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  • Expression and Its Consequences†
  • Frederick Schauer (bio)

I

In 1994 L.W. Sumner published an article titled 'Hate Propaganda and Charter Rights,1 which argued that speech promoting or inciting racial or ethnic hatred could be subject to criminal penalties without violating the protection of freedom of expression guaranteed in section 2(b) of the Charter.2 Because the 'racist propaganda' involved in cases such as Keegstra,3Taylor,4Andrews,5 and Zundel,6 for example, would have a profound effect on vulnerable minority groups, the public-policy case for legal prohibition, argued Sumner, was rooted in important and Charter-protected equality interests. More importantly, the empirical, pragmatic, and consequentialist case for prohibition, while far from certain, was at least more firmly grounded than the empirical, pragmatic, and consequential case the other way. So, whether the arguments for prohibition were to be understood as internal arguments about the limited scope of s. 2(b) or external ones for the prohibition's being 'demonstrably justified in a free and democratic society' under s. 1, the arguments were sufficient, for Sumner, to justify the desirability and constitutionality of a range of prohibitions on what is commonly called 'hate speech.'

Ten years later, Sumner has come to a different conclusion. In The Hateful and the Obscene, he now argues that almost all restrictions on hate speech and almost all restrictions on pornography are inconsistent with the Charter and equally inconsistent with sound principles of [End Page 705] political morality.7 In reaching these conclusions, Sumner has demonstrated considerable courage in two different ways. First, by the very act of recanting his earlier position he has displayed an intellectual honesty that is all too rare these days. It is true that as a philosopher and not a licensed lawyer he is freed from the obligations that at times may prevent those academic lawyers who also represent clients from rethinking their own positions for fear that public recantations will damage the interests of those clients. But even those academic lawyers (and philosophers) who are solely academics and not practising lawyers rarely find major fault with their own previously published conclusions, and the fact that Sumner has shown the courage to confront publicly, and then be persuaded by, the strongest arguments against his own views is something that all of us should admire and most of us should envy.

Even more courageous, however, is the very substance of his current position. On issues of hate speech, all the open liberal democracies of the world - save one - have reached the conclusion that expression inciting to racial and ethnic hatred must be subject to at least formal prohibition in order to serve the values of equality and that such prohibitions are not inconsistent with a robust commitment to freedom of expression in general. That one exception, of course, is the United States,8 which persistently and exceptionally clings to the position that such restrictions [End Page 706] based on the point of view expressed, no matter how odious or equality-denying or simply wrong that point of view may be, are incompatible with the core principles of the First Amendment.9 In reaching his current position, therefore, Sumner has aligned himself with the United States and against the vast majority of the international liberal democratic community, hardly an easy thing for a Canadian to do these days. To conclude that the United States has it right and Canada has it wrong is thus to demonstrate a courage arguably even greater than the courage to recant an earlier position, and so, in two different respects, Sumner has earned our admiration for displaying academic virtue and open-mindedness at its very best.

Yet, although we can admire Sumner for his academic courage, there is no evidence that courage is a particularly reliable indicator of the soundness of the underlying views.10 To have the courage of one's current convictions is often a virtue, but the presence of such courage tells us next to nothing about whether the convictions so fervently held to are in fact correct. For that we must look elsewhere, and my goal in this essay, now that I have praised Sumner for his personal characteristics...

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