Vol. 15 No.4 (April 2005), pp.289-294

THE HATEFUL AND THE OBSCENE: STUDIES IN THE LIMITS OF FREE EXPRESSION, by L.W. Sumner.  Toronto: University of Toronto Press, 2004.  275pp.  Cloth $60.00 / £40.00.  ISBN: 0802042392.  Paper. $29.95 / £20.00.  ISBN:  0802080839.

Reviewed by Troy Riddell, Department of Political Science, University of Guelph.  Email: riddell@uoguelph.ca .

In his book, THE HATEFUL AND THE OBSCENE: STUDIES IN THE LIMITS OF FREE EXPRESSION, L.W. Sumner sets out to construct a theory of free expression and explain its ramifications for policy-making (whether legislative or judicial).  Although there are some comparative references to the U.S., Sumner’s analysis focuses on Canadian law and jurisprudence involving pornography, child pornography, and hate speech.

Sumner argues that Mill’s utilitarian-based framework allows for the coercive interference with free expression only if two conditions are satisfied: the harm principle (“the expression in question must cause harm to others”) and the consequentialist principle (“interference with the expression must yield a better balance of benefits over costs than non-interference”) (p.33).  According to Sumner, the former principle excludes censorship that is designed to protect against moral corruption, degradation, or offence.  The latter principle is context specific, requiring that a policy restricting expression must have a reasonable chance of success, that less intrusive means must not be available to prevent social harm, and that the overall benefits of the policy must outweigh the harm.  Given the importance that Mill places on the importance of free speech both for the individual and for democratic societies as a whole, it is difficult for governments to justify restrictions on expressive content.  Sumner’s careful reading of Mill, though, leads him to conclude that time, place and manner restrictions and restrictions against inciting harmful acts could be justified more easily.

Sumner finds parallels between Mill’s framework and the Supreme Court of Canada’s (SCC) operationalization of the Section 1 “reasonable limits” clause of the Charter of Rights and Freedoms in the OAKES (1986) case.   The “OAKES test” requires that once a Charter right has been found to have been infringed, the government can justify that infringement under Section 1 only if it can demonstrate that: 1) there is a pressing and substantial objective and 2) the means are proportional to the object (a) the means are rationally connected to the objective, b) the means impair the right as little as possible, and c) the costs of the limitation do not exceed the benefits of achieving the objective.  The Court has emphasized that the OAKES test is not a mechanical exercise, but one that attempts to balance the interests at stake within a given context.

The core of Chapter Three is devoted to explaining the SCC’s methodology in trying to balance the interests of liberty and equality in KEEGSTRA (1990), [*290] which involved a challenge to the hate speech provisions in the Criminal Code.  All seven judges found that restrictions on hate speech violated the right to free expression in the Charter.  Under the OAKES test, all agreed that the law had a “pressing and substantial” objective in trying to protect the equality of minority groups, but three judges argued that the law failed the proportionality test because it was overbroad and actually might have the perverse effect of turning hate propagandists into martyrs.  Chief Justice Dickson, writing for the majority of four judges, argued that the law was important for upholding values of equality and that the law was well-tailored.

Sumner uses the KEEGSTRA decision as a springboard to discuss a series of related issues and questions.  He questions why some judges are reluctant to devote much time to the last part of the OAKES test (the cost-benefit analysis), and he argues, contrary to some Canadian legal commentators, that the cost-benefit step is not redundant (p.66).   Moreover, Sumner maintains that courts should demand clear evidence that the law is preventing actual harm to individuals or groups and that the benefits outweigh the costs.  He argues that the SCC has been too deferential to the government’s evidence in some cases.  Finally, Sumner compares Canadian free speech jurisprudence to that of the US (pp.70-77).  He argues that, although the SCC has at times indicated that some types of expression generally warrant greater protection than others, for the most part the SCC has viewed rights as instrumental and used consequentialist and contextual decision-making using the OAKES test to determine, on a case by case basis, whether the benefits of limiting speech rights outweigh the costs; in contrast, the US Supreme Court (USSC) has created rather strict doctrinal rules based on a theory that free speech rights are constitutive of a liberal democratic regime (though Sumner recognizes that some of the definitional limits imposed on free speech by the USSC may be the result of some sort of quasi-consequentialist reasoning that tries to balance interests).  He contrasts the outcome in KEEGSTRA with that of R.A.V. v. ST. PAUL (1992) in which the USSC overturned the hate speech law at issue.  According to Sumner, although differences in political culture between the countries cannot be ignored, the differences in modes of analysis between the Canadian and American courts might help explain why the SCC has tended to be more deferential to government restrictions on free speech than has the USSC.

Sumner’s discussion is an informative and useful one, but students of judicial politics will find it somewhat lacking.  For instance, Sumner needs a more subtle definition of “deference.”   Sumner uses both BUTLER (1992) (upholding the pornography law) and SHARPE (2001) (upholding the child pornography law) as examples of the SCC being deferential to Parliament, but in both cases the Court transformed the laws while upholding them.  This leads one to question whether the SCC is indeed as deferential compared to the USSC as Sumner would have us believe.  Even if one does accept that claim, Sumner does not consider alternative explanations for it (or even for differences between or within decisions of the same Court).  Sumner [*291] acknowledges that some of the SCC’s decisions were very close, such as KEEGSTRA (4-3, upholding hate speech laws) and ZUNDEL (4-3, striking down a law against spreading false news), but he does not discuss how the attitudes of individual judges might make as much or more of a difference to outcomes as either political culture or the different modes of analysis between the courts.  For instance, although Justice Clarence Thomas has been criticized for “failing to reflect the experiences of minorities in his decisions,” his strong concurrence in upholding the constitutionality of Virginia’s anti-crossing burning statute in VIRGINIA v. BLACK (2003) reflects an opinion “written from the perspective of a member of a racial group that has long been the target of hatred” (Epstein and Walker, 2004: 285).    Nor does Sumner provide adequate discussion about whether courts have the institutional capacity to balance interests or what could be done to improve this capacity.

Chapters Four and Five concentrate primarily on the issue of pornography, though Chapter Five “In Harm’s Way?” also includes a discussion about whether there is an empirical link between hate speech and harm to minorities.  Sumner deftly takes the reader through the convoluted history of law and jurisprudence on pornography in Canada and then explains how the SCC in BUTLER (1992) synthesized three tests that existed for determining whether material unduly exploited sex as prohibited by the Criminal Code, while upholding the law under the OAKES test.  According to the Court, the objective of the law should not be to enforce morality, but to prevent the harm that would accrue from material predisposing people to act in an anti-social manner “as, for example, the physical or mental mistreatment of women by men.”  On the basis of lower court decisions rather than any evidentiary evidence of community standards, Justice Sopinka argued that explicit sex with violence will almost always be considered obscene; explicit sex without violence, but that is degrading or dehumanizing will be considered obscene if the risk of harm is substantial; and that explicit sex that is neither degrading nor dehumanizing will not be obscene unless children are involved (p.117).  Whether the material possessed any artistic, literary or other legitimate purpose would also be determined in the context of community toleration.  The difficulties associated with the community standards test are delineated by Sumner, including determining such standards in a large and diverse country like Canada.  Sumner also points out that the vagaries of the obscenity definition led some judges to declare gay porn as obscene.

Setting aside practical considerations, Sumner reminds us that Mill’s philosophical framework also requires evidence of harm.   He first addresses the question of harm and pornography.  He concedes that it would be “foolhardy—and almost certainly false” to claim that no woman has ever been mistreated in the making of pornography, but he argues that formal and informal industry rules in Canada and the US largely prevent participant harms (pp.129-131).  As for whether pornography indirectly causes harm to women, Sumner’s thoughtful recitation of the methodologies and findings of various social science studies leads him [*292] to conclude that the research is rather inconclusive but tends not to suggest that there is a significant causal relationship between sexual depictions in pornography and mistreatment of women by men (though there may be a relationship between depictions of violence against women and male behaviour towards women).  Sumner also maintains that there is little empirical evidence to support the claim that pornography is created through coercion resulting from social and economic inequality of women, because women in the industry come from diverse family and socio-economic backgrounds (p.142).  Moreover, Sumner illustrates that feminists who argue that “participating in pornography is degrading and, since nobody wants to be degraded, women who participate in pornography are therefore coerced” implicitly or explicitly adopt moralistic reasoning through a circular argument that is not open to empirical refutation (p.145).

Sumner spends less time discussing the possible links between hate speech and harm and child pornography and harm.  Moral distress, according to Sumner, cannot be used to restrict hate speech within Mill’s framework, but he refers to social-psychology research to show that hate propaganda may contribute to the social inequality of minorities such as Jews, blacks and gays by perpetuating and reinforcing discriminatory attitudes that are implanted in minority communities and the minds of even well-meaning members of the dominant group (p.161).  He notes, however, that such research cannot ever definitively trace the causal impact of hate speech on minority inequality.  In addition to pointing out this general methodological difficulty, it would have been helpful for Sumner to discuss how to distinguish between “moral distress” and “psychological stress.”

Sumner argues that there is a clearer link between harm and hate expression that is violent or expression that implies or openly advocates violence towards minorities.  Organized hate groups use hate propaganda to recruit new members, and there have been a number of documented cases where the perpetrators of hate violence have been members of hate groups (pp.162-163).  Similarly, Sumner argues that there are documented cases of pedophiles using child pornography to recruit more children.   Since children are also harmed in the production of child pornography, Sumner concludes that some linkages between child pornography and harm to children are relatively clear (pp.156-157).

This all leads to the book’s final chapter in which Sumner takes us “From Principle to Policy.”  The chapter concludes with a summary of four key recommendations: “(1) A slimmed down child pornography law: the possession offence retained within the context of a narrower definition of child pornography; (2) No (further) content restrictions: no criminal or human rights legislation prohibiting expressive materials on the basis of obscene or hateful content. [In relation to pornography, Sumner argued that the focus on sexuality is misplaced and more attention should be given to misogynist material that incites hatred toward women (p.193)]; (3) More use of context restrictions [such as time, place and manner restrictions]: in particular, an expanded criminal prohibitions of [*293] expressive materials inciting hate violence; (4) No prior restraint: no censorship of expressive materials by Customs officials, film boards or other bureaucracies” (p.202).

Of course not all will agree with these prescriptions, even if one does buy into the underlying philosophical premise on which they are based.  In particular, some may agree with the concurring opinion in SHARPE by the SCC that a slimmed down child pornography law could lead to significant harms that are not worth the liberty afforded to child pornographers.  Nevertheless, Sumner deserves considerable credit for carefully constructing a theory of free expression based on Mill’s framework and then creating concrete policy advice on that basis.

Paradoxically, though, the straightforward analytical progression of the book is also a weakness.  Nowhere does Sumner meaningfully demonstrate the superiority of Mill’s framework to other philosophical theories or propositions that might generate different conclusions.   How, for example, would Sumner respond to Christopher Manfredi’s argument that limits on free expression can be useful in cultivating a certain minimal level of virtue in citizens required for a liberal democracy?  (To support his argument Manfredi even invokes Mill’s observation that “the qualities of the human beings composing the society over which the government is exercised” is directly related to the quality of that government (pp.67-68)).   Sumner does compare briefly Mill’s “foundational” approach to more “free standing” justifications for liberalism grounded in the requirement of ‘overlapping consensus’ amongst political groups in a society.  He argues that it is possible to bring Mill’s framework somewhat closer to the free-standing approaches by accepting some aspects of Mill’s utilitarian principles, such as instrumentalism and consequentialism, while rejecting others, such as aggegregation or welfarism.   However, this argument is not well developed, and one is left with the suspicion that it might not be so easy to pick and choose amongst Mill’s utilitarian principles.  For example, Sumner argues that one can reject welfarism by acknowledging a plurality of independent and equally basic values; yet, given that the harm principle rejects various morality-based values it is not immediately apparent what kind or how many basic values could be left in play.

A more fully developed discussion of Mill’s philosophy and how it compares with some other philosophical propositions would have been particularly useful to someone such as me who is more familiar with the judicial and policy issues discussed in the book.  As noted above, this familiarity with judicial politics made me wish that Sumner would have offered slightly more nuanced observations and arguments when talking about the courts.  Sumner could have bolstered both the philosophical and judicial elements of the book while basically maintaining its rather nice and accessible length by dropping material in various parts of the book that is rather superfluous.  Many of the concepts discussed in Chapter One, especially the “anatomy of rights,” seem largely forgotten in the rest of the book.  Elsewhere, it takes two pages of arcane discussion for Sumner to make the basic point that the interests at stake in the [*294] KEEGSTRA hate speech case were liberty and equality.

I think also that parts of the book could have been organized in a slightly more logical manner, but this is a quibble.  Sumner thoughtfully executed what he set out to do: create a theory of free expression that could be applied to certain controversial policy areas.  Those who would argue for content restrictions (rather than context restrictions) on hateful or obscene material will be forced to grapple with this powerful book.

REFERENCES:

Epstein, Lee and Thomas G. Walker.  2004.  CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS, LIBERTIES AND JUSTICE.  Washington, D.C.: Congressional Law Quarterly.

Manfredi, Christopher P.  2001.  JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL CONSTITUTIONALISM (2nd ed.).  Don Mills, ON: Oxford University Press.

CASE REFERENCES:

R v. BUTLER, [1992] 1 SCR 452.

R v. KEEGSTRA, [1990] 3 SCR 697.

R v. OAKES, [1986] 1 SCR 103.

R.A.V. v. ST. PAUL, 505 US 377 (1992).

R v. SHARPE, [2001] 1 SCR 45.

VIRGINIA v. BLACK, 538 US 343 (2003).

R v. ZUNDEL, [1992] 2 SCR 731.

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© Copyright 2005 by the author, Troy Riddell.