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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, May 18, 2004 ::
    "Anti-gay speech" banned in Canada

    I've alluded to this already; here's a Fox news item about it. As far as I can tell, no prosecutions have been launched yet under this law, known as C-250, and conceivably the worst fears of Canada's religious conservative may be overblown. On the other hand, regional "human rights commissions" in Canada have already come down hard on persons found insufficiently enthusiastic for the gay cause (see infra).

    The following quotes are from World Magazine, May 8, 2004:

    The bill does state that a person won't be prosecuted for anti-gay speech "if, in good faith, he expressed ... an opinion based on a belief in a religious text." But at least one Saskatchewan court has already held that certain Bible passages expose homosexuals to hatred.

    Even without C-250, London, Ontario, officials recently slapped a Christian mayor with a $10,000 fine for refusing to proclaim "Gay Pride Day." A Christian businessman in Toronto was fined $5,000 for refusing to print materials for a gay-rights group.

    In light of C-250's passage, church-law analysts already are advising religious leaders on how to shield themselves. Attorney Bruce W. Long in a March issue of Church Law Bulletin wrote: "Churches and religious organizations may want to consider ... avoiding public criticisms of identifiable groups ... limiting opinions to private conversation, and if targeted or investigated, relying on the constitutional right to remain silent."

    Such self-censorship would normally send free-speech lawyers bounding into court. Of course, Canada isn't the U.S. and doesn't have our First Amendment and its relevant caselaw, such as Brandenburg (allowing direct prohibition of speech only when that speech causes a "clear and present danger" of physical harm to persons and property; downstream, speculative harms are not enough).

    Canada does, however, think of itself as part of the English Common Law tradition which has always respected (if less punctiliously than U.S. law) the right of free speech.

    I'll be following what happens under this law. The utter lack of interest in it among American academic free-speech scholars has been amazing -- or, on second thought, maybe quite predictable.

    :: David M. Wagner 9:12 PM [+] ::

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