the broad sense delimited by Robert Stern,
“Introduction” in Transcendental Arguments: Problems and Prospects, edited by Robert Stern, (Oxford: Oxford
University Press, 1999).
9
Jurisdictions that have some form of hate speech laws include many European nations, Iceland, Australia and New
Zealand. In fact it is probably fair to say that this is the norm among those commonly labelled ‘liberal democracies’,
with the U.S.A standing as a notable exception. Other issues of censorship that may be relevant to this argument
include the censorship of pornography and “kiddie porn” (Stan Persky and John Dixon, On Kiddie Porn: Sexual
Representation, Free Speech and the Robin Sharpe Case, (Vancouver: New Star Books, 2001)).
2
candidates. This understanding of ‘democracy’ is admittedly much narrower than is often used in
connection with contemporary polities, for example, most would probably add further conditions
as to what might count as a ‘democracy’, such as adding a list of individual rights, a market
economy, a fair and effective judicial system, etc. In the second half we will discuss the relation
between democracy and free and fair elections. As we shall see, it is possible to wonder whether
the definition above is also too broad because doubts might be raised as to whether free and fair
elections are strictly necessary for democracy.
Rex Versus Demos
The suggestion that there is a connection between Canada’s hate speech laws and democratic
elections may seem puzzling given the historical circumstances surrounding the framing of hate
speech laws in Canada. There are obvious and agreed-upon cases where elections are not free and
fair, e.g., instances where the incumbent arranges for a lack of polling stations in areas known to
be favourable to the opposition, and the use of military force around polling stations to intimidate
or otherwise coerce the electorate. These are tried and true means to ensure elections are not free
and fair. However, Canada’s original hate speech legislation was passed in 1970, and there is no
particular reason to think that the electoral process in this period was not free and fair.
Furthermore, a number of federal elections have been held since, with several changes of
government, and so it seems there has been plenty of opportunity to repeal the legislation via a
free and fair vote. So, admittedly, the claim that Canada’s hate speech laws undermine free and
fair elections looks implausible. However, I hope to show that even if we grant that some piece of
legislation (such as hate speech legislation) is passed in a free and fair election, this is not
sufficient to show that such legislation is democratic, for a democratically arrived-at decision can
lead to undemocratic results. I will argue further that certain types of restrictions on speech lead to
undemocratic results.
To make our argument, it will help initially to abstract away from the complex political
arrangements of modern state democracies including notions such as individual rights. Let us then
consider a somewhat fanciful example: imagine three hundred shipwrecked individuals found
themselves washed-up on a deserted island. At a meeting attended by all it was decided that they
should adopt some form of government. A debate ensued over whether they should institute a
3
monarchy or a democracy, with two individuals emerging as particularly impassioned and
persuasive. Rex argued for the idea of a monarchy based on the premise that a democracy is a
luxury the castaways simply could not afford. According to Rex, democratic decisions take too
much time, and are open to compromise in a way that undermines the ability to make tough
decisions. In response, Demos said she was not proposing a system of democracy that protects the
rights of an individual against the interests of the majority, and so there was every reason to
suppose that the tough decisions could be made.10 So long as decisions or rules received a
democratic majority, she and her fellow supporters would abide by the will of the majority.
Demos acknowledged that democratic decisions may take more time, but she was concerned
about a moral principle underlying democracy: it ensures political equality: everyone is provided
the opportunity and dignity to participate as equal legislators in the life of the community, that is,
everyone is given an equal chance to say how the community is governed. In this respect
democracy differs drastically from a monarchy where the voice of one is pre-eminent, and
oligarchies where the voices of some are pre-eminent. Demos asserted that she and at least a
couple of dozen others felt so strongly about this moral principle—equal opportunity for political
representation—that they were willing to take up arms against any who would attempt to institute
some other form of government. Rex and his supporters conceded that any advantages of a
monarchy would be outweighed by the costs of a civil war with Demos and her followers. So, it
was agreed by all that they should form a democracy where a simple majority vote would decide
what would be done and what rules would be observed.
While Rex had lost the first round, he was not out. His next move was to propose the
“Rex-is-right law”: anyone who did not vote with Rex would be summarily shot. Rex noted in
passing that Demos was in no position to complain that such a policy would violate the rights of
individuals, e.g., the right to life, or a right to trial, because it was agreed that individuals had no
such rights. The motion was carried: 151 in favour of Rex-is-right legislation, and 149 against.
(Apparently the law would not be applied retroactively, so no one was executed).
Not surprisingly, there was unanimity on subsequent votes. People would passionately
debate an issue, but when it came to the crunch of a vote, everyone voted with Rex. A week later
I have taken ‘Rex’ and ‘Demos’ from Wil Waluchow’s Waluchow, A Common Law Theory of Judicial Review: The
Living Tree, (New York: Cambridge University Press 2007).
10
4
Rex remarked to Demos that he had to admit that she was in fact correct all along: democracy is a
very good thing. Demos replied that it was farcical to call their system of government a
democracy. The threat of death prohibited people from casting their vote in a manner consistent
with a commitment to democracy. Demos said that the appropriate way to understand what
transpired a week earlier was that people voted to make Rex a monarch. One of the virtues of
democracy, according to Demos, is that it allows for the possibility of transforming to nondemocratic governance in a peaceful fashion. It is true that the group still performed the ritual of
voting on issues, but votes at this stage could not be properly called a democratic vote. To say that
the vote was made in a democratic manner was as absurd as if Rex’s henchmen were to cut off the
hands of those that didn’t agree with Rex and raise the severed hands saying, “Look even our
opponents’ hands are raised in agreement”.
The case of Rex and Demos is intended to remind us that the mere formality of counting
votes is not sufficient to say that the democratic process of a free and fair election has been
respected. A precondition for a free and fair vote is the absence of the sort of coercion described
in this example. We should also note that the fact that legislation is passed in a manner consistent
with democratic rule is not sufficient to say that the legislation itself enacts conditions that
preserve democracy. In other words, wittingly or unwittingly, members of a democracy may
democratically vote to move to something other than a democratic form of government. Indeed,
this is what happened in the vote on the Rex-is-right legislation: there was nothing in the
description of what transpired to suggest that the vote did not respect democratic procedures, but
subsequently they no longer had a democracy. So, in passing this legislation, the marooned moved
from a democratic form of government to an undemocratic form of government. The vote made
Rex the de facto (if not the de jure) king.
With these points in hand, I want to argue now that voting for a certain form of censorship
yields an equivalent result, namely, it is a vote to usurp democratic procedures. Let us return to
our fledging “democracy”. Rex, not being an unreasonable man, was persuaded that decisions
arrived at under the threat of physical violence were not consistent with democracy. Rex proposed
to rescind the Rex-is-right law and the castaways passed the motion. Inspired by the censorship
laws in his native land, in its place he proposed the “don’t-contradict-Rex” law. This legislation
was designed to make it illegal to speak against any legislation Rex would like to see enacted. The
5
penalty for speaking contrary to Rex’s view was two years of confinement. The don’t-contradictRex law was passed with a small majority.
The effectiveness of this censorship legislation became apparent when there was a
complaint by some that the community should be working harder to return to civilization. Rex did
not like this idea one bit, so he proposed the “community-integrity law” that would make it illegal
to attempt to leave the island. Rex and other proponents of this legislation made eloquent public
speeches arguing that the law is in part for the protection of those individuals who would foolishly
risk their lives in attempts to leave the island. Such attempts, it was argued, would be dangerous
and likely to end in failure. It was maintained also that in such a small community every
individual was important for the survival of the community as a whole, so any individual who
risked her life in attempting escape put the community at risk. Finally, proponents argued that
their new life was much better than their former lives. A vote was taken and the communityintegrity law forbidding any emigration was passed by a majority of 151 to 149.
When they next had an opportunity to discuss political philosophy, Rex suggested that
Demos should be pleased: with the threat of violence gone, the democratic process had been
restored, that is, people could vote their conscience without having to worry about reprisals.
Demos conceded that the don’t-contradict-Rex law was passed in a manner consistent with the
democratic process, but argued the passing of the censorship law entailed the usurping of the
democratic process, just as surely as the Rex-is-right law usurped the democratic process. Demos
argued that this was obvious from the recent vote on the community-integrity law. The effect of
the threat of physical coercion with the Rex-is-right law was to ensure that people voted with Rex,
which was exactly the effect of the don’t-contradict-Rex law. After all, the point or effect of
allowing expression in support of Rex’s view, but none against, was to make sure that people
were more likely to vote with Rex. For example, it may not have occurred to many in the
community that unmanned rafts inscribed with pleas for help could be sent out with little or no
risk to the population, or that many of the community were so dissatisfied with their new lives that
the possibility of death was worth the risk. If they heard only the community-integrity view they
may never have learned of these arguments, and these arguments could have easily affected their
decision. This form of censorship provided preferential treatment for Rex’s view. This violated
the requirement of equality in the electoral process: legislation made Rex’s political voice pre-
6
eminent. By limiting expression in this way, what Rex achieved was the replacement of physical
coercion with mental coercion. As a result, the electoral process could not be considered free and
fair.
Unilateral and Multilateral Censorship
If sound, the previous argument shows that at least in some instances, censorship is
incompatible with the democratic commitment to free and fair elections. Can we generalize this
conclusion to all cases of censorship? I think not. Again a simple example can serve to illustrate
the point. Imagine a group of fifty philosophers and lawyers attending a conference on freedom of
expression decide to go out for dinner. Let us assume that it is unanimously agreed that these are
the only two options worth considering, Chinese or Mexican food, and that in order to expedite
matters—imagine the verbosity of a group of philosophers and lawyers—no one should make any
speeches or otherwise try to persuade the others. Without such a rule there is a significant concern
that the debate might go on well into the next day. If anyone speaks on the matter, it is decided
that they will not be allowed to go for dinner with the group, so a silent vote is to decide the issue.
Is this a democratic decision? To say that there must be free speech on the dinner issue in order to
make the vote democratic seems entirely implausible. Indeed, I do not see any non-questionbegging way to insist that such a vote is not democratic. It should be emphasized here that we are
asking whether the absence of censorship is necessary for a democratic vote, not whether it is
good. So, perhaps a better decision might be reached by allowing free discussion; however, our
question is not how to arrive at the best democratic decision, but whether free expression is
necessary for a democratic decision to be made. And unlike the don’t-contradict-Rex law, the
silence rule does not give preferential treatment to the preferences or point-of-view of some. So,
while free expression might well be a good accretion to the democratic decision process, it is not
necessary. If this is correct, then some forms of censorship are consistent with a commitment to
democracy.11
So we have two quite different examples: one where censorship usurps democratic
government, and one where censorship is consistent with democratic government. How do these
two cases differ? I suggest the difference is related to the distinction between unilateral and
11
As noted, Meiklejohn supra note 7, often argues that freedom of expression promotes good self-rule. Clearly, the
argument here is consistent with Meiklejohn’s position, for it might be said that certain forms of censorship are
logically compatible with democracy, but such forms of censorship do not make for a good democracy.
7
multilateral censorship. Unilateral censorship is where only one side of an issue is censored;
multilateral censorship is where all sides of an issue are censored.12 Thus, the don’t-contradictRex law is a form of unilateral censorship; whereas the conference delegates chose a multilateral
form of censorship. The position I am recommending is that unilateral censorship is inconsistent
with democracy.
To see this we can make a similar point that was raised in connection with the don’tcontradict-Rex law. Suppose instead of the multilateral censorship the group had instituted with
the silence rule, they had voted to allow only the pro-Mexican food lobby an opportunity to speak
before the vote. This would be unilateral censorship, and it seems to me, incompatible with the
claim that a democratic decision was reached. Imagine the pro-Mexican food contingent painting
mental images of the ambrosia served at the Mexican eatery, while denouncing the poor service
and the unsanitary conditions of the kitchen at the Chinese restaurant. (Also, they cannot resist
mentioning the rumour that an inordinate number of neighbours of the Chinese food eatery have
reported missing cats). With no chance to respond, it would hardly be surprising that a majority
might vote for the Mexican option. Even if the Chinese option had won out, it would not show
that the decision was reached in a democratic manner any more than if a majority of the castaways
had sacrificed their lives and voted against Rex when there was a death penalty for doing so. In
either case, what this would show is that sometimes it might be that those who hold the coercive
power in elections that are not free and fair may fail to achieve their goal.
While the censoring of positive views on Chinese food shares with the don’t-contradictRex law the feature of being a form of unilateral censorship, notice that with the law involving
Rex, the content to be censored was tied to Rex’s preference, whereas in the latter case the content
to be censored was defined in terms of a subject matter (namely, Chinese food). The don’tcontradict-Rex law may sin to a greater extent against a commitment to a democratic vote
precisely because all political speech is tied to an individual’s preferences in this way, but this
does not undermine the general point that unilateral censorship undermines the democratic
obligation to a free and fair vote by privileging some positions and excluding others from public
debate.
Synonyms, or at least closely allied notions for ‘unilateral’ censorship are “content censorship” or “viewpoint”
censorship. I have departed from these more common terms in order to make perspicuous the contrast I have in mind.
12
8
To underscore this point, let us think in more detail about the possible effects of unilateral
censorship on the outcome of the vote. Suppose that psychologists have developed a means to
scan a person’s brain and it was determined that prior to any discussion, the food vote would have
been 30 for Chinese and 20 for Mexican.13 However, the arguments by the Mexican food camp
were effective in swinging ten voters, meaning that the Chinese vote is reduced to 20 and the
Mexican food vote increased to 30. Allowing speeches in favour of the Chinese option is one way
to think about reintroducing equality in the decision making process, but again we are imaging
that this option is not allowed. So, how could we best address the issue of equality given that the
group is working under conditions of unilateral censorship? It seems the Chinese food contingent
would be in a good position to complain that their preferences were in effect tallied at a discount
rate compared with their opponents, for this was the effect of introducing unilateral censorship.
One way to attempt to reintroduce equality is to pro-rate each preference for Chinese food at
150%, so 20 voters @ 150% would equal 30 votes. The Mexican food vote could be reduced to
66.6%, so 30 @ 66.6% equals 20 votes. This way of pro-rating the votes would restore the
original numbers of the vote before unilateral censorship was invoked. The fact that we might
have to weigh some voters’ preferences more than others in order to reintroduce equality
underscores the fact that unilateral censorship preferentially treats the preferences of some voters
at the expense of others.
It may be demurred that in this case we know that unilateral censorship had an effect on
the vote. What if the speeches in favour of Mexican food had had no effect? At least in terms of
the outcome of the vote, it seems that the Chinese food lobby would have little reason to
complain. So, let us concede, at least for the sake of the argument, that unilateral censorship
might, in such cases, not usurp the democratic process.14 It hardly matters, since as a practical
matter we are almost never going to have knowledge about such counterfactuals, e.g., how voters
would have voted if unilateral censorship had not been in place. What this means is that even if
unilateral censorship does not affect the outcome of the vote, most likely we will not be in a
position to know this, so we will not know whether a vote was democratic or not. Furthermore,
13
We are assuming that this technology is much more reliable than the polling techniques we now have, which are
notoriously less than 100% effective in predicting election outcomes.
14
Even if censorship had no effect on the total number of votes cast in any election this is not necessarily the end of
the matter, e.g., there still might be a question of whether those censored can legitimately claim that they are not
being treated as political equals, see for example Thomas Christiano “Knowledge and Power in the Justification of
Democracy.” (2001) 79, 2 Australasian Journal of Philosophy 197 .
9
unilateral censorship could have a cumulative effect that would be even harder to track. Suppose
speeches in favour of Chinese food do not influence voters to change their vote this time. Perhaps
tomorrow’s vote on dinner might be affected by previous and ongoing campaigning by the
Chinese food lobby. Since democracies typically are ongoing concerns, those that find themselves
under conditions of unilateral censorship may worry about the cumulative effects of such
censorship. The fact that it would be impossible to calculate the effect that suppressing one point
of view will have on future decisions shows that this is not a workable means to reinstate equality.
To emphasise how unworkable it is, imagine unilateral censorship had been enforced at the
beginning of the 19th century on those advocating the view that women should be allowed to vote.
Suppose 10% of the (male) voters were of the opinion that women should be allowed the vote.
The authorities grant that suppression of the universal suffrage view will likely skew the vote so
they generously agree to count every pro-universal suffrage vote at 200%. (That is, every ballot in
favour of ending the exclusion of women from the political process would be counted as 2). At
least in the short-term, this probably would have been a generous amount to concede: opinion on
this issue changed very slowly. However, in the long-term this seems to underestimate the
influence of the power of ideas to change public opinion. True, it took more than a century in
many democracies to allow women suffrage, but I think it would have been to the long-term
disadvantage of the universal suffrage movement if they had traded the opportunity henceforth to
publicly argue for their position in exchange for counting votes in favour at 200%. In any event,
the point of thinking about this means of attempting to reinstate equality is to underscore how
unilateral censorship preferentially treats the political preferences and voices of some at the
expense of others. In other words, unilateral censorship introduces a significant risk that the votes
of some, in effect, count for more than one, and that the votes of others count for less than one.
Hate Speech Laws
I want to argue now that Canada’s hate-speech legislation, specifically 319(2) of the
criminal code, is a form of unilateral censorship. Section 319(2) states that
Every one who, by communicating statements, other than in private conversation,
wilfully promotes hatred against an identifiable group is guilty of (a) an indictable
10
offence and is liable to imprisonment for a term not exceeding two years; or (b) an
offence punishable on summary conviction.
Section 319(3) narrows the scope of the application of 319(2):
(3) No person shall be convicted of an offence under subsection (2) (a) if he
establishes that the statements communicated were true; (b) if, in good faith, he
expressed or attempted to establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion
of which was for the public benefit, and if on reasonable grounds he believed them
to be true; or (d) if, in good faith, he intended to point out, for the purpose of
removal, matters producing or tending to produce feelings of hatred toward an
identifiable group in Canada.
The legislation defines ‘identifiable group’ as any section of the public distinguished by colour,
race, religion or ethnic origin. In 2004 Bill C-250 amended the law to include ‘sexual orientation’.
It is generally agreed that this Canadian piece of legislation is directed towards curtailing the
expression of racists and other bigots. The incentive to employ such legislation is obvious: racists
and other bigots challenge central values of most contemporary democracies. For instance, the
judicial opinion in Keegstra is that hate speech challenges, “Canada’s commitment to the values
of equality and multiculturalism in ss.15 and 27 of the Charter.”15 Western democracies (at least
recently) by and large promote the idea that it is possible for people from a variety of religious,
ethnic and racial backgrounds to live together in peace and harmony. While this is often referred
to as the value of ‘multiculturalism’, we will refer to this as the value of ‘inclusivism’ for a couple
of reasons. First, there is no natural antonym for ‘multiculturalism’, whereas ‘exclusivism’ can be
taken as the antonym for ‘inclusivism’. Second, sometimes ‘multiculturalism’ is narrowly
understood in terms of a thesis about different cultures, and sometimes more broadly to include
both culture and race. Obviously these two notions are logically independent because people of
different races may share the same culture, and people of the same race may have different
15
R. v. Keegstra. [1990] 3 S.C.R. 697 [Keegstra].
11
cultures. (The Supreme Court judgment in Keegstra is best seen as using the broader
understanding, and so dovetails nicely with our understanding of inclusivism).
Racists who make noxious statements such as “my race is my nation and my nation is my
race” propose to exclude membership in a certain community based simply on race: they promote
the value of exclusion. To most of us, this strikes us as primeval thinking and a serious threat to
the value of inclusion. True, the value of inclusion cannot be said to be fully realized in Canadian
society, nevertheless considerable strides have been achieved in the last three centuries, e.g.,
Canada no longer permits slavery, there is no legislated exclusion of franchise based on race, and
in the last century women were finally allowed to vote. So it is with much horror that we hear that
racists want to “hang their enemies” where they may mean by their ‘enemies’ those who are not
of their race, and inclusivists of the same race who oppose their exclusivist (i.e., racist) doctrines.
There are two points worth making about this most distasteful speech. First, in broadest
terms, it has a political message. Theirs is a (repugnant) view about the good life: the good life
consists of living with people of the same race, and only of the same race. This view about the
good life has obvious political implications: the one race per nation stance is a view about how a
polity should be constituted. Thankfully, it is clearly not a political view most share, but it is a
political view. As much as we find racist speech offensive, it is difficult to see how it could be
maintained that all or even most racist speech is not politically relevant. As we have said, it offers
a view on how the polity should be constituted. Also, racists often have reasoned views. Let me
hasten to add that they are not what we would recognize as good reasons, but it would be a
mistake to think that we can dismiss exclusivists simply because they assault us with expression
that is simply emotive speech. Racists, for example, will sometimes support their view with an
appeal to the “naturalness” of races living in separate nations, or that this is part of God’s plan.16
On occasion, there is an appeal to justice: affirmative action may preferentially give jobs or some
other perks to persons based on race, but this is unjust according to racists. They argue that such
problems would never arise if a “one race per nation” policy were adopted. Sometimes the appeal
is to economic or political advantages: racists in America point to the success of nations like
319(2) allows hate speech where “if, in good faith, he expressed or attempted to establish by argument an opinion
on a religious subject”. Presumably this defence might be allowed. The obvious worry here is how the courts will
understand “in good faith”. Could racists propagate their message so long as their screed begins with: “I believe that
God wants us to…” followed by their racist message? The judicial decision in R. v. Andrews [1990] 3 S.C.R. 870
[Andrews] placed almost no weight on the religious arguments made by Andrews and his racist colleagues (see
below).
16
12
China, Japan or Northern European countries which they claim have more racial homogeneity
than Canada and the U.S.A and these can serve as economic models. Therefore, it is a mistake to
think that their speech is not political or that it is mere emotional vitriol. Nor is it plausible to
think that 319(2) is only used to prosecute those who spew merely emotional vitriol. For example,
the following is taken from the judicial decision in R. v. Andrews:
The ideology expressed by the material was summarized as follows by counsel for
the appellants:
... the material argues that God bestowed his greatest gifts only on the "White
people"; that if it were God's plan to create one "coffee-coloured race of `humanity'
it would have been created from Genesis"; and that therefore all those who urge a
homogeneous "race-mixed planet" are, in fact, working against God's will. In
forwarding the opinion that members of minority groups are responsible for
increases in the violent crime rate, it is said that violent crime is increasing almost
in proportion to the increase of minority immigrants coming into Canada. A high
proportion of violent crimes are committed by blacks. America is being "swamped
by coloureds who do not believe in democracy and harbour a hatred for white
people." The best way to end racial strife, an excerpt opines, is by a separation of
the races "through a repatriation of non-whites to their own lands where their own
race is the majority..."17
The Court18 did not challenge that this was a fair summary of the appellants’ views, nor that the
appellants offered reasons for their views. So, it is clear that the Court convicted in a case where
expression went beyond mere emotional vitriol. Again, I cannot stress enough that I am not saying
these are good reasons for believing their position—in my opinion they are not—but they do
appear to be reasons.19
17
Andrews, ibid.
The ‘Court’ of course refers to the Supreme Court of Canada.
19
While I cannot pursue this issue, it might be thought that while exclusivists offer us reasons for their views, they are
not “public reasons” in Rawls’ sense of the term (John Rawls, Political Liberalism, (New York: Columbia University
Press, 1996)), e.g., in the appeal to God’s racial designs. Depending on how we understand this doctrine, it may cast
its net so wide as to be unworkable (William Galston, “Diversity, Toleration, and Deliberative Democracy” in
Deliberative Politics, edited by Stephen Macedo (New York: Oxford University Press, 1999)), but even so, at least
18
13
It might be thought that to the extent that racist and other exclusivist speech has a political
message it might be protected under the exception 319c, which, again, reads: “(c) if the statements
were relevant to any subject of public interest, the discussion of which was for the public benefit,
and if on reasonable grounds he believed them to be true.” The courts have paid surprisingly little
attention to the political dimension of this speech. Again, the Court did not challenge the
appellants’ description of the racist materials just cited, and this material clearly has a political
message. The fact that there is a political message here cannot be disputed because the Court itself
acknowledged the connection between the censored expressions and the political activities of the
accused:
the appellants belonged to the Nationalist Party of Canada, a white nationalist political
organization. Mr. Andrews was the party leader and Mr. Smith its secretary. Both were
members of the party's central committee, the organization responsible for publishing and
distributing the bi-monthly Nationalist Reporter.20
So, by the Court’s own admission, 319(2) can be used to suppress the expression of political
material of a political organization and incarcerate political leaders. This seems especially
surprising given that the Court acknowledged the connection between political speech and the
value of freedom of expression.21
In the terms developed here, 319(2) is a piece of unilateral censorship because it does not
prohibit speaking against the position of exclusivists in the strongest terms or speaking in favour
of inclusivism in the strongest terms; but it does prohibit speaking in the strongest terms against
the inclusivist position and speaking for the exclusivist position in the strongest terms. If there is
any doubt that hate speech legislation privileges the inclusivism view—and I do not see how this
can be doubted22—consider the following example. A racist-terrorist has managed to plant a
nuclear bomb in a major urban centre and threatens to detonate the bomb unless a televised debate
some of the exclusivists’ reasons seem to make the “public reasons” standard, e.g., the putative correlation between
race and crime, or the argument that racial homogeneity promotes economic success, seem to pass even a very narrow
understanding of ‘public reasons’.
20
Andrews, supra note 16.
21
The Court acknowledges the importance of protecting political speech as a reason for the 2b Charter Right:
Keegstra, supra note 15 at 49.
22
Whether it should privilege inclusivism is obviously a different question from whether it does privilege inclusivism.
I am suggesting here that there is little reason to doubt that it does privilege inclusivism.
14
is held on the inclusivism/exclusivism issue. The debate question is this: “Should Canada become
a racially homogenous white nation?” You are a well-known debater and strong proponent of
inclusivism. The terrorist has chosen you to debate the exclusivist side for him. In itself this is not
an impossible task: many good debaters can argue both sides of an issue. A well-known racist has
what we would see as the more enviable task of debating the inclusivist’s side. Unbeknownst to
your debating partner, the terrorist has arranged that an opinion poll will be taken before and after
the televised debate. If you fail to bring more people around to the exclusivist side then the
terrorist will detonate the bomb—a very strong incentive to debate forcefully. But not, it seems,
an impossible task either. For you are not required to bring a majority opinion to the racist side,
you only need to increase the number of persons who are persuaded, e.g., if 10% of the population
have racist sentiments before the debate you need only raise this to 10.1%, conversely, you cannot
lose even .1% in the debate or the terrorist will detonate the bomb. The terrorist says that he will
ensure unequivocally that it is a fair debate: each side will get equal time and the laws of the land
must be obeyed, e.g., you cannot assault your debating partner and hope to win by hurting her or
drowning her out. Naturally you should enquire about 319(2). Does it apply in this case? The
terrorist answers yes, after all, it is a law of the land. Surely you might wonder whether the
terrorist is correct in saying that this is a fair debate. You will be prevented from speaking in the
strongest terms in favour of the exclusivist’s viewpoint, but your debating partner will not face
any similar restrictions. For example, she may invoke the idea that we have a duty to love and
respect people of all races and ethnicities whereas you will be prevented from arguing the
converse. You will be prevented from using a typical racist ploy of invoking racial stereotypes in
order to denigrate. Suppose you suggest to the terrorist that this is unfair and that you are more
than willing to suffer the consequences if you violate 319(2). The terrorist replies that it is very
noble of you to be willing to go to jail for up to 2 years in order to strengthen your side of the
debate, but if you violate 319(2) the terrorist will instantly detonate the bomb.
It seems in order to make this debate fair, 319(2) would have to be suspended precisely
because it enforces upon you unilateral censorship: you are forbidden to speak in the strongest
terms for your position. In other words, there seems to be a contradiction in the terrorists’ claim
that this will be a fair debate, if 319(2) is in effect. You are forbidden to say that races are
essentially different and unequal and we should exile or kill those races and ethnic groups that
15
will not leave. Your opponent is allowed to say that races are not different or unequal and that it is
morally abhorrent to think of exiling or killing different races. If we accept the point that the
terrorist has arranged an unfair debate, then a similar point applies to the question of whether
319(2) usurps the democratic process: 319(2) makes it much easier to speak in favour of
inclusivism and much harder to speak in favour of exclusivism. In short, 319(2) rigs the political
debate, and if you have rigged the political debate then you have rigged the election.
It is worth reminding ourselves that Canadian and American legislation differ significantly
on what might be said in favour of inclusion and exclusion. Unlike Canada, the United States of
America does not have content restrictions. If one were forced by a terrorist to debate as described
above, one might argue that the debate should be moved to the U.S., for there the laws of the land
do not restrict your side of the issue, that is, it seems undeniable that it is much easier to argue
exclusivism when one does not have to contend with a law like 319(2). In the U.S. the political
debate (at least on this issue) is not rigged against the exclusivist.
Now it may be thought that the censorship of the political views of exclusivists can be
justified in terms of the fact that their view of the good life and the good polity goes against the
views of the vast majority of Canadians. There is some indication that this is the Court’s opinion:
Indeed, one may quite plausibly contend that it is through rejecting hate propaganda that
the state can best encourage the protection of values central to freedom of expression,
while simultaneously demonstrating dislike for the vision forwarded by hate-mongers. In
this regard, the reaction to various types of expression by a democratic government may
be perceived as meaningful expression on behalf of the vast majority of citizens.23
As I have argued, the position of hate-mongers amounts to a (distasteful) political viewpoint, so
when the court says in legislating against hate propaganda the state is registering its disapproval
of the viewpoint of hate-mongers, it is also expressing its disapproval of the political viewpoint of
hate-mongers. The fact that this happens to be the vast majority does not affect the underlying
logic that this is a form of unilateral censorship, and so undermines the possibility of free and fair
elections. An election is not free and fair if a single person is silenced on matters of governance
23
Keegstra supra note 15.
16
by the others than if this same person had it in her power to silence the rest. In either case the
complaint is the same: unilateral censorship rigs the debate; and, if the debate is rigged then the
election is rigged.
What of the objection that what exclusivists are agitating for is a non-democratic form of
government, whereas the inclusivist’s position is consistent with democracy? Does this give us
reason to think that it is permissible to censor the speech of exclusivists? For a start, one might
challenge whether the exclusivists’ position is undemocratic. After all, it seems to be within the
purview of political debate to consider whom we should exile. As the summary from the
Andrews’ case indicates, racists have a (detestable) view about who should be expatriated. But
even assuming that exclusivists are advocating a non-democratic government, consider that we
allow political debate on the possibility of transforming to non-democratic forms of government:
we allow monarchists and those that advocate the dictatorship of the proletariat to have their say.
So, even if it can be shown that what exclusivists recommend is undemocratic, unilateral
censorship of exclusivists’ speech cannot be justified simply on the basis of its recommendation
for non-democratic reforms.
Multilateral Censorship: Hate and Love Laws
No modern democratic country, to the best of my knowledge, has adopted the legislative
possibility of multilateral censorship; however, if the previous argument is correct then we must
concede that this possibility is consistent with democracy.24 So, in this section I want to explore
what this option might look like with respect to the issue of hate-speech. To institute multilateral
censorship, legislation would have to be carefully crafted to equally curtail expression in favour of
both inclusivism and exclusivism. So, persons who promote (in the strongest terms) exclusivism
would be charged as before, but now persons would be charged for advocating (in the strongest
terms) inclusivism. So where we have hate laws we could also institute “love laws” that prohibit
expressions of inclusion. Such a “love law” could use the same wording as 319(2) only it would
add the view that is diametrically opposed to hating. Thus: Section 319(2) might be rewritten as,
“Every one who, by communicating statements, other than in private conversation, wilfully
promotes hatred against or love for an identifiable group is guilty of (a) an indictable offence and
24
It has been suggested that Rousseau believes that elections should take place in silence (Nadia Urbinati,
“Representation As Advocacy: A Study of Democratic Deliberation” (2000) 28, 6 Political Theory 758). It would be
wrong to think, however, that Rousseau believed that citizens should never discuss political issues. Rousseau’s
insistence of multilateral censorship is merely at the time of voting.
17
is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on
summary conviction.” Of course I don’t take this as a serious proposal about what we are likely to
do, but it is worth, I think, exploring its shortcomings.25
The only positive argument in favour of multilateral censorship seems to be that it would
allow us to consistently uphold our commitment to hate speech laws and democratic elections. On
the other hand, I think it can be shown that it offers little to proponents of free expression and
those that favour the unilateral censorship of 319(2).
Obviously, friends of freedom of expression are hardly going to be enamoured with
multilateral censorship. If we accept Meiklejohn’s argument that freedom of expression
contributes to good and wise governmental decisions then multilateral censorship will also seem a
giant step backwards. For it is tantamount to addressing a perceived problem of censorship by
instituting further censorship. Similar remarks apply to a rights-based defence of freedom of
expression: if multilateral censorship were introduced it would clearly further infringe on
individual rights. Those who advocate freedom of expression based on such considerations are
hardly going to be consoled to hear that the problems of censorship laws like 319(2) are going to
be addressed by instituting more encompassing censorship laws.
It seems quite likely too that friends of existing censorship laws would find discomforting
the idea that inclusivist speech (expressed in the strongest terms) will now be made illegal.
Politicians, community leaders and educators have often used the public forum to combat
exclusivism. The instituting of “love laws” would mean curtailing the promotion of inclusivism.
Thus, one would have to be very careful of how one promoted inclusivism for fear that it might
infringe upon the love laws, for multilateral censorship would rob us of the possibility of speaking
in favour of inclusivism in the strongest terms. This “chilling effect” seems a very undesirable
effect for inclusivism, for an integral part of the hope for the triumph of inclusivism in our society
seems to involve continually advocating and making manifest in public forums the reasons for
inclusivism. It is true that lifting unilateral censorship on hate speech would permit a public forum
for exclusivists, and so this might be seen as a less desirable result than having unilateral
An obvious practical difficulty here is how to understand what is meant by ‘love’ in this connection. The term is
potentially quite vague, but so too is the word ‘hatred’ in the original 319(2) legislation. Judicial opinion in Keegstra
supra note 15 was divided on the question of how problematic the vagueness associated with ‘hatred’ is, but the
majority decision said that the vagueness was not so problematic to warrant striking down this legislation.
Presumably any vagueness associated with ‘love’ would merit similar exculpation.
25
18
censorship. But the choice we are considering is between using the law to curb both inclusivism
and exclusivism speech, or permitting freedom of expression on the inclusivism/exclusivism
issue. So the question resolves to whether prohibiting both inclusivist and exclusivist speech is
more damaging to the cause of inclusivism than allowing both types of speech. Although it is
broadly an empirical issue, it seems likely that the free expression route is more beneficial to the
cause of inclusivism. The basic reason for this is that it seems that speaking out in favour of
inclusivism has done more for the inclusivist’s cause than prohibiting exclusivist’s speech has
contributed to this same end. Specifically, public education programs and the impassioned speech
of community leaders and celebrities have probably done much more for the cause of inclusivism
than silencing the public voices of exclusivists. Indeed, as Wayne Sumner has recently argued,
there is little reason to suppose that 319(2) has done much to promote the cause of inclusivism,
and perhaps on occasion may actually hinder it.26
It is perhaps worth noting here that if it can be shown that free and fair votes must be
informed then the possibility exists that there are good theoretical reasons, in addition to the more
practical reasons noted here, for rejecting the idea of multilateral censorship. In terms of
argumentative burden, however, it looks like merely assuming that the voting public must be
informed comes close to begging the question against those in favour of censorship legislation. By
not making this assumption we have had to face the possibility of multilateral censorship, but the
argumentative benefit is that there is less risk of begging the question. In other words, I take it that
the assumption that elections must be free and fair is more likely to be granted by many who
advocate censorship laws.
To summarize, the rationale for multilateral censorship is simply that, given the
assumption that elections must be free and fair but not necessarily informed, it is a possible means
to consistently combine censorship with a commitment to democracy. However, as a practical
proposal about how we might do things differently, it seems to have little merit.
Unilateral Censorship and a Section 3 Charter Challenge
The argument here raises the possibility of a different constitutional challenge to 319(2)
and other unilateral censorship laws. Rather than challenging laws such as 319(2) under section 2
26
Sumner, Hateful supra note 6.
19
of the Charter which guarantees freedom of expression, it may be possible to challenge them
under section 3 of the Charter of Rights and Freedoms, which reads: “Every citizen of Canada has
the right to vote in an election of members of the House of Commons or of a legislative assembly
and to be qualified for membership therein.” The argument could be directed to both clauses in
section 3, that is, to the right to vote, which I will refer to as our ‘3a right’; and to qualification for
membership in legislative bodies, which I will refer to as our ‘3b right’.
Let us think about the 3b right first. Our previous discussion might not seem relevant,
since it was largely framed in terms of voting on issues rather than voting for legislative
representatives. However, the argument can easily be changed to accommodate this. Consider the
case again of voting for either Mexican or Chinese for dinner. We can straightforwardly imagine
this to be a vote for a “dinner representative”, the person who will lead the group to dinner. The
candidate running on the Mexican dinner platform will have no reason for complaint against the
unilateral censorship against pro-Chinese food speech, for this restriction will not hamper her
campaign. A prospective representative running on a pro-Chinese food platform is going to have a
much more difficult time. First, there is the problem of whether the bare announcing of a proChinese food campaign will mean that one will run afoul of the unilateral censorship law.
Supposing that it is permissible to run on a pro-Chinese food ticket, unilateral censorship will
discriminate against this candidate. Imagine prior to the vote for the “dinner representative” the
Mexican food candidate provides an impassioned speech for Mexican food, and a number of her
supporters chime in with additional points. The pro-Chinese food candidate will be prohibited
from mounting a similar campaign, and so too will her supporters be prohibited from any
significant advocacy. So, such unilateral censorship is going to make it virtually impossible to be
a pro-Chinese food representative. Similarly, unilateral censorship laws make it virtually
impossible to be a representative for the political view that Canada should be a racially
homogenous society, etc. So, assuming that even the bare announcing of one’s platform does not
run afoul of 319(2), still 319(2), for all practical purposes, effectively disqualifies those with such
(reprehensible) views from membership in the House of Commons and other legislative bodies,
e.g., 319(2) would effectively make it impossible for racists like Andrews to run for parliament.
As soon as they opened their mouths on the campaign trail to give an impassioned speech for their
political views, they would face criminal charges. This point applies not only to racists but to
20
homophobes as well, for as noted, the scope of 319(2) has been expanded to include sexual
orientation. This emendation does not affect prospective parliament members running a campaign
that recommends that we love and embrace those of same-sex orientation, but it will make it
virtually impossible for any prospective member who campaigns on the platform that
homosexuals should be hated for being “vile”, “unnatural”, “abominations” and so on. Unilateral
censorship impugns the 3b rights of some.
Notice here that the complaint is not that there must be a candidate on a ballot that
represents one’s views. Such a complaint would be met with the response that 3b does not
guarantee this: there is nothing in the Charter that mandates that there must be a spectrum of
candidates such that everyone has an opportunity to vote for somebody else who will represent
one’s political view. However, the Charter does imply that there should be the opportunity to have
one’s views represented, because the Charter guarantees that everyone is to be qualified to be a
member of the House of Commons. So, it guarantees that there is at least one opportunity for
having one’s voice heard in Ottawa: where one runs for the House of Commons. That is, the
Charter guarantees the right to have one’s view eligible for the House of Commons because it
guarantees that each person is eligible to be a Member of Parliament. It is nonsense to say that
everyone is eligible to be a Member of Parliament, but not everyone has the right to speak in the
strongest terms for his or her position. So, for all practical purposes, restricting what certain
candidates might say is tantamount to denying their 3b rights.
Nor should the challenge be understood as suggesting that the Charter requires that
candidates have an equal chance of winning a seat. Again, it would be unreasonable to interpret
the Charter in this manner; after all, it would seem to open up a potential complaint from every
loser in an election. Rather, a more reasonable interpretation is that, at minimum, there should be
no legislative barriers to being eligible to run for the House of Commons. For example, legislation
that prohibited qualification in terms of gender, race, or property are perhaps examples of
previous legislation that would be incompatible with this Charter right. So, at minimum the
Charter guarantee should be understood that there is no legislative barrier to a poor racial minority
woman being qualified to sit in the House of Commons. A familiar historical example is the fact
legislation in Canada at one time made it illegal for women to be members of Parliament; this
legislation appears to be in direct conflict with 3b. Likewise, if legislation were passed that made
21
it legal for women to run for political office, but made it illegal for them to express their views,
this too would seem to infringe on the 3b right to be qualified to be a member of the House of
Commons; for in this hypothetical scenario we are imaging a legislative impediment to women
being qualified to sit in the House of Commons. If we accept this then it seems that we must
accept that unilateral censorship that silences homophobes and other bigots has the effect of
disqualifying, for all practical purposes, membership in the House of Commons.
In terms of the 3a right to vote, if the preceding argument is sound, then the right to vote
has been infringed to an even greater extent than our earlier argument indicates. Recall that we
originally imagined that there would be an opportunity to vote for both Mexican and Chinese
food, but only the Mexican lobby could speak. This we said had the effect of pro-rating the votes
of the Chinese food lobby. But if what we said about 319(2) means disqualification for
representation in the House of Commons then we must suppose that the situation is even worse
for the Chinese food lobby. We must suppose that they do not even get a chance to vote Chinese
food. So, their vote is not like we imagined, namely: it counts, but not for as much as the opposing
side. Since a vote for Chinese cannot be expressed, the Chinese lobby has no opportunity to vote.
In other words, originally we were imagining the votes for Mexican as counting as 1.0 and
Chinese as counting for some fraction (.66 was our example), but now it seems we must imagine
their vote as counting as 0.0, for the Chinese lobby would not even have an opportunity to express
their views because of a lack of a representative to vote for. Here the choice is between voting for
Mexican and not voting at all. 27 But this seems a clear violation of the idea that everyone in the
conference was going to be afforded the opportunity to vote his or her dinner choice.
It may be objected that this example trades on the artificiality of there being only two
options. Suppose there is an Indian restaurant in town, and so there is a third possibility for dinner.
Even if the Chinese food option cannot be voted on, still all the conference delegates can vote
their preference on these choices and so nobody’s vote is being discounted. Each person’s vote for
one of the two choices, Mexican or Indian, counts for one. Similarly, if racists cannot vote for
racist candidates, still their vote for non-racist candidates counts just as much as anyone else’s
vote. So, in this case there is no inequality of voting power.
27
They might spoil their ballot, but this is presumably small consolation.
22
However, when we think through the consequences of this line of objection, it appears to
be patently absurd. To see this, imagine rather than unilateral censorship somehow the rule
becomes instituted from previous conferences that a vote for Chinese food counts for only .66 of
that of any other choice. Those attending the conference for the first time complain that this is to
treat their vote for Chinese as of less value than that of the other delegates. To remedy this, it is
proposed that no votes for Chinese will be allowed, as a means to restore equality. Of course this
is absurd. If the complaint is that the vote for Chinese is treated as less valuable than that of other
choices, it does not rectify the situation to prohibit any vote for Chinese dinner. Similarly, it does
not rectify the complaint by homophobic individuals who assert that their homophobic vote is
treated at a discount rate by unilateral legislation to offer them the remedial action of not even
allowing their candidate to run.
This is related to the confusion that thinking that the number of choices on a ballot
guarantees that any of them offer what individual voters will see as a significant choice. This can
be illustrated by a slight twist on our previous example. Suppose you are a vegetarian and the
Chinese restaurant is the only one in town with a vegetarian option. If you are forbidden to vote
for this option it does not make a big difference if you can chose between 2 or 10 different nonvegetarian options. In fact, from your point of view the choice would be more significant if there
were only two options: Chinese and any one of the 10 non-vegetarian restaurants. The seeming
contradiction that you would have more choice with only two options as opposed to 10 options is
dispelled when we note that the differences in the non-vegetarian options are not significant for
you. Here is a slightly different example that illustrates the same point. Elections in communist
countries were often derided because they were simply one party elections. Suppose in response a
communist country allowed a greater number of choices. Here the ballot offers 15 different parties
to vote for, including: “The Paris Manuscripts of 1844 Marxian Party”, “The Paris Manuscripts of
1844 with a bit of the German Ideology thrown in for good measure Marxian Party”, “The
Progressive Das Capital Marxian Party”, “The Orthodox Das Capital Marxian Party”, “The
Revisionary Pre-1922 Trotsky Party”, “The Trotsky in Mexico until that terrible thing with an iceaxe (not an ice-pick!) Party”, etc. Here the country escapes the one-party criticism because there
are 15 parties to choose from on the ballot. In fact, this is much more choice than is offered on a
typical Canadian or American ballot. The obvious criticism here is that this is a multi-party
23
election in name only, because all 15 parties are variants of communism. For some, the choice
would be more significant if there were only two parties: any one of the 15 communist parties and
some free market alternative. For those who believe that some version of the free market is
essential for the good life, none of the 15 communist choices offered aligns with their values. The
same point applies to the views of some racists, homophobes and other bigots: our electoral
choices are multi-party in name only. A very central value that they believe is important for the
realization of the good life, exclusivism, is not present in any of the choices that are offered, nor
can they organize to present this as an option to the Canadian electorate.
It is worth noticing here a distinction between legislation that requires political inequality
and legislation that permits political inequality. A previous example, the fact that Canadian
legislation previously forbade women the vote, may serve here again: this legislation legally
required that women not be treated as political equals. Some argue women do not have political
equality with men today; for example, women are under-represented in terms of members of
parliament. Although women make up approximately half the adult population, women have
tended to comprise a dismal proportion of the House of Commons, presently, only slightly more
than 20%.28 There may well be social and institutional impediments to women being better
represented, but there is no legal impediment, e.g., it would not violate any law if (as unlikely as
this seems) women in the next election won 80% of the seats in the parliament. If we accept this
inequality as something to be remedied, it must be a criticism that the law permits political
inequality, not that the law requires the political inequality of women (as it once did). Whether
Canada should permit this much disparity in gender representation in Parliament is a contested
issue, for example, Canada could introduce legislation (as have other nations) that would require a
certain percentage of seats in parliament be held by women. However, there is almost universal
consensus that there should not be legislative barriers to equal political influence, e.g., a law that
mandated women should hold no more than 30% of the seats in parliament would be nearly
universally denounced. The complaint against unilateral censorship laws is of the less
controversial sort, that is, the complaint is that such laws require political inequality, not that they
permit political inequality.
Élaine Hémond. É. 2005. Women’s Political Equality”, The Groupe Femmes, Politique et Démocratie Papers –
Vol. 7, No. 2. www.femmes-politique-et-democratie.com/pdf/TJ_vol7_no2_en.pdf.
28
24
So if this argument is successful, then we have established at least a prima facie case that
319(2) infringes on the 3a right of exclusivists to vote in elections; and to the extent that 319(2)
makes it difficult if not impossible for prospective exclusivist candidates to run in an election, this
violates the 3b right.
Unilateral Censorship and Section 1
Even supposing that it can be shown that 319(2) impugns our 3a and 3b rights, this in itself
is not sufficient to show that 319(2) is unconstitutional because the question must be raised
whether unilateral censorship can be “saved” under section 1. This familiar point about the
Charter is well illustrated by previous challenges to censorship laws that focused on section 2b,
that is, the right to freedom of expression. The major court challenges to 2b have granted that the
censorship laws do infringe upon 2b rights.29 However, the judicial opinion has been that,
although laws such as 319(2) infringe on the Charter guarantee for free expression the laws in
question can be “saved” under section 1: “The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.” As Sumner explains,
section 1 in essence asks the Court to do a consequentialist analysis of the relative harms caused
by censoring as compared with not censoring.30 Judicial opinion has been that the infringement of
the Charter guarantee of freedom of expression can be “demonstrably justified in a free and
democratic society”. In other words, to show a law is unconstitutional under 2b requires a twostep analysis. First, one asks whether a particular law conflicts with the Charter guarantee of
freedom of expression. If the answer is no, then the law is not found to be unconstitutional. If a
law does infringe upon the guarantee of the 2b right, it does not follow that the law must be struck
down because a second step requires asking whether this infringement can be justified in the
terms set out under section 1 of the Charter. Only if the answer is negative in both instances will
the law be shown to be unconstitutional. In general, the Court has ruled that censorship laws do
A helpful review of many of these cases can be found in Richard Moon’s “Justified Limits on Free Expression: The
Collapse of the General Approach to the Limits on Charter Rights” (2002) 40, 4 Osgoode Hall Law Journal 338
[Moon].
30
Sumner, “Hate” supra note 1, and Sumner, Hateful supra note 6.
29
25
infringe upon the 2b right, but this infringement can be justified by the terms set out in section 1
of the Charter.
The situation may be different with the present suggested constitutional challenge. As a
first approximation, the point may be put this way: if we take the exercise of the democratic rights
in section 3 to be a necessary condition for democracy, and we accept the argument that unilateral
censorship infringes on our democratic rights, then the Court will have its answer: they will have
to strike down the legislation. The reason is that section 1, it will be recalled, says that the
limitations to rights must be “demonstrably justified in a free and democratic society”, but we are
supposing that such legislation has shown to be non-democratic, hence, it cannot be justified in a
democratic society. The thought then is that there may be a difference in kind between an
infringement of a section 2 and a section 3 right. Thus, suppose (as is often claimed) that the value
of inclusivism is said to be protected or promoted by unilateral censorship, and it is determined
that this law infringes upon both section 2b and section 3. The present argument does not
challenge or question previous judicial decisions that suggest that protecting or promoting
inclusivism is more important than the infringement upon the 2b right. However, given that our
section 3 rights are necessary for a commitment to democracy, the same logic would not hold in a
section 3 challenge, for this would be to assume both rejection and acceptance of a commitment to
democracy. Spelling out this argument, particularly how we should understand ‘democracy’, will
occupy us for most of the remainder.
The Flexible View of Democracy
The position advanced by the proposed Charter challenge, then, may be termed the
‘constitutive view’ because it says that unilateral censorship infringes upon both our commitment
to the section 3 democratic right, and to our section 1 commitment to democracy, since
democratic rights are constitutive of democracy. The opposing view, which I shall call the
‘flexible view’, says that our understanding of the Charter commitment to various values
(including the value of democracy) must be “flexible” enough to allow some balancing of
competing interests or rights, and that once we see this, unilateral censorship does not undermine
our commitment to democracy. In this section I want to briefly review the case for the flexible
view.
26
Part of the support for the flexible view comes from the fact that the Court has already
determined that we should understand the concepts and values enshrined in the Charter in a
flexible31 manner. For instance, consider the view that any restriction on free expression is a
violation of the Charter right to free expression and incompatible with our Charter commitments.
The Court has previously ruled that this view is untenable. For example, in Irwin Toy Ltd. v.
Quebec (Attorney General) the courts established that violent forms of expression are not
protected under the Charter right.32 In R. v. Keegstra and other cases the courts have determined
that 319(2) and other censorship laws that violate our 2b rights are constitutionally valid.33 The
basic line of reasoning here in both cases is the same: although free expression has a prima facie
claim under the Charter, democracies involve more than a commitment to free expression, since
other values and interests must be taken into account. All citizens have an interest, for example, in
not being hurt by violent expression, that is, in the security of their person, and democratic
governance requires that we uphold this value. The Court has determined that this value, freedom
from violent attack, must take precedence over the value of unlimited freedom of expression.
Similarly, as we have noted, even where it is found that a law infringes on our 2b right, the courts
have determined in many cases that such infringements can be “saved” under section 1 because
censorship has been seen as an effective means to promote other democratic values, in particular,
the value of inclusivism. That is, the Court has determined that in certain instances, the value of
inclusivism must take precedence over the value of free expression. The point here is not that we
must necessarily agree with the Court’s decisions, but merely to point out that striking an
appropriate balance of different democratic values is often part of the judicial process in a Charter
challenge. On the flexible view, there is no particular reason to think that section 3 should be
immune to this sort of balancing.34
There is much to this line of reasoning. Certainly many previous Charter challenges seem
to support this view; the Court has understood that guaranteed rights may be impugned when
there is a perceived social need. However, if we accept the flexible understanding then the
question becomes, “How far can we move away from the ideal of everyone having an opportunity
The Court often uses the word ‘contextual’ in a way that overlaps with this usage. For the Court’s understanding of
‘contextual’ see Moon supra note 29.
32
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
33
Keegstra supra note 15.
34
I would like to acknowledge very helpful feedback from an anonymous referee who showed me that the flexible
view is much more plausible than I originally imagined.
31
27
to run for Parliament, and no one being prohibited by law from equality in the electoral process?”
Suppose, for example, it could somehow be determined that a single ruler would be better at
realizing the non-electoral rights (that is, rights other than the right to vote and run for
government) of the Charter. I take it that even if we concede that this could lead to better
outcomes in terms of honouring the non-electoral rights, still this would not count as a democracy.
The point here is simply that there must be some limit to the flexibility of the flexible view: living
under a hereditary monarchy where no elections take place cannot count as a ‘democracy’, even if
it is a case of excellent governance in terms of honouring non-electoral rights. So, the flexible
view must provide some account of how far competing values can permit us to legislate against
equality in the electoral process before we violate a commitment to democracy. For example,
imagine in instituting the don’t-contradict-Rex law the castaways enjoyed more security,
inclusivism, material equality, and so on. Would we then, contrary to what we said earlier, be
inclined to say that the islanders enjoyed democratic government? The flexible view needs to
answer questions of this nature. By hypothesis, whatever answer is forthcoming will not be in
terms of violation of some essential condition, since ‘democracy’ is to be understood flexibly. But
if the flexible view is to be plausible it will have to make intelligible the limits of the concept of
democracy in some fashion. Until we have a developed version of the flexible view, it is hard to
know how plausible the flexible view is on this point.35
For the Constitutive view
I want to turn now to two lines of evidence which might be used in support of the
constitutive view: the meaning of ‘democracy’ as described by political theorists, and what I shall
call the ‘one type of citizen’ view. With respect to the former, consider first an entry on
democracy by Christiano in the Stanford Encyclopaedia of Philosophy. The entry is significant
because Christiano reviews many recent contributions to democratic theorizing. 36 He suggests
The best defence I know of the flexible view can be found in Ronald Dworkin’s, “What is Equality? Part 4:
Political Equality” in Philosophy and Democracy, edited by T. Christiano, (New York: Oxford University Press,
2003), 116, [Dworkin, Equality]. Unfortunately, Dworkin does not discuss the specific type of electoral inequality
associated with unilateral censorship; rather, his primary example is disparity in voter numbers in electoral districts. I
discuss Dworkin and the general debate between the flexible and constitutive conception of democracy in more detail
in my paper, “Legislated Electoral Inequality: the flexible versus the constitutive conception of democracy”,
(unpublished) [Walker].
36
It is worth noting that the idea that democracy requires equality of voting power is hardly a modern innovation but
can be traced back to Euripides’ Suppliants (K. Raaflaub, “Democracy, Oligarchy and the Concept of the “Free
35
28
that ‘democracy’ refers “very generally to a method of group decision making characterized by a
kind of equality among the participants at an essential stage of the collective decision making”. 37
As Christiano notes,
the equality required by the definition of democracy may be more or less deep. It may be
the mere formal equality of one-person one-vote in an election for representatives to an
assembly where there is competition among candidates for the position. Or it may be more
robust, including equality in the processes of deliberation and coalition building.38
Important for our purposes is the fact that the constitutive view need only insist on the “less deep”
understanding of equality in the political process, for the argument here is directed towards the
notions of “one-person one-vote” and “competition for representatives”. That is, it was argued
that unilateral censorship in effect pro-rates the votes of the censored, and disallows a significant
competition among candidates for those whose views are censored. Constitutivists need not agree
that equality must be deeper than this. For example, some constitutivists may think that the power
of money undermines equality in the deliberative process, while others may deny that the
influence of money undermines a commitment to democracy.39 The disagreement here is whether
this “less deep equality”—one that discounts possible effects of wealth on the political process—
is sufficient for democracy. What is agreed upon is that the one-person one-vote, and competition
among candidates is necessary. Interestingly, even Dworkin, who we noted has the most
sustained defence of the flexible view, concedes that this minimal equality is part of our
understanding of ‘democracy’.40
The second point is the relation between democracy and the ‘one type of citizen view’.
This is the familiar point that ultimate political power lies with “the people”; thus it is said that
Citizen in Late Fifth-Century Athens” (1983) 11 Political Theory at 520). This conception of democracy (but not
democracy itself) by a number of giants in the history of political philosophy, e.g., Plato (The Republic translated by
F. M. Cornford in The Complete Works of Plato edited by Edith Hamilton and Huntington Cairns (Princeton:
Princeton University Press, 1961) at 557a-b); Aristotle (Politics, translated by B. Jowett in Great Books of the
Western World, Aristotle II, (Toronto: William Benton 1952) at 1317a-1317b13); and Hobbes (Thomas Hobbes,
Leviathan, ed. C. B. MacPherson (New York: Viking Press, Penguin Classics 1982) at Chapter 19)
37
Thomas Christiano, “Democracy,” The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.),
http://plato.stanford.edu/entries/democracy / (2006).
38
Ibid.
39
For the view that it does, see Philip Green, P. and Drucilla Cornell, “Rethinking Democratic Theory: The American
Case”, (2005) 36, 4 Journal of Social Philosophy 517.
40
Dworkin, Equality supra note 35 at 120
29
legislative representatives in the House of Commons serve ultimately only at the discretion of the
people. The French monarch Louis XIV is alleged (probably falsely) to have said “L’’État, c’est
moi”. The traditional understanding of democracy would reply: “L’État, c’est nous”. By ‘us’ we
mean the adult citizens of our democracies. The constitutive view is consistent with the traditional
understanding of democracy that all citizens are both rulers and ruled, sovereign and subject. The
flexible view must reject this understanding, for legislating against political equality has the effect
of excluding some citizens from much in the way of meaningful participation in the ruling
function. So, the flexible view is committed to some version of the ‘two types of citizen view’. On
the flexible account, inclusivists are one type of citizen, citizens who are both rulers and the ruled;
while exclusivists are another type of citizen, citizens who are merely ruled. So, only the
constitutive view is consistent with the one type of citizen view. Now it may be objected that the
one type of citizen view overstates the case because everyone agrees that very young children
should not be given the vote or have the opportunity to run for office. Similarly, in some
democratic nations, prisoners are denied the vote and the opportunity to run for office. Certainly
this must be admitted: the one type of citizen view should be properly applied in the first instance
only to non-incarcerated adult citizens. However, the fact that there are these other types of
citizens, children and prisoners, is not particularly helpful for the flexible view unless it proposes
that exclusivists should be assimilated to one or another of these categories, that is, to say
exclusivists are like children or prisoners.41 This is not to say that the two types of citizens view is
wrong, after all, in non-democratic theorizing such a distinction is often thought to be just and
wise (e.g., the two types of citizen view is prominent in Plato’s view in the Republic).42 Rather,
here we are simply noting the consequence that the constitutive view is consistent with the one
type of citizen view, whereas the flexible view is not.43
41
Indeed, the later option is no longer entirely possible in Canada because the Court in Sauvé v. Canada (Chief
Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 struck down a law that took away the 3A right of some
prisoners. The Court did not consider the 3b right in this judgment. What this means is that (for example) serial killers
may have a greater share of political decision-making than we give to exclusivists. There is of course a long tradition
of suggesting that certain persons should be excluded from the ruling function because their cognitive or moral
faculties are childlike, e.g., this is the sort of justification that was often used to exclude women and racial minorites
from political participation. For instance, Rousseau and others thought that only men were capable of participating in
political life: women lacked sufficient wisdom and the “manly virtues” (Jean Jacques Rousseau, Emile, or On
Education, trans. with an introd. by A. Bloom, (New York: Basic Books, 1979).
42
While Plato postulates three classes of citizens, two of them, the workers and the guardians, both do not participate
in political decision-making, a function reserved for the philosopher-kings.
43
I explore a third line of evidence in Walker supra note 35 that stems from some well-known justifications for
democratic governance, and for a justification for an obligation to obey democratic laws. The idea is to see what
30
Conclusion: Logocracy versus Democracy?
At minimum the argument here supports the contention that we are a logocracy. By this I
mean governance by unilateral legislation that mandates less political power for those silenced.
We met what is perhaps the purest case of a logocracy when we imagined the castaways voting
for the don’t-contradict-Rex law. This gave Rex enormous political power through his control
over speech. We noted that there was no reason to think that the original vote to institute the
don’t-contradict-Rex law was made in a non-democratic fashion. Still, it is tempting to say in
casting their votes in this manner, the castaways moved from political equality to a logocratic
form of government. The logocracy that they lived under still allowed them to vote, and so
obviously not all the trappings we normally think are required for political equality were absent.
Still, there can be no doubt that subsequent votes were conducted under conditions that legislated
political inequality. Canadian governance has logocratic elements: to the extent that we have
unilateral censorship on speech that is relevant to policy and politics, we are logocratic. It is true
that the realm of speech restricted is much less than that faced by the marooned living under the
don’t-contradict-Rex law, but that does not change the fact that to the extent that we control
speech the political voices of some are diminished. Our censorship may be less pervasive, but it is
of the same type as the don’t-contradict-Rex law; it is a form of unilateral censorship. And the fact
that unilateral censorship restricts speech on a single issue—exclusivism—ought not necessarily
lead us to believe that this is a fairly minimal legislation of political inequality. The reason is that
it depends not simply on how many issues are restricted, but how central the issues are to a
person’s overall political viewpoint. Recall the discussion above about significant choices made in
connection with votes in multiple communist party elections or multiple choices for nonvegetarian food. Applying this insight to the present case, a racist might say that she would vote
values democracy is connected with, that is, to understand ‘democracy’ purposively. Among influential views is
Rousseau’s argument that equality in collective decision-making is necessary to ensure our freedom and our capacity
to act morally (Jean Jacques Rousseau, The Social Contract, translated by M. Cranston, (New York: Penguin
Classics, 1968)). For similar arguments about the relation between democracy and character see John Stuart Mill,
Considerations on Representative Government, (Buffalo: Prometheus Books, 1991); and Jon Elster, “The Market and
the Forum: Three Varieties of Political Theory,” in Philosophy and Democracy, ed. T. Christiano, (Oxford: Oxford
University Press, 2002) at 52. Another defence of democracy is based on considerations of justice (Peter Singer,
Democracy and Disobedience, (Oxford: Oxford University Press, 1973); Jeremy Waldron, Law and Disagreement,
(Oxford: Oxford University Press, 2001). Also relevant here is the traditional justification for political obligation in
democracies, as seen in Locke for instance, which is that obligation is connected with the fact that citizens have had a
say in the formulation of laws (John Locke, Two Treatises of Government, third edition, ed. Peter Laslett, (New York:
Cambridge University Press, 1988) at section 96).
31
for some form of socialist exclusivist party if such a party were allowed to run in Canada. As it
stands, she votes for a minimal tax libertarian party because she believes that it is morally
repugnant to think that her tax dollars should be used to support people of a different race.
Similarly, a homophobe might say that she was once a great supporter of increased funding for
education and military spending, and drastically reducing the tax burden for families; but now she
could not support such a position given that married gay persons will be teaching some of our
children or fighting in our armed forces. Furthermore, she cannot support a tax break for families
because this means that homosexual couples will receive the same break. The point then is that we
cannot immediately infer from the fact that a single issue is subject to unilateral censorship, that it
will have little effect on political equality.
While I have suggested that to endorse unilateral censorship is to endorse logocratic
governance, notice that I have not said that ‘logocracy’ and ‘democracy’ are contraries. Certainly,
if we take the constitutive view, then these two terms are contraries. That is, on the constitutive
view Canada is a logocracy masquerading as a democracy. But if we take the flexible view then
they need not be seen as contraries. A proponent of this position might say that what we mean by
‘democracy’ on a flexible conception need not conflict with logocratic rule, if logocracies ensure
better political outcomes.
As for the larger issue, whether we should accept the constitutive or flexible conception of
democracy, the previous few pages devoted to democratic theorizing are not sufficient to convince
that the constitutive view must be correct. However, I hope they are sufficient to show that there
is at least some argument that unilateral censorship threatens a commitment to the constitutive
sense of democracy, and that the constitutive view is—at least—a plausible view.
If this is correct, then it is seems possible to mount a section 3 challenge to 319. In part,
this would require the courts to determine whether the Charter should be understood as endorsing
the constitutive or flexible conception of ‘democracy’ As indicated, these appear to be quite
different conceptions of the nature and justification of democracy. Admittedly, neither appears to
be particularly appealing. Let us take stock by taking these in turn.
Undeniably there is broad pubic support for 319(2) and the value of inclusivism, which it
purports to support. An advantage for the flexible conception then is that it is consistent with
319(2). Among the disadvantages we mentioned in connection with the flexibility view is that it
32
requires a departure from how the meaning of ‘democracy’ has often been understood, and the
fact that logocratic rule says that there are two types of citizens: citizens for whom there are no
legislated barriers to participation in political rule, and citizens for whom there are legislated
barriers to participation in political rule. The fact that we are a logocracy, that there are such
legislated political inequalities, is not often acknowledged, so little thought has gone into the idea
that there are two types of citizens. However, it seems that there is good reason to think that they
should be addressed, if we think logocratic governance is justified. For instance, we might ask
about the moral and political relations between these two types of citizens. Now it may be thought
that this talk of two types of citizens is all a bit histrionic given that so few are affected by it. Here
we might take comfort in the fact that there are few political racists like Andrews and his ilk.
However, we should not forget that unilateral censorship in Canada has been extended to include
homosexuals. The recent and very acrimonious debate on same sex marriage in Canada (and
elsewhere) suggests that the number of persons who are partially or completely disenfranchised
by this extension of 319(2) may not be insignificant. This is not to suggest that everyone who is
against same sex marriage has political views that, if expressed, would fall foul of 319(2), but a
significant portion may. My point here is simply that we do not know how many are completely
or partially disenfranchised by logocratic rule. This in itself is perhaps of some concern. Perhaps
empirical work here could help assess exactly how many people are in the partially or completely
disenfranchised class. (One poll, for example, suggests that 20% of Canadians believe that
homosexuals should not have equal rights).44
The major disadvantage of endorsing the essentialist view is that it would require striking
down 319(2), and, as noted, this legislation has broad public support. The advantages of the
constitutive view are that it accords with how most understand the meaning of ‘democracy’, and it
is consistent with the one type of citizen view.
To this last claim it might be objected that if we remove legislation like 319(2) that
requires two classes of citizens, it will have the effect of permitting two classes of citizens. Recall
that it has been argued by others that by not prohibiting certain types of content expression, such
Canadian Press, “Most Canadians say homophobia as bad as racism”
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1085347713661_139/?hub=TopStories (2004). There is at
least some good news from the same poll: most Canadians see homophobia as being as bad as racism.
44
33
as pornography and hate speech, the civil liberties of some are infringed upon.45 Suppose this line
of argument is extended to say that even a minimal amount of political equality will be impossible
for those who would be protected by 319(2). The line of thought here would be that allowing
certain forms of expression such as hate speech silences, or otherwise tends to exclude, certain
minority groups from equal political participation in general, and in elections in particular. Filling
in the details of this argument would be an involved task, and one that would take us too far
afield. But suppose for the moment we accept this line of argument. This would appear to be a
tragic dilemma for the constitutivists’ view: with unilateral censorship we legislate against
political equality for exclusivists, without unilateral censorship we permit political inequality for
those targeted by exclusivist speech.
Certainly this would be an unfortunate outcome for constitutivists, but it is hardly a
foregone conclusion that we must accept this either/or. Consider that we allow communists to
speak in hateful terms with reference to capitalists as ‘murderers’, environmentalists to speak
hatefully of developers as ‘rapists’, and in certain circles ‘white males’ are vilified as being
responsible for many contemporary social ills. One reason that we allow such hateful speech is
that capitalists, developers, and white males tend to enjoy power and privilege (broadly construed)
in society, whereas those protected under 319(2) tend to be less privileged and more vulnerable.
This suggests at least one possibility of reform that does not require resorting to logocratic
governance, specifically a more egalitarian distribution of power and privilege.46 Obviously this is
a topic for another occasion.
Until we see that unilateral censorship requires a commitment to logocratic governance
and flexible democracy, I submit we have not fully understood what is at stake in imposing
censorship laws. Specifically, the question of unilateral censorship raises not only the question,
“How should we be governed?”, but also the question, “Who should rule?” The former question
is the one commonly asked in terms of the appropriate balance between individuals’ right to free
expression and the social value of inclusivism. The later must also be engaged, since unilateral
censorship is a decision to legislate against equal participation of some in the electoral process.
45
MacKinnon supra note 6, Langton supra note 6, Matsuda supra note 6.
Of course there are other possibilities here such as the (controversial) idea of introducing harsher penalties for hate
crimes. For reflection and dissent on this matter see James Jacobs and Kimberly Potter. 1998. Hate Crimes: Criminal
Law and Identity Politics, (New York: Oxford University Press, 1998); Frederick Lawrence, Punishing Hate: Bias
Crimes under American Law, (Cambridge, MA: Harvard University Press, 1999).
46
34
The envisioned Charter challenge to unilateral censorship might shed interesting light on the
Court’s opinion on the nature of democracy and the question of who should rule.
Acknowledgments
I would like to thank Tyler Field, Brian Garrett, Elisabeth Gedge, Matt Grellette, Mike
Hinds, David Rondel, Wil Waluchow and an anonymous referee for helpful feedback.
35