It should be clear by now that, at least with reference to section 319, there is an absence of certainty as to what type of expression is or is not allowed and no clear path to "regulating conduct" for an individual to clearly comply with whatever might be its intention. Indeed there is a decided chill cast over any type of expression anywhere other than perhaps singing an anodyne pop song in the shower. As to predictability of the behaviour of officials (the state): the latitude and vagueness of the wording and the vesting in the state of the power of arbitrary prosecution and arbitrary selection of protected groups, and subjective interpretations as to what constitutes "hate speech" leaves one reeling as to the potential abuses of unchecked state power.
This irreconcilable contradiction between the legal certainty principle on one hand and the inherent conceptual vagueness of "hate speech" on the other, in combination with the weightiness of the fundamental human right of freedom of expression obviates hate speech laws' much weaker justification based on faith that they will promote peaceful social harmony. The opposite may in fact be the case.
The Constitution of the United States : Amendment I [1791] reads :
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The U.S. constitution starts from a foundationally stronger position than that of the Canadian Charter of Rights and Freedoms. The unambiguous intent of this amendment should be clear: free speech is sacrosanct and no law is allowed that will in any way restrict (abridge) this fundamental right.
The Canadian Charter of Rights and Freedoms grants free speech with two provisos, the section 1 "reasonable limits" exception and the more problematic section 33 override. The state need give no reasons, justifications or explanations to the people when invoking section 33.
Notwithstanding the in principle unassailability of free speech in the U.S., it has been assailed due to a flawed interpretation of the notion of "hate speech" combined with an apparent lack of respect for the fundamental right to free expression.
An example of hate speech law run amuck pertains to the Boycott, Divestment and Sanctions movement (BDS) which is a political movement critical of what it documents as anti-human rights policies and actions of the Israeli government.
On January 15, 2020, South Dakota became the 28th US state to enact an anti-BDS law by executive order or legislation. In July 2019, the U.S. House of Representatives passed a bipartisan resolution denouncing the BDS movement as "an effort to delegitimize Israel, of course." Of course, it is not an effort to delegitimize the state of Israel, but rather it is an effort to delegitimize abuses of human rights inflicted by the Israeli government. It is as though some powerful lobby were affecting the mental processes of these politicians.
Many countries in addition to the U.S. have conflated BDS legitimate political advocacy with anti semitic "hate speech" and made formal executive condemnations, passed laws of economic terrorism against its own citizens' businesses as well as enacted laws that would enable criminal prosecution of such advocacy:
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