The Case Against Hate-Speech Laws: a Canadian Perspective

In April, Canada’s federal government announced plans to criminalize speech that denies the Nazi genocide of six million Jews during World War II. At the time, Prime Minister Justin Trudeau presumably saw this as a popular, low-risk initiative. All reasonable people find Holocaust denial to be repugnant. A similar law already exists in Germany, and the Canadian version has multi-party support. (In fact, one Conservative MP is accusing the PM of stealing his idea.) During the Trudeau era, moreover, Canada’s progressive politicians and media have tirelessly promoted the claim that we are in the midst of a dangerous surge in right-wing extremism, with the proposed hate-speech provisions being marketed as part of a $5.6 million plan to combat antisemitism more broadly.

As a Jew, I have seen little evidence of any antisemitic surge in Canada—even if social media makes it easier to identify and call out the scattered cranks who do still peddle Jew hatred on their obscure websites and social-media accounts. Which is why I believe the government’s plan to criminalize Holocaust denial is more about attracting Jewish votes than protecting the Jews who cast them. But that’s not something you’re supposed to say out loud in polite company.

Some journalists have criticized the proposal on the basis that it might be unconstitutional. But one doesn’t have to invoke the Charter of Rights and Freedoms to explain why banning Holocaust denial is a bad idea. One need only hearken back to the controversy that erupted in the early 2010s over plans to build a Museum for Human Rights in Winnipeg.

The plan for that project was to devote a large showcase exhibit to the Holocaust, while lumping the treatment of other historical atrocities in another pavilion. The organizers told reporters that the Holocaust isn’t just one mass human slaughter among many, but rather a unique catastrophe whose horrors shaped all modern human-rights struggles.

Not surprisingly, members of other Canadian ethno-religious communities weren’t happy, and Canada was treated to an extended and very public fight between Jewish community groups and their Polish, German, and (especially) Ukrainian counterparts over the museum’s design. (At one point, the president of the Ukrainian-Canadian Congress sent out a mass mailing complaining that the Holodomor exhibit was right next to a bathroom.) If the Canadian government now passes a law that forbids denial of the Holocaust, without banning the denial of other historical crimes, there’s no reason why we won’t be treated to the same kind of divisive spectacle.

Canada already has a hate-speech law, which falls under Section 319 of the Criminal Code. And while it’s mostly been invoked against antisemites (schoolteacher James Keegstra being the most infamous), the law was drafted in identity-neutral terms, potentially criminalizing anyone who “wilfully promotes hatred against any identifiable group.” Now, for the first time since that law came into force almost four decades ago, politicians are explicitly skewing it toward protecting one specific group of Canadians, with Trudeau’s planned amendment prohibiting statements “that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.”

Denying the Stalinist terror-famine that killed about four million Ukrainians in 1932–1933 isn’t covered. Nor is denying the Rwandan Genocide, the Armenian Genocide, the Cambodian Genocide, the Ottoman slaughter of the Greeks, the numerous massacres that have taken place in the Balkans, nor any of the many other mass slaughters that litter human history. Just the Holocaust.

But of course, that could soon change—since this amendment wouldn’t preclude more changes in the future. And what Canadian politician wants to tell, say, a Rwandan refugee or the descendant of Holodomor victims that while our historical memory of the Holocaust is inviolate, their own ancestors’ deaths at the hands of genocidaires are up for debate?

And ticking off genocides under an expanded Section 319 may prove to be just the beginning. In recent years, it’s become common to assert the life-and-death urgency of Black Lives Matter, trans rights, Indigenous reconciliation, and numerous other progressive causes in hyperbolic language that once had been reserved for history’s worst crimes. Police, we are told, are waging a campaign of extermination against black communities. To assert a biologically rooted understanding of man and woman is to “deny the very existence of trans people.” Earlier this year, Trudeau’s Minister of Crown-Indigenous Relations used the term “denialism” to attack anyone who questioned the misleading and lurid reporting surrounding suspected (though as yet unexhumed) Indigenous child graves in Kamloops, BC—a clear linkage to the concept of Holocaust denial. TVO, Ontario’s public broadcaster, has prominently featured an Indigenous activist who not only insists that Canada “continues to commit genocide” against Indigenous women and girls, but also that expressing skepticism in regard to this genocide claim is itself “a tool of genocide.” If denial of the Holocaust becomes part of Section 319, why would we not expect this kind of “denial”—and a dozen others—to not eventually be included as well?

All of what I have written here falls into the debating-tactic category known as slippery slope. But the threat here isn’t abstract. In the UK, ordinary citizens have been visited by police officers after they’d posted on social media about males and females being distinct biological categories that should not be superseded by self-declared gender declarations. That happened in the UK under a Conservative government. In Canada, by contrast, we have a PM who’s already shown himself eager to implement all manner of new censorship regimes, and whose minority government is now propped up by an even more dogmatically progressive politician in the form of New Democratic Party leader (and serial conspiracy theorist) Jagmeet Singh. It is not science fiction to imagine that Section 319 and other as-yet-undrafted Canadian “anti-hate” laws will metastasize into an ever-growing list of specifically enumerated arguments, claims, statements, and viewpoints whose expression will get you investigated for hate speech.

Canada is a democracy, of course. And once Trudeau and Singh leave office, another (presumably) more conservative government will eventually be installed. Section 319 could then be stripped back down to its original form, or even eliminated altogether—much as Stephen Harper’s Conservative government (properly) got rid of Section 13 of the Canadian Human Rights Act, which had allowed private human-rights enthusiasts to go after anyone they believed was using broadcast technology to communicate material “likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.”

But I don’t have any faith that a conservative Canadian government would prune back or rescind Section 319, at least not in a principled way, because history shows that conservatives are just fine with “anti-hate” censorship, so long as such censorship is directed against those deemed seditious or unpatriotic. Poland and Russia have laws that ban historical depictions that clash with nationalist mythology, for instance. In Turkey, it’s literally illegal to assert the reality of the Armenian Genocide. And in Canada, an analogous brand of reactionary populism could easily take expression in efforts to leverage hate-speech laws against, say, antifa, Islamists, Palestinian-rights supporters, or militant Indigenous activists.

Perversely, progressives and reactionaries are often in perfect agreement about the need to police viewpoints and historical narratives. It’s just that their legislative impulses push them in diametrically opposite directions, with both paths being incompatible with political liberalism and ideological pluralism.

It is certainly possible to draft a fastidiously neutral, narrowly tailored hate-speech law that doesn’t play favourites when it comes to race, religion, or ideological orientation, and so cannot be used by culture warriors to advance their own interests. Indeed, Section 319 of the Canadian Criminal Code arguably has answered to that description: It’s been invoked rarely, and even then only against real haters.

But as Trudeau’s government shows us, once such a law exists—no matter how limited its contours—it will present political opportunists with a strong temptation to co-opt it in one fashion or another. And to my knowledge, the only surefire defence against this tendency is to not have any anti-hate-speech law on the books in the first place.