Civil Litigation as Censorship

Posted September 1, 2016
By David Schneiderman

What do you do when uninvited guests crash your party and say really offensive things? Asking them to leave is one strategy. What if they arrive masked, disguising their true purposes, and your party is an annual parade through the streets of downtown Toronto? In the case of two plaintiffs in a class action lawsuit, you sue for $104 million in damages for tortious defamation, civil conspiracy and intentional infliction of mental distress. Free speech folks should be concerned about having recourse to such litigation techniques as a response to offensive speech.

The target of the suit is the small group ‘Christian Truth Activists’ led by William Whatcott. Having applied to participate in Toronto’s 2016 Pride Parade under the banner of the ‘Gay Zombies Cannabis Consumers Association,’ the group dressed up in head-to-toe neon-green body suits, tutus, and rainbow flags. They handed out approximately 3,000 flyers labeling homosexuality incompatible with human nature and accusing Prime Minister Trudeau, among other public figures, of ‘enabling and participating in child sexual abuse.’ According to the statement of claim, these ‘hate speech’ flyers reached approximately 9,000 people that day, at a parade that regularly attracts a couple of hundred thousand spectators. Whatcott did the same thing at Vancouver’s Pride Parade in 2014, representing himself and his group as the ‘Calgary Church of the Flying Spaghetti Monster.’

Whatcott is not unfamiliar with legal processes. He was found guilty of running afoul of the Saskatchewan Human Rights Code anti-hate provisions (s. 14[1]), having distributed flyers condemning the introduction of same-sex education in Saskatoon public schools and vilifying gay men. His conviction for distributing two of the flyers was upheld by the Supreme Court of Canada – the other two, sprinkled with references to biblical text, were not considered to be hate speech under the provincial Code. The difficulty, in this case as in others, is being able to distinguish between speech that rises to the level of ‘hate’ and that which is mere political invective. The Court has not typically expressed much interest in these problems – concerns we associate with overbreadth and ‘chilling effect.’ Justice Rothstein, for a unanimous Court, observed that the Code provisions were well tailored because of an exculpatory clause in s. 14(2), which declares: ‘Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.’ The Court was reassured by nothing more than this seemingly redundant declaration. It was sufficient to enable citizens and authorities to distinguish between ‘healthy and heated debate on controversial topics … and impassioned rhetoric which seeks to incite hatred as a means to effect reform’ (para. 111).

Whatcott is probably insolvent. He is reportedly living in someone else’s basement. If the class action suit is ‘certified,’ and allowed to proceed, there is little likelihood that claimant’s will collect $104 million. Instead, the suit looks more like a strategy for identifying supporters of Whatcott and his group. The claimant’s lawyer, Douglas Elliott, is quoted as saying ‘we want to find out who is paying for this. Who is writing the cheques?’ So it may be a matter of naming and then shaming whomever may be providing material support to the Christian Truth Activists.

The dangers to freedom of expression are self-evident. Defamation law has long been used as a tool to stifle speech that should freely circulate in the public domain. The tort of inflicting emotional distress for offensive speech also runs counter to a robust freedom of expression doctrine, as the US Supreme Court recognized in Jerry Falwell’s case against Hustler Magazine. The doctrine of conspiracy, according to Justice Douglas in Dennis v. United States (a case having to with the criminalization of Communist speech), ‘has served divers and oppressive purposes and its broad reach can be made to do great evil.’ This is not to dignify Whatcott’s speech as valuable. It is both hateful and unpleasant. Nor is it humourous (though ‘Gay Zombies Cannabis Consumers Association’ is creative). Whatcott clearly is obsessed with gay sex. But it is an obsession for which speakers should not be punished, civilly or criminally.

Proceeding against this group for having crashed one of Toronto’s biggest parties seems like overkill. Whatcott is part of a fringe group with a total of 374 online members. At the time of writing, there are 32 folks willing to offer financial support for his legal defence. All the civil suit will do is to grant Whatcott and his ‘spaghetti monsters’ more undeserving publicity. Whatcott has indicated to the Toronto Star that he will offer a vigorous defence: ‘Oh yeah, now that I have a captive audience, I’ll definitely be there in court.’

Of more concern than publicity to a fringe group are the dangers posed by such litigation to freedom of expression. If there are grounds for a damages claim under the law of contract, the plaintiffs can seek that remedy, not a class action suit seeking to enjoin the distribution of pamphlets. And if there is a worry that groups with hateful viewpoints will participate next year, then Pride Toronto should take greater care about whom they invite to march with them.