A new study, summarized in Monday’s edition of The New York Times, shows that U.S. Supreme Court justices protect freedom of speech more often in cases where they share the ideological leanings of the speaker. One might be forgiven for responding with a resounding, “no kidding.”
Judges are human, and no matter how neutral they genuinely try or wish to be, they still, like the rest of us, are inclined to defend more vehemently those people and causes that strike them as being sympathetic than those people and causes that don’t. That’s why any free-speech advocate worth his salt will insist on explicitly extending free speech protections to the vilest and most controversial of views — and why Canada’s hate-speech laws are so problematic.
What is called “hatred” can easily amount to simply speech that most of us just don’t like. Once we accept that the presence of “hate” is enough reason to prohibit expression, we’ve given the men and women in robes the power to impose the will of the mainstream as a muzzle; and to use their own particular political ideologies as a guide for whom to silence and whom to let speak.
Though the Trinity Western University law-school case is not explicitly, or at least not exclusively, a free speech case, this issue was the first thing that came to mind when I learned about the new U.S. study. The Canadian controversy has pitted a private Christian school that would make its students sign a covenant to abstain from sex outside heterosexual marriage, against self-proclaimed advocates for tolerance who view the existence of the covenant as evidence that TWU unacceptably discriminates against lesbians and gays. Both sides are pushing for the right to exercise their own expression of the diversity Canada likes to boast about welcoming.
Many Canadians claim they value diversity in the context of both religion and sexual orientation. The problem is that when asked to decide which group deserves more government protection, the answer depends largely on the ideological and/or religious leanings of the decision maker.
So far, the anti-TWU side is winning. The Law Society of Upper Canada has decided not to accredit TWU’s law school (a decision that TWU is fighting in the courts). That’s not especially surprising given that in contemporary mainstream Canadian society — and certainly in that part of society most likely to be part of Ontario’s elite legal circles — it’s far more common to view gay and lesbian communities as sympathetic than it is to view religious Christian communities as sympathetic.
Is that a problem in itself? No. There’s a long history of real violence and intolerance toward gay people, not to mention explicit legal prejudice, which has brought us here. It’s a sign of a healthy and compassionate society that we’ve evolved to the point where our natural sympathies now lie with the fellow human beings who were once so cruelly shunned.
The less mainstream a viewpoint, the greater the need to take care not to carelessly trample on the rights of those who hold it
But a truly healthy and compassionate society will be one wise enough not to let protections of expression be decided by majority leanings, of either the population or the equally human judges that population has appointed. The truly healthy and compassionate society errs heavily on the side of freedom as a principle, so that prevailing ideologies don’t become the deciding factor between a Canadian being able to express himself and a Canadian having to suppress his thoughts or religious beliefs.
The general rule is that, as the ACLU has put it, “the defense of freedom of speech is most critical when the message is one most people find repulsive.” The same can be said of the defense of freedom of religion. The less mainstream a viewpoint, the greater the need to take care not to carelessly trample on the rights of those who hold it.
While decades ago a covenant about restricting sex to the heterosexual marriage bed would probably have been considered unremarkable, today it strikes a great many of us as decidedly out of date and offensively limiting. But should that give us the right to effectively ban those who subscribe to it from practicing law? On the contrary; it should serve as a warning that those who subscribe to it are in particular need of protection from being punished by the state.
Will Canada one day reach a point where there just isn’t enough demand to sustain a law school such as TWU? I have no idea. But whether or not it does should depend on Canadians’ free choices and not the government’s imposition of the kind of tolerance or diversity most in vogue at the time.
Subscribe to Freedom Updates and get regular updates on our work and important constitutional issues in Canada.