The Supreme Court's decision will be scrutinized by both sides in the case; free speech advocates who believe that Mr. Whatcott's right to freely express his religious opinions have been violated, and gay rights groups who see his prosecution as necessary to protect homosexuals from harassment.
Mr. Whatcott's opinions are truly offensive, and I cringe when I read them:
Mr. Whatcott, 43, was judged by a tribunal to have violated Saskatchewan's hate-speech law by distributing pamphlets, beginning 10 years ago, claiming a homosexual conspiracy to corrupt young people in Saskatchewan schools.That being said, I think John Carpay of the Justice Centre for Constitutional Freedoms has it exactly right when he writes in an op-ed in the National Post that the right to be rude must be protected in a free democracy, and that no one has the right to not be offended:
"Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong," said one flyer. In another, he photocopied a classified ad: "I'm 28, 160#, searching for boys/men for penpals, friendship, exchanging video, pics, magazines & anything more. Your age, look & nationality is not so relevant." Above it, he wrote, quoting the Bible, "If you cause one of these little ones to stumble, it would be better that a millstone was tied around your neck and you were cast into the sea."
After many years - and tens of thousands of dollars in legal costs - the Saskatchewan Court of Appeal ruled that Whatcott had not violated the human rights law prohibiting speech which "exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons." The commission appealed to the Supreme Court, which will rule on Whatcott's guilt or innocence, as well as the constitutional validity of this restriction on free speech.I am offended by Mr. Whatcott's writing and by his implication that because I am gay I am a diseased pedophile and that in the good old days I would have had a millstone tied around my neck and been cast into the sea. But, in a free society we must tolerate all kinds of speech that don't actually incite violence or provoke criminal activity. The best response to offensive speech is to expose it in the public square for what it is. Otherwise, legitimate free speech is stifled and offensive ideas are driven underground, which is even worse. Regulating offensive speech implies that functionaries of the government will decide what type of speech is deemed out-of-bounds and thus prohibited - that to me is a much more offensive proposition.
Banning hate speech to protect the vulnerable might be a good idea if anyone could explain the difference between hate and strong dislike. The commission and its allies argued that rude, offensive, unpopular, controversial and hurtful speech is OK, but "hateful" speech is not. According to the commission, Whatcott is fully entitled to express his opinion that homosexual behaviour is sinful and unhealthy, but he must deliver this message in a way that does not come across as "hateful" to any of his listeners. Even the Supreme Court's definition of "hate" in its 1990 decision in Taylor is subjective, depending largely (if not entirely) on the feelings and mindset of the listener, and on unverifiable guesses as to the feelings of the speaker.
Speech that should be banned - such as advocating genocide and counselling a criminal offence - is already prohibited by the Criminal Code. Further restrictions on speech in human rights legislation cast a chill on every citizen's freedom to express opinions on issues important to them. The fact that Maclean's magazine, Calgary Catholic Bishop Fred Henry, Western Standard publisher Ezra Levant and Red Deer pastor Stephen Boissoin were eventually found innocent of violating human rights speech codes is cold comfort to the average citizen. Criminal Code restrictions against certain forms of speech are pretty clear. But citizens have no certainty in knowing what may or may not trigger a human rights prosecution against them.
A legal right not to be offended is incompatible with a free and democratic society. The right to express oneself, to participate in democracy, and to seek truth through debate and argument, is a right possessed by all people, regardless of their level of education or their income. Not everyone uses the kind of language that one hears at a dinner party in Rosedale. The issues that matter most to us as citizens are often the issues that produce the most heated and polemical exchanges.
The state should criminalize speech that advocates or justifies the use of violence. Beyond that, the state should not be in the business of censoring speech, or choosing victim groups. The Whatcott case presents the Supreme Court with a unique opportunity to reject the vague and subjective language - and the chilling effect on free speech - of human rights laws.