Constitutional Treatment of Hate Speech and Freedom of Expression: a Canada – U.S. perspective

Abstract

The present article explores the constitutional treatment of hate speech in Canadian and American law vis-à-vis the paramount place freedom of expression occupies in both legal systems. The author first pronounces on the conceptional divergence of the freedom, opining that American free speech has retained much of its status as a preferred freedom given its unique historical fomenting process and predilection toward a quasi-absolutist interpretation of the First Amendment. Canada, however, has explicitly declined to institute a hierarchical approach of rights, thus effectively creating a level-playing field through an egalitarian-driven perception of rights when they are in collision. The argument continues by looking into major jurisprudential developments of hate speech in the two respective constitutional orders. Identifying one of the principal legal basis for Canadian courts to strike down constitutional challenges raised in hate speech cases to be strongly grounded in the communitarian understanding of the harm inflicted by hate speech, the observation hints at the distinctively Canadian legal attitude’s overture toward special group rights, multiculturalism, or grosso modo – the promotion of pluralism. The American courts, however, have been reluctant in suppressing speech activity by confiding in a set of extremely narrowly tailored tests to justify constitutional infringements of free speech.