Speak No Evil: The Triumph of Hate Speech Regulation by Jon Gould presents a timely analysis of the conten­tious debate on the limits of free speech on campus. Although the book deals with the free speech issue only at American universities, the cases examined will certainly re­sonate for Canadian academics.

Hate speech has recently become a topic of heated discu­s­sion in Canada. In particular, a debate has unfolded over whether or not governments, the law and society generally should limit, if not restrict, speech that may be considered demeaning to, or that incites hatred and violence against, individuals and/or groups on the basis of their ethnicity, sexual orientation, or religious beliefs.

A number of high-profile cases have come before the Human Rights Tribunal of Canada, as well as provincial human rights commissions, all of which have prompted some critics of the Canadian Human Rights Act (specifically section 13 which deals with hate messages) to declare that freedom of expression in this country is being sacrificed on the altar of political correctness and unbridled censorship. Section 13 stipulates that it is a “discriminatory practice for a person or a group of persons … to communicate telephonically … any matter that is likely to expose a person or persons to hatred or contempt.”

While the breadth of this definition is seen by many as a necessary way to stem the tide of hate speech, notably on the internet, and thus protect minorities, a growing cohort of detractors posits that section 13 fundamentally erodes Canadians’ freedom of expression as guaranteed by the Charter of Rights and Freedoms.

The chorus of opposition to section 13 led the Canadian Human Rights Commission to solicit an independent study into the efficacy of this law and how the commission deals with allegations of hate speech. Richard Moon, a law professor at the University of Windsor, conducted the study and released his report in November 2008.

One of his key recommendations is for section 13 to be repealed, effectively eliminating the involvement of the Ca­nadian Human Rights Commission and tribunal in hate speech cases. Instead, according to Moon, the prosecution of hate speech and the individuals and groups who articulate and distribute it, should be left to the Criminal Code provisions governing hate propaganda and the “wilful promotion of hatred.”

However, the Criminal Code has proven no more effective than the Human Rights Act in bringing hate mongers to justice and reducing the amount of hate speech in Canada. If section 13 is not repealed, then Moon suggests the Canadian Human Rights Commission be given exclusive jurisdiction to investigate any violations of this section. Moreover, the commission alone should argue any apparent violation of section 13 before the tribunal.

This change would remove the appearance that the tribunal has been taken hostage by a few over-zealous crusaders determined to stifle the free exchange of ideas and opinions in this country. Regardless of the future of section 13, or the part the tribunal plays in adjudicating alleged instances of hate speech, the controversy surrounding an individual’s right to free expression versus the need to protect minorities from hatred and/or violence, will certainly continue in a country as ethnically and culturally diverse as Canada.

Nowhere is debate on this issue more vociferous than within the halls of academe. It has been argued that a university campus, more so than any other milieu, should be a place where all views and beliefs are respected, or at least given unfettered expression. But some have charged that because of policies adopted by university administrations and student councils, free speech no longer exists at many of Canada’s colleges and universities.

The Globe and Mail has been at the forefront of these accusations. Commenting on a program adopted at Queen’s University called Intergroup Dialogue, wherein a student facilitator has been placed in each of the six campus residences to “foster amongst students … a spirit of mutual respect and understanding” by intervening in conversations that may be racist or homophobic in nature, the Globe labeled this a “Big Brother” tactic.

This process for fostering respect, says the Globe, “sounds like doublespeak for stamping out politically incorrect expression. Intergroup Dialogue can only cast a chill over open conversation” (Nov. 27, 2008).

The newspaper also denounced efforts by the student union at Lakehead University to restrict the activities of clubs. Specifically, club publications cannot contain content that may “be deemed offensive or in bad taste to any identifiable group” and club members should not “impose belief(s) or practice(s) of the club” without consent.

This policy, in the words of a Globe and Mail editorial, “is just the latest example of free speech sanctions imposed on students by students.” The paper noted the Lakehead policy was probably meant to target an anti-abortion group that had been attempting to gain club status.

Other institutions (Capilano, Carleton and York) have denied funding to anti-abortion groups. Such decisions — what the Globe describes as the “cotton-battening of thought and debate on campus,” — belie what the Globe believes should be the essence of a university, namely the unhindered articulation of thoughts and ideas. “A safe campus is not achieved by barring thoughts or speech that the majority of people disagree with, but in providing a safe venue to express and explore competing ideas and beliefs” (Dec. 8, 2008).

This contentious debate, along with the rise of hate speech codes and policies within several American universities, is the subject of Gould’s illuminating book. By 1992, nearly one-third of the colleges and universities in the United States had devised codes intended to limit, if not restrict, speech deemed to be hateful or bigoted. The hate speech movement on most campuses was said to possess a “totalitarian mindset,” but Gould’s fairly extensive research into the origins and usage of hate speech codes would appear to contradict this harsh characterization.

Gould conducted quantitative research on 100 schools across the U.S. that had created hate speech codes. In addition, he held in-depth interviews with senior university administrators and completed archival research at a select few institutions in order to examine more closely the reasons why certain institutions adopted their codes.

However, Gould had to alter the names of some of the institutions and faculty he interviewed to gain access to them and their records. And while this is a standard research practice for which Gould should not be faulted, it detracts somewhat from the book because, unless the reader is familiar with the episodes that gave rise to these policies on each campus, it is difficult to ascertain which institutions Gould examines in his case studies.

Gould contends that hate speech codes were created at most colleges and universities for two main reasons. First, they appeared as symbolic reactions to racist incidents which had occurred on campus. Second, institutions crafted these codes to match the efforts of other schools and to avoid the perception that they somehow condoned intolerance on campus.

What is interesting about Gould’s investigation is that in most cases the main architects of these codes were not activist students driven by a desire to instill a politically correct mantra throughout the academy, but university administrators. And most of them did not genuinely believe in the merits of hate speech codes. Indeed, as Gould concludes, most universities rarely enforced their hate speech codes out of fear of sparking further controversy and potential litigation.

Universities’ hate speech regulations confronted, if not challenged, two fundamental principles: freedom of speech and academic freedom. The First Amendment of the U.S. Constitution protects free speech, but this protection is not absolute. The Supreme Court has ruled restrictions may be placed on “fighting words” — those expressions likely to bring people to blows or which goad people to inflict violence upon others. But in keeping with Gould’s main argument about the symbolic nature of hate speech codes, only one per cent of those universities who adopted such codes restricted speech that could be considered to be “fighting words.”

Most policies banned generic verbal harassment, which included sexual harassment, or prohibited verbal harassment against specific groups. Similarly, very few of these codes contained provisions that punished students or faculty who wrote or uttered offensive speech. So in this sense, as Gould asserts, universities’ hate speech codes were not intended to challenge the courts or to change First Amendment norms.

Academic freedom, the cornerstone of universities and of intellectual discourse, was another apparent target of hate speech codes. For Gould, academic freedom presumes that expression “will be educationally appropriate” (p. 12) and if speech undermines or devalues a person’s education, then these regulations are the appropriate measures to deal with this speech. But here too, Gould argues that many universities were surprised when critics, notably faculty, declared that such restrictions eroded the sanctity of academic freedom because that was not their goal.

On this point Gould’s analysis is weakest. He needed to provide more examples of when and why hate speech codes were utilized and the response generated from faculty, students and the media. In this vein, Speak No Evil required a more thorough discussion of campus politics and the direct and indirect impact the student, civil rights and women’s liberation movements had on the adoption of hate speech and harassment policies in America’s institutions of higher learning.

Universities’ hate speech codes produced a backlash. This backlash originated in part from the fear that these policies were more than just academic exercises. Opponents charged that colleges and universities play a central and a decisive role in determining social policy and influencing future leaders. As such, if universities could successfully restrict free speech, then it may indeed become an acceptable practice for civil society.

The author highlights the fact that those who were opposed to these policies successfully framed the debate over their constitutional validity as a free speech issue and thereby secured a series of legal victories. Speak No Evil chronicles the legal challenges against hate speech codes that appeared before six different courts across the country between 1989 and 1995. Each court overturned the codes on the grounds that the rules were either too vague or too broad.

Gould believes the judges in these cases struck down these codes because — coming from an older generation that was out of touch with the advancements made in women’s and minorities’ rights — they took it upon themselves to strike a blow against the creeping power of political correctness. However, Gould provides little credible evidence to support this somewhat weak supposition.

Despite these legal setbacks not every university or college complied with the judicial decisions directing them to remove or revise their hate speech regulations. This was due, Gould maintains, to the schools’ general support for these policies and their relative immunity from the broader political environment. But neither of these reasons seem plausible. What a few colleges did do was rename existing hate speech codes, or labeled revised codes, as a “policy of inclusion” or a “policy of diversity.”

Ultimately, Gould concludes that hate speech restrictions have become the norm among many of society’s most important institutions, including universities and the media. Such restrictions and policies “set an expected standard of behavior on campus” (pp. 175–76) and they have helped to construct the belief that hate speech is undesirable and worthy of prohibition. And university administrations rarely need to enforce these policies because of the self-policing that occurs on most campuses.

What all of this has meant for American society is that the opposition to hate speech and the need to self-censor to avoid offending others, has created a new standard that, in Gould’s words, “has grown to challenge the formal Constitution.” (p. 187) But this may be a bit of an exaggeration on Gould’s part as racism, particularly against Muslims post 9/11, sexism and homophobia continue to exist, if not thrive, in universities and colleges throughout North America.

In this regard, the data and time period covered by Speak No Evil (1987­–1992), is, in today’s context, outdated. Gould has certainly written an important book that should be read by most, if not all, faculty and university administrators. But an analysis of more recent hate speech codes within North America’s “ivory towers” is needed in light of the increased racial tensions that have emerged since 9/11. What constitutes hate speech and “fighting words” in the eyes of the law, and society, has changed since the early 1990s.

Finally, a companion volume would be welcomed for Canada so that we can compare and contrast the approaches that colleges and universities in this country have taken to deal with hate speech on campus.

---------------------------------------------------------------
Michael Boudreau is an associate professor in the department of criminology & criminal justice at St. Thomas University, where he teaches a seminar on hate crime and hate speech.