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A (Limited) Victory for Freedom of Expression in Canada:

In You Can't Say That!, I recounted the following troubling incident:

the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix newspaper and Hugh Owens to each pay $1,500 (appoximately $1,000 U.S.) to each of three gay activists as damages for publication of an advertisement placed by Owens conveying the message that the Bible condemns homosexual acts. The ad conveyed this message by citing passages from the Bible, with an equal sign placed between the verse references and a drawing of two males holding hands [actually, I've learned, stick figures] overlaid with the universal nullification symbol--a red circle with a diagonal bar.

Courtesy of my friend (and Canadian law prof) Moin Yahya, I learn that the Saskatchewan Court of Appeal has overturned the ruling against Owens in this decision. Unfortunately, this is only a limited victory for freedom of expression in Canada, because the opinion does not find the the ad was constitutionally protected by the Canadian Charter of Rights and Freedoms. Rather the court found that it would interpret the relevant statute narrowly in light of the Charter, and concluded that the ad did not expose gays to hatred, or ridicule or belittle them, or otherwise affront their dignity, in violation of the Saskatchewan Human Rights Code.

This is certainly a welcome result, but a ruling that the the Human Rights Code unconstitutionally infringes on freedom of expression would have been even better. As it now stands, I doubt any newspaper would publish a future advertisement resembling Owens' for fear that a future court would find that such an ad did violate the code.

Duncan Frissell (mail):
As it now stands, I doubt any newspaper would publish a future advertisement resembling Owens' for fear that a future court would find that such an ad did violate the code.

Luckily, since we all have our own free, international, newpapers these days; the Saskatchewan Human Rights Code can be violated at will by anyone who chooses to violate it and there's nothing that the powerful Government of Saskatchewan can do about it.

QED:

Leviticus, chapter 20, Verse 13

If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.
4.19.2006 3:15pm
Thorley Winston (mail) (www):
Wait a minute, I thought that we only had to worry about losing freedom of speech if those nasty religious people eroded the "separation of church and State" and started passing laws telling people what they can and cannot say. You mean to tell me that a thoroughly secular government can be just as repressive to freedom of speech?
4.19.2006 5:25pm
BobN (mail):

they shall surely be put to death


Do you feel more moral now?
4.19.2006 5:46pm
Clayton E. Cramer (mail) (www):
BobN asks:



they shall surely be put to death



Do you feel more moral now?
Just as relevant: do you feel any less moral because Duncan has quoted from a early Colonial American statute?
4.19.2006 5:52pm
Hans Bader (mail):
The decision to reverse the hate-speech conviction was sensible.

By applying the canon of constitutional doubts to limit the provincial hate-speech statute's expansive reach, rather than ruling squarely based on the Charter of Rights and Freedoms, the provincial court of appeal may have reduced the likelihood of the Supreme Court of Canada granting review and reversing, since the court of appeal may have more authority to definitively construe provincial statutes than to decide the meaning of liberties guaranteed by the Charter, an area where the Supreme Court has the ultimate say.

It's analogous, perhaps, to a state supreme court narrowly-construing a state statute that allegedly violates the First Amendment. If the state court declares that the state statute violates the First Amendment, the U.S. Supreme Court can reverse. But if the state supreme court construes the state statute narrowly to overturn a conviction, its decision cannot be reversed by the U.S. Supreme Court, since state supreme courts are generally the ultimate arbiters of the meaning of state law.

Given that the Supreme Court of Canada is not very friendly to free speech (or civil liberties in general, for that matter), anything that keeps a hate-speech case from being decided by it (without upholding a conviction) may be a good thing.
4.19.2006 6:36pm
Cornellian (mail):
That same verse of Levicitus also cites the death penalty for, among other things, adultery and cursing your parents. Funny how you don't see that cited much these days. For a certain segment of self-proclaimed Christians, the Bible is all about attacking someone else's conduct, not governing one's own conduct.
4.19.2006 6:50pm
Clayton E. Cramer (mail) (www):

That same verse of Levicitus also cites the death penalty for, among other things, adultery and cursing your parents. Funny how you don't see that cited much these days. For a certain segment of self-proclaimed Christians, the Bible is all about attacking someone else's conduct, not governing one's own conduct.
In case you haven't noticed, there's no support for making any of these into capital crimes. All of these were capital crimes, for example, in some of the New England colonies--yet the punishments actually handed down for these crimes were far less severe.

The real issue here is whether free speech is going to be allowed, or whether it has to be prohibited to make homosexuals happy.
4.19.2006 6:56pm
Cornellian (mail):
That same verse of Levicitus also cites the death penalty for, among other things, adultery and cursing your parents. Funny how you don't see that cited much these days. For a certain segment of self-proclaimed Christians, the Bible is all about attacking someone else's conduct, not governing one's own conduct.

In case you haven't noticed, there's no support for making any of these into capital crimes. All of these were capital crimes, for example, in some of the New England colonies--yet the punishments actually handed down for these crimes were far less severe.


In case you hadn't read my post, I said the other provisions of that verse of Leviticus weren't being cited, not that people were calling for the death penalty for any of them.
4.19.2006 7:16pm
Cornellian (mail):
The real issue here is whether free speech is going to be allowed, or whether it has to be prohibited to make homosexuals happy.

Because, obviously, the role of the courts in respecting a statute enacted by a democractically elected legislature shouldn't enter into anyone's consideration.
4.19.2006 7:17pm
Cornellian (mail):
Wait a minute, I thought that we only had to worry about losing freedom of speech if those nasty religious people eroded the "separation of church and State" and started passing laws telling people what they can and cannot say. You mean to tell me that a thoroughly secular government can be just as repressive to freedom of speech?

The Canadian constitution does not provide for separation of church and state, though it does provide for freedom of religion.

Governments of any stripe are inherently a danger to freedom of speech. That's why First Amendment type provisions are enacted to restrain them, and are not qualified according to which type of government is in power.
4.19.2006 7:19pm
Cornellian (mail):
It's analogous, perhaps, to a state supreme court narrowly-construing a state statute that allegedly violates the First Amendment. If the state court declares that the state statute violates the First Amendment, the U.S. Supreme Court can reverse. But if the state supreme court construes the state statute narrowly to overturn a conviction, its decision cannot be reversed by the U.S. Supreme Court, since state supreme courts are generally the ultimate arbiters of the meaning of state law.

The analogy to the US system doesn't work. The Supreme Court of Canada is a general court of appeal. It has the last word on all Canadian law, whether common law, provincial or federal, and it has the jurisdiction to hear appeals from the Saskatchewan Court of Appeal.
4.19.2006 7:22pm
therut:
Cornellian-------I think most serious Christians think adultry and not honoring your father and mother are still sins. I don't believe Christians except some very liberal political Christians think they can change what God has said was sinful. But of coarse the liberal Christian has politized their theology ie theological liberalism or Liberation Theology. Socialism or the more PC term of Social Gospel has replaced the Bible as the foundation of their religion.
4.19.2006 8:39pm
Cornellian (mail):
Cornellian-------I think most serious Christians think adultry and not honoring your father and mother are still sins.

No doubt, but how many of these "serious Christians" are out there holding demonstrations about adultery, quoting Leviticus on the subject, campaigning for election on an anti-adultery platform, or demanding a constitutional amendment on the issue? I see far too many self proclaimed "Christians" who seem to regard homosexuality as nothing more than a cover. That is to say, act as if the Bible elevates homosexuality to some kind of sin that outranks everything else (which it doesn't) and thereby give oneself a convenient excuse for ignoring everything else in the Bible.

I well remember with Roberta Combs of the Christian Coalition went through a divorce a few years back. Jesus himself condemned divorce and never said a word about homosexuality, but when reporters asked her about her divorce, she said it was no one's business but hers and refused to say anything about it. In other words she's, the typical sort of hypocrite one sees peddling a certain brand of Christianity these days. Obligations the Bible imposes (or allegedly imposes) on others are fair game for government action. Obligations the Bible imposes on her are nobody's business but hers.
4.19.2006 9:02pm
Dilan Esper (mail) (www):
I don't buy the idea that there's anything wrong with the Canadian courts narrowly construing the statute. This is a sensible and longstanding rule of jurisprudence-- avoiding constitutional issues in favor of narrow statutory constructions-- which dates back at least as far as Ashwander v. Tennessee Valley Authority in the US.

Reaching out and deciding constitutional questions when it is unnecessary to do so is a form of judicial activism. The fact that it might be more pleasing to David Bernstein to go ahead and strike down the statute isn't really a good argument for doing so. If another case comes along that calls the narrowed statute into question, I am sure the Canadian courts will pass on the constitutional question.
4.19.2006 9:25pm
KeithK (mail):
Cornellian-------I think most serious Christians think adultry and not honoring your father and mother are still sins.

No doubt, but how many of these "serious Christians" are out there holding demonstrations about adultery, quoting Leviticus on the subject, campaigning for election on an anti-adultery platform, or demanding a constitutional amendment on the issue?


But there isn't much disagreement about whether adultery is wrong. Most people agree that cheating on your spouse is wrong, so there isn't a need to hold demonstration to convince people. On the other hand, there is plenty of disagreement today about whether homosexuality is right or wrong.
4.19.2006 9:33pm
Cornellian (mail):
But there isn't much disagreement about whether adultery is wrong. Most people agree that cheating on your spouse is wrong, so there isn't a need to hold demonstration to convince people. On the other hand, there is plenty of disagreement today about whether homosexuality is right or wrong.

Wouldn't that entail the conclusion that there is a stronger case for government action on the subject universally agreed to be wrong rather than on the subject on which there is considerable disagreement as to whether it is wrong?
4.19.2006 10:11pm
Duncan Frissell (mail):
I never actually said that sodomy should be punished (on Earth). I was merely demonstrating the weakness of the Saskatchewan Human Rights Commish.

Note the circa 72 million publishers of 'hate speech' found by Google. A crime that widespread would seem out of control.

Leviticus lists about 12 crimes with the death penalty:

Sacrificing one's children to Moloch

Cursing one's parents

Adultery (with a freewoman but not a bondwoman)

Romancing one's mother

Romancing one's daughter-in-law

Lying with mankind

Bestiality by a man (and the beast is also killed)

Bestiality by a woman (and the beast is also killed)

Wizardry

Blasphemy

Murder

Theft from God (Conversion of property dedicated to God to other purposes)

******

I might add "taxation of income" and "founding a government school" to the list but why quibble.

You might be surprised to learn that this legal regime was put in place as an enormous liberalization. Only 12 crimes punished by death. Public stoning for blasphemy rather than private execution. Big steps. Outlawing child sacrifice -- quite the radicals these Israelites...
4.19.2006 10:56pm
therut:
Let me see if I can explain. A christian knows about sin. A christian knows they have been and still are a sinner. They know they sin. They alot of times sin purposely. But the key is they would not say that their sin was good or should be accepted or would want others to sin or accept sin because they sinned. That is the differece. Christians are very aware of their sin. They know their sin is aganist not only themselves, others or society but aganist GOD. They would not say because I got a divorce then divorce is good. Or because I committed adultry then adultry is good. See the difference. I see this as being conscious of good and evil. The fact that I am conscious of good and evil makes it hard for me to call evil good and good evil. But, It is easy for me to say I have done evil. What some see as Christian hypocracy is really just a observation of a Christian sinning. Something we are well aware of.
4.20.2006 1:35am
Josh_Jasper (mail):
therut - And what makes your interpretation of Christianity correct, and those who think that there is no 'sin' in homosexuality incorrect? After all, there are plenty of 'abominations' in Leviticus that are ignored by Christianity, and again, Jesus never said ONE SINGLE THING about homosexuality.

How is it Jesus managed to de-abominate bacon, which he also didn't mention, but didn't de-abominate homosexuality?
4.20.2006 4:05am
Hans Bader (mail):
People may view this kind of restriction on "discriminatory" speech in the media as uniquely Canadian, but it may not be for long.

Today, April 20, the California Supreme Court is expected to issue its decision in Lyle v. Warner Brothers Television, which will decide whether speech (sexual humor and vulgarity) occurring in the production of a sit-com can be the basis for a discriminatory harassment claim (specifically, a sexual harassment claim), because it has a disparate impact on a protected class (in that case, a female writer's assistant who worked on the sit-com and sued for sexual harassment).

If it upholds the plaintiff's claim, there is no reason why a Muslim employee could not sue for depictions of the prophet Mohammed, or a closeted gay employee could not sue a religious broadcaster for speech similar to that giving rise to the fine in Saskatchewan, since California antidiscrimination law prohibits not only sex discrimination and harassment, but also religious discrimination and harassment and sexual orientation and harassment. The effect would be to give minority employees the ability to exercise a heckler's veto over media speech.

(And since California law apparently recognizes a hostile public accommodations claim, not just a hostile work environment claim, a customer, such as a movie theater patron, might also be able to exercise such a heckler's veto).

Ironically, the California Supreme Court seems less likely to construe the relevant statute narrowly to avoid constitutional problems than the Saskatchewan Court of Appeal did, even though America has historically had a stronger commitment to free speech than Canada.

Several civil liberties groups, such as the Student Press Law Center, Foundation for Individual Rights in Education, Individual Rights Foundation, and Center for Individual Rights, asked the California Supreme Court to apply the statute narrowly in light of the First Amendment, pursuant to the canon of constitutional doubts, but that request may fall on deaf ears.

The California Supreme Court previously gave trial judges broad power to ban hate speech in the workplace through injunctions, if such speech has even an attenuated, speculative connection to a hostile work environment, in the 1999 Aguilar v. Avis case. (That decision was decided by the California Supreme Court in a narrow 4-to-3 vote, and Justice Thomas dissented against denial of certiorari in that case on First Amendment grounds. Two of the Aguilar dissenters have since died or left the California Supreme Court, leaving fewer pro-free speech justices on that court).
4.20.2006 11:40am
Cornellian (mail):
I seem to recall reading a news account of the oral argument in that case which indicated the California Supreme Court was pretty skeptical about the plaintiff's claim. I wouldn't give up on the California Supreme Court just yet.
4.20.2006 1:11pm
Clayton E. Cramer (mail) (www):

Jesus never said ONE SINGLE THING about homosexuality.
I don't recall that he ever said anything condemning cannibalism, or raping children, either. Perhaps because it was assumed.
4.20.2006 6:18pm
Clayton E. Cramer (mail) (www):
Cornellian writes:

Wouldn't that entail the conclusion that there is a stronger case for government action on the subject universally agreed to be wrong rather than on the subject on which there is considerable disagreement as to whether it is wrong?
I completely agree with you. If a law doesn't enjoy overwhelming majority support (say, 2/3 or 3/4 of the voters agreeing), then it shouldn't be on the books.

Whoosh! There go laws prohibiting homosexuality--but also there goes same-sex marriage, nearly all gun control laws, most economic regulations, affirmative action, perhaps anti-discrimination laws (and certainly, anti-discrimination laws protecting sexual orientation).

Somehow, I don't think you really mean what you wrote. I don't find the libertarian position terribly persuasive--but most of the time that someone spouts this "only laws that enjoy overwhelming support should be on the books" position, they really don't mean it. Certainly, a homosexual who argues this way is someone that agrees me on what laws should be on the books.
4.20.2006 6:24pm