We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 July 2015
The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book, The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.
My thanks to Mike Cahill, Stephen Galoob, Palma Paciocco, Dan Priel, Spencer Robinson and Ken Simons for detailed and helpful thoughts on this draft.
1. NCE parallels Harry Frankfurt’s sufficientarianism, with the caveat that while Frankfurt sees a focus on non-comparative status as in competition to comparative equality, I believe the concept of equality is capacious enough to encompass a non-comparative dimension. See Frankfurt, Harry, “Equality as a Moral Ideal” (1987) 98:1 Google Scholar Ethics 21. For a more recent discussion of sufficientarianism and equality, see Pettit, Philip, On the People’s Terms (Cambridge: Cambridge University Press, 2012) at 88–89 CrossRefGoogle Scholar.
2. I bracket the question here of whether those interests are best cashed out in terms of capabilities, resources, welfare or some other metric.
3. This function of the civil-criminal distinction is particularly noticeable in the American context. See, e.g., Padilla v Kentucky, 130 S Ct 1473 (2010); Smith v Doe, 538 U.S. 84 (2003); Kennedy v Mendoza-Martinez, 372 US 144 (1963). It is also apparent in Canadian law, though to a lesser degree. See R v Wigglesworth, [1987] 2 SCR 541, 45 DLR (4th) 235; Whaling v Canada (Attorney General), 2012 CarswellBC 3357, 292 CCC (3d) 502.
4. I have defended this usage elsewhere; see Chiao, Vincent, “Punishment and Permissibility in the Criminal Law” (2013) 32:6 Google Scholar Law & Phil Law & Phil.
5. I am in a sense simply following HLA Hart’s suggestion that while guilt might make someone eligible for punishment, it would not itself provide a reason for punishing him. See “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility (Oxford: Oxford University Press, 1968) 1.
6. NCE is a controversial view, and faces serious challenges, particularly regarding policies that put people just below the threshold while achieving massive gains for people above the threshold. However, my aim here is not to defend NCE but rather to draw out some of its implications so, having noted them, I shall not consider these challenges further.
7. For elaboration of this line of thought, see Chiao, Vincent, “Against Punishment”Google Scholar [unpublished MS].
8. See Anderson, Elizabeth, “What is the Point of Equality?” (1999) 109:2 Ethics 287 CrossRefGoogle Scholar.
9. R v Keegstra, [1990] 3 SCR 697, 124 DLR (4th) 289 [Keegstra cited to SCR]; Criminal Code, RSC 1985, c C-46, s 319(2). The statutory scheme identified the following as protected groups: “any section of the public distinguished by colour, race, religion, or ethnic origin” (ibid, s 319(7), s 318(4) as cited in Keegstra at para 7). The current version of the scheme adds as a protected group those distinguished by sexual orientation (ibid, s 319(7), s 318(4)).
10. Keegstra, supra note 9 at para 64; see also para 114 (referring to “severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda”).
11. Ibid at para 61.
12. Ibid at para 80.
13. Ibid at para 100.
14. Ibid at paras 136, 105. McLachlin J, writing for the dissenters, suggested that whatever expressive value might come from prosecutions under s 319(2) would have to be balanced against the extensive (and free) publicity that they would bestow upon hate groups (ibid at paras 301-05).
15. For a parallel discussion in the context of pornography, see Sumner, Wayne, The Hateful and the Obscene (Toronto: University of Toronto Press, 2004 CrossRefGoogle Scholar) ch 5.
16. In contrast to pornography, there appears to be very little published research on the causal impact of hate speech. Sumner found no cross-sectional, longitudinal or laboratory studies on the topic. Ibid at 158-159. But see Mullen, Brian & Rice, Diana R, “Ethnophaulisms and Exclusion: The Behavioral Consequences of Cognitive Representation of Ethnic Immigrant Groups” (2003) 29:8 Pers Soc Psychol Bull 1056 CrossRefGoogle ScholarPubMed (reporting association between negative representation of 19 European ethnic groups and a variety of indicia of social exclusion, including intermarriage, membership in fraternal organizations, residential segregation, employment discrimination, naturalization rates and immigration quotas); Mullen, Brian & Smyth, Joshua M, “Immigrant Suicide Rates as a Function of Ethnophaulisms: Hate Speech Predicts Death” (2004) 66:3 Psychosomatic Medicine 343 at 344-46Google Scholar (finding correlation between negative representation of European ethnic groups and suicide rates).
17. [1990] 3 SCR 892 at para 40, 75 DLR (4th) 577 [Taylor].
18. For a defense of appellate deference to agency decisions taken under conditions of genuine uncertainty, see Vermeule, Adrian, “Rationally Arbitrary Decisions (in Administrative Law)” Harvard Public Law Working Paper Series (25 March 2013)CrossRefGoogle Scholar online: Social Science Research Network http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239155.
19. Keegstra, supra note 9 at para 101.
20. Saskatchewan Human Rights Code, SS 1979, c S-24.1, s 14(1)(b); Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11, 355 DLR (4th) 383 [Whatcott].
21. Ibid at paras 74, 82.
22. Ibid at para 75.
23. Ibid at para 82.
24. Ibid at para 57.
25. Ibid at paras 57, 71.
26. Ibid at para 95.
27. Waldron, Jeremy, The Harm in Hate Speech (Cambridge: Harvard University Press, 2012)CrossRefGoogle Scholar. Waldron actually cites Keegstra in developing his concept of assurance (ibid at 84-85).
28. Ibid at 84.
29. Ibid at 91-92, where Waldron compares his approach to MacKinnon’s discussion of the causal contribution of pornography to violence against women, and identifies a “deeper issue”—that of the “dignitary order of society”—that is independent of the causal argument (ibid at 97-99).
30. Ibid at 34-39; the quoted phrase is on 37-38. Waldron does consider the impact of racist radio broadcasts during the Rwandan genocide; see ibid at 71-72. However, the distinction between (relatively permanent) visual representations and (relatively ephemeral) speech might be questionable in the era of smartphones and YouTube, which make it possible to record and upload the most fleeting of remarks for consumption on a worldwide scale. For a related discussion, albeit in the context of obscenity, see Green, Leslie, “Obscenity Without Borders” in François Tanguay-Reynaud & Stribopoulos, James, eds, Rethinking Criminal Law Theory (Oxford: Hart, 2012) 75.Google Scholar
31. Waldron, supra note 27 at 96.
32. Ibid at 92-96.
33. Waldron’s concern lies predominantly with the rights-based arguments about free speech, whereas my concern lies predominantly with the criminalization of hate speech. That said, Waldron takes criminal libel statutes as his model for group defamation. Criminal libel statutes were used by states to keep the peace, not just to secure private individuals’ reputations. Waldron, supra note 27 at ch 3.
34. Waldron, supra note 27 at 96-97.
35. Ibid at 97.
36. In Keegstra, supra note 9 at para 114, the majority refused to require proof that hate speech causes an increase in hateful sentiments among the public because proving a “causal link” would be too difficult and because it was already established that Parliament could “use the criminal law to prevent the risk of serious harms.” A better rationale for the outcome in Keegstra might, accordingly, have been one of judicial deference to Parliament’s prerogative to act in advance of empirical evidence.
37. Robert Mark Simpson argues in a similar vein that Waldron’s attempt to bracket the actual impact of hate speech on conduct renders assurance too thin to bear the weight that Waldron assigns it. As Simpson puts it, “[w]hat has gone awry, when assurance fails, is that people cannot reasonably count on not being discriminated against, humiliated, or terrorised. If hate speech was not backed by genuine prejudice or hostile intentions—if it was merely superficial, offensive abuse—then it seems doubtful that people’s sense of assurance of their status would be seriously threatened. Hate speech gets its potency, in real life cases, from the fact that it does reflect a deeper, sinister current of identity-op Pressive intention. But then it is surely this underlying state of affairs—the fact that there are people who genuinely feel the contempt they express in hate speech, and who would be prepared to act on it—which puts people in a position such that they cannot reasonably count on not being discriminated against, humiliated or terrorized.” “Dignity, Harm and Hate Speech,” (2013) 32: 6 Law & Phil 701.
38. It might also be prohibited insofar as it evinces an intent to intimidate, rather than a content-based regulation of speech. See Virginia v Black, 538 US 343 (2003) at 362.
39. See especially Feinberg, Joel, Offense to Others (New York: Oxford University Press, 1988).Google Scholar
40. Waldron, supra note 27 at 105.
41. Whatcott, supra note 20 at para 82.
42. The Court has, in the context of child custody proceedings, recognized “psychological integrity” as a protected interest under section 7 of the Charter of Rights and Freedoms. See New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46, 177 DLR (4th) 124.
43. Waldron, supra note 27 at 106-07.
44. Ibid at 121.
45. Ibid at 1, 84.
46. Ibid at 84.
47. Whatcott concerned non-criminal sanctions under Saskatchewan’s human rights code. But Whatcott leaves untouched Keegstra‘s earlier holding that criminal sanctions are justified under s.1 of the Charter as a means of regulating hate speech.
48. Brian Leiter, Book Review of The Harm in Hate Speech by Jeremy Waldron, online: (2012) Notre Dame Philosophical Reviews http://ndpr.nd.edu/news/32077-the-harm-in-hate-speech/.
49. A recent op-ed in one of Toronto’s major daily newspapers, the Toronto Star, referred to former United States vice-president Dick Cheney as a “war criminal,” implied that he was both a crank and a coward, likened his policies to those of the “Nazis and Japanese,” stated that “[t]he world has become “measurably more awful” because of his actions and that he has eluded justice because of his wealth, before ending by calling Cheney “a terrible man, a slab of congealed venom who has brought misery and pain to every aspect of American governance he has been allowed to touch since 1969,” and a “dead man[]” who is “floating in the blood of others.” Heather Mallick, “The malign Dick Cheney is visiting Toronto,” Editorial, Toronto Star (29 October 2013) online: http://www.thestar.com/opinion/commentary/2013/10/29/the_ma-lign_dick_cheney_is_visiting_toronto_mallick.html.
If Tea Party politicians have a right to recover after being called “liars,” it seems that Waldron must take the view that the Toronto Star ought not have been permitted to run this editorial; Cheney ought to have been able to enjoin its publication as an assault on his dignity, and perhaps also to recover monetary damages after the fact. Notably, the author of the editorial was arguing that Cheney should be denied entry into Canada (where he had been invited to give a lecture), and was thus directly attacking Cheney’s social and legal status, not just his beliefs and policies.
50. Harel, “The Duty to Criminalize” [unpublished MS, at 5]. Harel thinks of this duty as “constitutional.” I will not go into Harel’s reasons for thinking this; for discussion, see Harel, Alon, Why Law Matters (Oxford: Oxford University Press, forthcoming 2014 CrossRefGoogle Scholar), ch. 5 (“Why Constitutional Rights Matter.”)
51. See Pettit, supra note 1 at 83: “people should have a publicly established and acknowledged status in relation to others; only this could enable them to walk tall and look others in the eye. Within the sphere of those liberties people should be entrenched on a public basis against the incursions of others. They ought to enjoy objective safeguards that apply regardless of the will of others as to how they should choose in that domain. And it ought to be a matter of shared awareness in the society that they are so guarded.”
52. Gneezy, Uri & Rustichini, Aldo, “A Fine is a Price” (2000) 29:1 J Legal Stud 1 CrossRefGoogle Scholar.
53. When the State Speaks, What Should it Say? (Princeton: Princeton University Press, 2012) at 3. See especially ch 3.
54. Ibid at ch 3 and 4.
55. Ibid at 86.
56. Criminal sanctions are a proper subset of coercive sanctions. Coercion for Brettschneider occurs when “the state threaten[s] to impose a sanction or punishment on an individual or group of individuals with the aim of prohibiting a particular action, expression, or holding of a belief.” Ibid at 88. Value democracy thus supports a more restrictive account of the permissible means for the promotion of second-order interests than the argument from egalitarianism, which rules out only criminal sanctions, i.e., sanctions that seriously invade a person’s first-order interests. On the other hand, by predicating the argument on invasions of interests rather than coercion, the argument from egalitarianism avoids the rather sticky issue of determining what “the” aim of any given state action is.
57. State regulation, even coercive regulation, extends well beyond first-order interests. Insofar as those regulations need criminal sanctions as a final backstop for compliance purposes—the paradigmatic case is contempt of court—there is an important role for criminal sanctions in promoting institutional stability, even when those institutions are not themselves directly protective of first-order interests. This is an important distinction between Taylor, supra note 17, in which the accused were charged with ignoring an order from Canada’s federal human rights tribunal requiring them to shut down their white supremacist phone service, and Keegstra, supra note 9, in which the accused were charged directly with willfully promoting hatred in violation of the Criminal Code. Whether there is a plausible justification for imposing criminal sanctions in these kinds of cases depends, I suggest, on whether it is plausible to construe an interest in self-government through stable institutions as itself a first-order interest.
