Once again, the Toronto Public Library is under attack for upholding intellectual freedom. Some who find Feminist Current’s founder Meghan Murphy’s views offensive are demanding that the TPL abandon its principled commitment to intellectual freedom by withdrawing the space at a branch library it has rented to sponsors of Murphy’s upcoming talk on "Gender Identity: What does It Mean for Society, the Law and Women?"
I am among those who find Murphy’s views offensive. But, then, I must confess I find many people’s views troubling and offensive these days. The question is, in a democratic society, whether anyone’s offense at someone else’s expression gives the right to prevent others from hearing it in a public place. The answer is “No.”
Democracy depends on the freedom of everyone in society to participate in an ongoing public conversation about what is legitimate and what is illegitimate. Our Charter of Rights and Freedoms protects that right of freedom of expression (which includes both the right to speak and the right to hear) as one of Canada’s “fundamental freedoms.”
Critics of Murphy make several arguments, but they all rest on the claim that free expression rights conflict with equality, and, in such situations, equality should prevail. Murphy’s critics are right that we live in a transphobic society in which transgendered people are marginalized. But censoring offensive expression, attractive as it may seem, is not a road to equality or an end to marginalization, nor does censorship ever lead to equality.
If we authorize censorship by the state and public bodies in the name of equality -- to protect marginalized minorities -- we have a problem involving who decides what expression to suppress. In a democratic society, the state acts in the name of the majority, not the minority. Why would any marginalized minority trust representatives of the majority to determine whose expression is to be allowed and whose is to be censored? It is our constitutional right to freedom of expression that protects marginalized minorities’ rights to challenge the inequality and discrimination they face at the hands of the majority.
Free expression rights by themselves are no assurance that equality will prevail. As the great African-American social activist Frederick Douglass rightly observed more than 150 years ago, “Power concedes nothing without a demand. It never did and it never will.” But free expression rights protect the marginalized minorities making those demands for social change and challenging authority. Abandoning protection for free expression undermines one of the bases for the possibility of social justice.
Liu Xiaobo, one of the twentieth century’s great human rights champions who died two years ago in a Chinese jail, put it straightforwardly: “Free expression is the base of human rights, the root of human nature and the mother of truth. To kill free speech is to insult human rights, to stifle human nature and to suppress truth.”
Public libraries are one of the truly free public spaces left in our increasingly neoliberal, privatized society. A central tenet of our public libraries is that they have a core responsibility to support, defend and promote the universal principles of intellectual freedom and privacy – affirming that all persons in Canada have a fundamental right, subject only to the Constitution and the law, to have access to the full range of knowledge, imagination, ideas, and opinion, and to express their thoughts publicly. As a critical part of this “core responsibility”, libraries make their facilities available to all members of the public provided the events are conducted in a manner consistent with the library’s code of conduct and that no illegal behaviour takes place.
So, the only question for the TPL in relation to Meghan Murphy’s upcoming talk is whether Murphy will engage in illegal behaviour – more precisely in illegal expression. Many of Murphy’s critics claim that her views constitute hate speech, thereby justifying the TPL cancelling the event. Although the critics are right that her views are hateful to many, hateful expression must reach a very high bar before it is considered illegal “hate speech” in Canada. Chief Justice Brian Dickson in Keegstra has described that bar:
..in my opinion the term "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:
Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies…
Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation."
In the most recent Supreme Court hate speech case [Whatcott,2013], Mr. Justice Rothstein wrote on behalf of a unanimous court,
…courts … have generally identified only extreme and egregious examples of delegitimizing expression as hate speech. This approach excludes merely offensive or hurtful expression from the ambit of the provision…”
Earlier this year, Murphy’s talk in rented space at the Vancouver Public Library was preceded by demands that the library cancel the event. The VPL, respecting its commitment to intellectual freedom, refused, and the event went ahead. Afterwards, there was no indication that Murphy had crossed the line into illegal hate speech.
Unless critics can provide compelling evidence that Murphy’s talk at the Toronto Public Library will break Canada’s hate speech laws, it is vital that the TPL uphold public libraries’ commitment to the protection of intellectual freedom and refuse to cancel the event. To do otherwise may be popular with critics but will undermine one of the foundations for achieving social justice in Canada – freedom of expression.