Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 31
the teachers’ rights to a degree of subjectivity or deference to public opinion or
pressure. The greatest danger to freedom of expression, however, is in expanding
the concept of discrimination to include negative viewpoints rather than
restricting that concept to negative actions or decisions. This is true whether it is
done in educational (or other) disciplinary decisions, in human rights cases
expanding the definitions of “discrimination” or “harassment” in interpreting
legislation, or in legislation which expressly targets expression on the basis of
ideas.
A particular irony involved in this case is that until fairly recently, a teacher
or counsellor would almost certainly have faced severe sanctions for public
speech in favour of homosexuality, or because he was gay. We now have come to
realize that such a situation would be wrong, and our legal system now quite
properly protects against such injustice. However, is it any more just for a person
to be penalized for taking an opposite position, even absent direct discrimination
against or harassment of a student by such person It must be recalled that much
of the communication that is now criticized (and sometimes penalized) as
“extremist”, “bigoted”, “discriminatory”, or “politically incorrect” was
(throughout most of history and in most societies) considered “mainstream”.
Indeed, the proponents of concepts such as “equality” or “human rights” that are
now officially endorsed were often themselves dissidents and were sometimes
considered “extremists” and subject to severe penalties or even persecution.
Often such progressives relied on constitutional or other protections of freedom
of expression and related concepts for much of the protection they had or
progress they made.
This is certainly not to suggest that we reverse our human rights progress or
revert to the behaviour or norms of less enlightened times. However, neither
should we attempt to “freeze” our current norms, principles, and values in time.
We must not assume that our current generation, culture, society, or authorities
(or indeed any generation, culture, society, or authorities) can be absolutely
certain of the correctness of accepted ideas, 39 —or even of the “direction” a
society would like to move. Therefore it seems unsafe and inappropriate to
penalize those who would challenge these ideas or would move us in a different
direction (even if some would call that direction “backward”). Humanity
develops and evolves gradually, over the course of the generations and centuries.
Freedom of expression helps to ensure that the ideas and institutions that
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At any rate, as can be seen, there is not (and probably cannot be) unanimity as to what ideas
should be ‘accepted’—either in our Canadian society or in the world at large. History has amply
demonstrated the danger, folly, and tragedy involved in any attempt to coerce or artificially
create such unanimity.