Körero Whakamauähara : Hate Speech The Canadian Supreme Court case of R v Keegstra, which examined the constitutionality of Canada’s federal hate crime offence, identified the impact on society at large and the discord that hate speech can create between groups.8 New York University Professor Jeremy Waldron, author of The Harm in Hate Speech, argues that regulating hate speech protects the public good of dignity-based assurance:9 Dignity . . . is precisely what hate speech laws are designed to protect-not dignity in the sense of any particular level of honor or esteem (or selfesteem), but dignity in the sense of a person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify him or her from ordinary social interaction. That is what hate speech attacks, and that is what laws supressing hate speech aim to protect. He argues that offence, however deeply felt, is not a proper object of legislative concern but that: Dignity and the assurance that comes with it are public goods constituted by what thousands or millions of individuals say and do. Our society is heavily invested in the provision of those goods. The point of hate speech is to detract from that provision – to undermine it and establish rival goods that indicate (to fellow racists, to members of vulnerable groups, and to society generally) that the position of 8 9 10 11 some minority or other is by no means as secure as the rest of the world would like to affirm. The point of hate speech restrictions…is to protect the first set of public goods from being undermined in this way. They are set up to vindicate public order, not just by pre-empting violence, but by upholding against attack a shared sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing—particularly against attacks predicated upon the characteristics of some particular social group. Hate speech may lead to violence or public disorder because it encourages the commission of hate crimes against members of the targeted groups.10 Hate speech may also lead to the promotion of negative stereotypes about the targeted group, resulting in an increase in discriminatory treatment of members of that group in society. While it is difficult to establish empirical evidence, it is likely that the cumulative effect over time of hate speech targeted at a particular group will be to spread and reinforce negative social attitudes and escalate discrimination towards members of the targeted group. The Human Rights Review Tribunal in Wall v Fairfax referred to the impact of hate speech:11 While the right to freedom of expression is one of the most essential elements in a democratic society we accept the principle that expression that advocates racial disharmony or hatred against a group of persons on the basis of their immutable R v Keegstra [1990] 3 SCR 697: Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence … a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda … have a severely negative impact on the individual’s sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society. A second harmful effect of hate propaganda … is its impact on society at large. It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society. Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, Cambridge, 2012) at 105. At 73 cites commentators that have utilised historical examples to draw a link between hate speech and genocide. Wall v Fairfax [2017] NZHRRT 17 at [186]; the Tribunal referred to the European Court of Human Rights in Vona v Hungary [2013] ECHR 653 at [57]: In the Court’s view, the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. 5