Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada

Description

Freedom of expression on disturbing matters of society, history, and governance is becoming ever more contested in Canada. The idea that official meanings and histories can legally substitute for publicly constructed ones - for fear of what an uncensored public might themselves construct - is gaining widespread acceptance. Public invocation of hate propaganda law, its language, and its moral authority in otherwise ordinary discursive contexts, has been crucial to, and symbolic of, this trend. Democracy Off Balance offers an unsettling analysis of hate censorship and hate censors as a complex paradox of modern democratic discourse. Stefan Braun argues against the supposed public interest served by the hate speech laws and dissects the paradoxical forces - the politically self-contradictory thinking and the socially self-defeating assumptions - that drive hate censorship in Canada today. Braun draws on censors' own terms of social and political reference to show how they undermine their own causes with hate censorship and uncovers how hate speech law subtly impacts far beyond its strict legal confines to condition and corrode public discourse. He brings together the debate and the debaters in a multidimensional approach that challenges traditional ways of seeing the legal boundaries of freedom of expression. Democracy Off Balance is a timely and absorbing exploration of a highly controversial topic. Contents Acknowledgments Introduction Chapter One: Foundations of the Imbalance I: The Malady and the Prevention: A Brief Historical Perspective II: The Political and Intellectual Slide: From Open Bigotry to Subconscious Prejudice to Structural Discrimination – from National Survival to Social Transformation III: The Juridical Slide: From a Right of Expression to a Question of Content – the Evolution of Asymmetry in Judicial Balancing Conclusion Chapter Two: Functions and Assumptions of Freedom of Expression I: Participation, Self-determination, and Self-government II: Enlightened Publics, Honest Politics, Accountable Politicians, and Self-government 1 Enlightened Participation and Social Division 2 Meaningful Public Discourse, Social Truth, and Social Division 3 Multiplicity of Public Truth and Social Division 4 Honest Politicians, Accountable Politics, Public Division III: Adaptation, Change, and Enduring Self-government Conclusion Chapter Three: Functions and Assumptions of Hate Propaganda Law I: Peace and Order: Victim Retaliation and Disturbance to Public Order II: Community Participation and Multiculturalism: Hate-Induced Self-exclusion, Self-withdrawal, Negative Participation, and Assimilation III: Community Participation and Multiculturalism: Societal Exclusion – Visible and Invisible 1 Visible Exclusion 2 Invisible Exclusion IV: Social Disintegration and Political Conflagration: The 'Mushroom' Thesis Conclusion Chapter Four: The Political Dilemma, Part I: Legally Definable and Politically Defensible Hate Censorship I: Unwrapping the Politics of Content: What Is Hate Propaganda and How Do You Fix It? II: Unwrapping the Politics of Victimhood: Absolute Victims and Absolute Victimizers III: Unwrapping the Politics of Fixing Social Right: Trusted Censorship and Trustworthy Censors 1 Competence 2 Chilling Effects 3 Accountability 4 Conflict of Interest 5 Fixability Conclusion Chapter Five: The Political Dilemma, Part II: The 'Slippery Slope' I: The Drive to Slide 1 Rival Groups and the Conduct of Silencing 2 Censors and Self-justification 3 The Public, the Politician, and the Paradox 4 The Public, the Politician, and the Hatemonger II: Changing Course: The Political Dynamics of Self-correction and the Legacies of Censorship's Slide 1 The Political Dynamics of Self-correction 2 Political Backlash and Its Legacies Conclusion Chapter Six: The Pragmatic Dilemma: Hate Censorship That 'Works' I: How Prosecution Misappropriates Discursive Public Conflict and Misshapes Public Perceptions to the Detriment of the Cause of Repression II: Effective and Successful Censorship? Mutual Exclusivity and the Four False 'Faults' 1 Trial 2 Media Coverage 3 Opponents and Technology 4 Coverage or Targeting III: Effectiveness and Success: The Dilemma of the Moving Target – the 'Slippery Slope' Revisited IV: Differential Censorial Impact: The Final Blow 1 The Shield: Subjective Audience Impact 2 The Sword: Subjective Speaker Impact Conclusion Chapter Seven: The Jurisprudential Dilemma: The Exceptions Defence and Democratic Justification I: Manner and Form Regulation II: False Alarms (Pranksterism) and Fighting Words III: Defamation of Public Officials (Libel and Slander) IV: Obscenity V: Group Defamation and Seditious Libel 1 Group Defamation: Beauharnais v. People of the State of Illinois 2 Seditious Libel: Boucher v. The King Conclusion Chapter Eight: Alternative Juridical Balances and Balancing Juridical Alternatives I: Suppression of Hatred against Identifiable Groups Expressed through False Facts on Matters of Society, History, or Governance II: Suppression of the Promotion of Hatred against Identifiable Groups III: Suppression of Incitement to Illegal Acts of Hatred against Identifiable Groups Likely to Produce Such Illegal Acts IV: Temporary Suppression of Expressions of Hatred in Extraordinary Conditions of Grave and Irreparable Harm Chapter Nine: Alternative Measures: Towards a Less Self-intrusive Balance I: Progress and Prognosis: Alternatives to Legal Silencing Revisited 1 The Work of Alternatives in Canadian History 2 Uses and Abuses of History: Missing and Mispackaging the Evidence II: The Case for Alternatives 1 Punishment and Command Alternatives 2 Discursive Alternatives 3 Mixed Discursive Alternatives Conclusion Conclusion Appendix Table of Cases Table of Legislation Notes Select Bibliography Index