Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 35
to contain the necessary “purpose”), this formulation could be more intrusive of
freedom of expression than some provisions earlier referred to.
Although the reference in s. 1(b) to “the superiority or inferiority of a person
or class of persons in comparison with others” is consistent with Article 4(a) of
the International Convention on the Elimination of all Forms of Racial
Discrimination, 51 this targets a particular ideological perspective, and therefore
violates one of the most important aspects of freedom of expression, “the
neutrality principle”. The “neutrality principle” asserts that no idea is beyond
freedom of expression protection, and includes the concept of “viewpoint
neutrality.” “Viewpoint neutrality” means that, even in circumstances where it is
legitimate to regulate expression, regulation must not be done on the basis of the
viewpoint expressed. 52
I certainly acknowledge the revulsion and fear that concepts of racial
superiority or inferiority engender, and how such ideas have led, or contributed,
to tragic abuses. Yet prohibiting the expression of such ideas creates serious
problems of its own. Discomforting though it may be, race is central to many
controversies within the scientific and academic disciplines, as well as within
society at large. If scientists, academics, authors, publishers, or institutions were
51
Article 4(a) of that Convention requires “State Parties” to “declare an offence punishable by
law all dissemination of ideas based on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or incitement to such acts against any race or
group of person of another colour or ethnic origin …”.
52
These concepts have been developed under American First Amendment jurisprudence and are
summarized by Rodney A. Smolla, Smolla and Nimmer on Freedoms of Speech: A Treatise on
the First Amendment, (Matthew Bender & Co., Inc., 1994) at pp. 3-84 to 3-86 (headings and
footnotes omitted) as follows:
“The ‘neutrality principle’ embraces a cluster of precepts that require government to
avoid favouritism in the marketplace of ideas.
Mere opposition to an idea is never enough, standing alone, to justify the abridgment of
speech. ‘If there is a bedrock principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.’
Government may not ‘pick and choose’ among ideas but must always be ‘viewpoint
neutral’. Modern First Amendment cases establish a per se rule making the punishment of
speech flatly unconstitutional if the penalty is based on the offensiveness or the
undesirability of the viewpoint expressed. All ideas are created equal in the eyes of the
First Amendment—even those ideas that are universally condemned and run counter to
constitutional principles. ‘Under the First Amendment’, the Supreme Court has stated
‘there is no such thing as a false idea. However pernicious an opinion may seem, we
depend for its correction not on the consciences of judges and juries but on the
competition of other ideas. While the First Amendment as a whole is not absolute, the
prohibition against view point discrimination is a pocket of absolutism in which the
Supreme Court has tolerated no abridgements.”