October 6, 2009 5:05PM

Free Speech, Hate Speech, and Canada’s Section 13

NewMajority.com has a great series of videos showing the testimony of Mark Steyn and Ezra Levant against Section 13 of the Canadian Human Rights Act.

That section empowers the Canadian Human Rights Commission to punish telecommunications that are "likely to expose a person or persons to hatred or contempt" owing to their protected minority status. It is, in short, a hate speech law.

Penalties are harsh, and can include large fines as well as a lifetime publication ban. For a supposedly liberal country like Canada, Section 13 is an extraordinarily illiberal law.

Section 13 has also lined the pockets of one Richard Warman, a former employee of the Commission who has been responsible for the overwhelming majority of prosecutions in the last decade. Steyn and Levant show in their testimony how Section 13 has prompted computer hacking, the planting of false hate speech, and other underhanded techniques from Warman and the rest of its enforcers. Levant suggests that Warman, a privileged white male lawyer, has been the single greatest beneficiary of the law.

Business regulation boards commonly get taken over by the friends of big business. This is a huge problem in the study of law and economics, one with its very own name -- regulatory capture.

Censorship agencies are a bit different. They don't usually get taken over by the friends of publishers, who might be lenient. Instead, they attract the most aggressive would-be censors, the ones who would most enjoy the powers that a censorship board can offer. Once these arrive, few others will have the stomach to continue serving. Agencies like the Canadian Human Rights Commission suffer from regulatory capture, not by the businesses they regulate, but by the most censorious people around. That's one reason why it's a huge problem to have a censorship board in the first place.

In early September, Section 13 was ruled unconstitutional by the Canadian Human Rights Tribunal. (Confusingly for this Yankee, the tribunal conceded that it could not actually strike down Section 13 but could only decline to apply it in the case at hand.) An appeal is in the works, and Parliament is now considering whether to modify or even scrap the law.

Canadian newspapers across the political spectrum have lined up to support repeal or at least reform. Meanwhile, it appears that Canada's Conservative government doesn't want to be seen as "too conservative" -- and thus it has been reluctant to act. Politically, it's easy to pose as the defender of an outraged minority. It's much, much harder to be the reluctant-but-principled defender of the right of neo-Nazis to spew hatred.

Much like the Megan Meier Cyberbullying Prevention Act, Section 13 is clearly well-intentioned. No one likes people who say cruel or hurtful things, whether on the Internet or anywhere else. Neo-Nazis are disgusting, and it pains even me to have to defend their rights. But a free society is different from an unfree one precisely in that free societies allow distressing speech to take place. The other option, in which the litigious have undue power over all of us, is more distressing still.