The right to react to harmful speech

In Hansman v. Neufeld, the Supreme Court of Canada ruled last week that a defamation lawsuit related to a controversial school policy is subject to legislation in British Columbia against strategic lawsuits against public participation (SLAPPs). Some intervenors consider the decision a victory for counter-speech.

The lawsuit centered around critical remarks made by Barry Neufeld, a public school board trustee, about an education policy to foster inclusion and respect for students who may face discrimination in school because of their gender identity or expression. Glen Hansman, a gay man, teacher and former president of the B.C. Teachers' Federation, responded by labeling Neufeld's views as bigoted, transphobic, and hateful. Hansman also accused Neufeld of undermining the safety and inclusivity of transgender and other 2SLGBTQ+ students in schools and questioned his suitability for elected office.

In response, Neufeld filed a defamation lawsuit initially dismissed by the chambers judge under the province's anti-SLAPP legislation. The Court of Appeal overturned the ruling and reinstated the action, until the Supreme Court of Canada granted the appeal on a 6-1 majority.

"Mr. Hansman's words were not a disproportionate or gratuitous response to Mr. Neufeld's statements, and there is a substantial public interest in protecting his counter-speech," Justice Andromache Karakatsanis wrote for the majority. "Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity. Not only does protecting Mr. Hansman's expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value."

CBA President Steeves Bujold responded favourably to the decision, highlighting the court's recognition that the transgender community is a marginalized group in Canadian society.

"As a proud member of the LGBTQ2S+ community, it has always been important for me to address the inequalities and discrimination experienced by the members of my community and more specifically by non-binary and trans people in Canada," Bujold wrote in a statement. "This interpretation of anti-SLAPP legislation is an important step as we strive to defend and protect the rights of everyone in our society, especially the most disadvantaged people with the greatest need."

Adam Goldenberg, a partner with McCarthy Tétrault LLP in Toronto, who represented intervenor EGALE Canada, says that the decision will be helpful in future cases in which those who speak up in defence of the dignity and equality of 2SLGBTQ+ people are silenced by those who would espouse contrary views.

"The Supreme Court recognized correctly that counter-speech, as it describes it, is an important corrective to the kind of invective that 2SLGBTQ+ and especially trans individuals have to contend with on a regular basis," Goldenberg says. "While the Court didn't take note of this expressly, it's important to create space for such counter-speech and to protect it under anti-SLAPP legislating at a time when we see increasing anti-2SLGBTQ+ sentiment, not just in countries like the United States, but also in Canada."

Goldenberg says recognizing trans people's marginalization will contribute to developing jurisprudence surrounding anti-SLAPP legislation and defamation law, ultimately bolstering the defense of protective counter-speech in the future.

"Counter-speech is a distinct genre of speech, and it has a particular role in protecting and upholding the dignity and equality of 2SLGBTQ+ people," Goldenberg says. "That was not something that the Supreme Court had recognized before. There was a long line of jurisprudence that recognizes counter-speech in the First Amendment context, in large measure as the answer to those who would use the power of the state to censor impolitic or offensive views."

Goldenberg notes that the classical liberal response to that state power is to offer more speech as an antidote to offensive speech—in this case, "to push back against anti-queer rhetoric.

Goldenberg further emphasizes that, as a political candidate, Neufeld attempting to silence a vocal critic with a defamation lawsuit goes against the purpose of anti-SLAPP legislation. Moreover, the defendant strongly advocated for the dignity and equality of trans youth. This only amplified the public's interest in safeguarding Hansman's freedom of expression, aligning it with the criteria set forth by anti-SLAPP legislation in British Columbia and Ontario.

In her dissent, Suzanne Côté disagreed with the majority's analysis, arguing that it was too early to dismiss the defamation action.

"[T]he question in this appeal is not whether this Court agrees with Mr. Neufeld’s expression, or with Mr. Hansman’s counter‑speech for that matter," Justice Côté wrote. "The question is merely whether Mr. Neufeld’s action should be dismissed at this early stage of the proceeding. Unlike my colleague, I conclude that it should not. In doing so, I am in no way prejudging the merits of Mr. Neufeld’s action in defamation; I am strictly finding that he deserves to have his day in court."

According to Florence Ashley, an incoming law professor at the University of Alberta, the decision is significant as one of the first major rulings to cite trans legal scholars.

"It's important for trans communities to feel seen by the legal system, given how poorly trans folks have felt like they were treated in the legal system," Ashley says. 

Ashley says the decision holds broader significance for all marginalized groups. It provides clarity by establishing that criticism of bigotry is typically an expression of opinion rather than a factual statement. This distinction is crucial because labeling terms such as racism, homophobia, and transphobia as statements of fact would severely hinder the ability of marginalized communities to combat oppression and openly challenge it.

Ashley also emphasizes the decision stating unambiguously that speech that fosters hostility to marginalized groups is less valuable. 

Justin Safayeni, a partner at Stockwoods LLP in Toronto, who acted for the Centre for Free Expression in this case but speaking personally, says that the decision overturns the BCCA on a key point about public interest analysis. It clarifies that the concern about the "chilling effect" on free expression can only ever weigh in favour of dismissing a case. 

"The BCCA had turned the concept on its head by reasoning that if the lawsuit were dismissed, this would discourage people from engaging in controversial speech to begin with, since they would be unable to defend themselves against defamatory counter-speech, and so the chilling effect actually supports allowing the lawsuit to proceed in this case," Safayeni says. "The Supreme Court was clear that this isn't the concern the chilling effect was meant to address. Instead, the chilling effect reflects the concern that the threat of litigation would cause speakers to silence themselves from commenting on matters of public interest."

There are concerns, however, that the decision has revealed the extent to which defamation law is outdated, especially regarding online platforms.

"The discourse around reputation gives off very Victorian vibes and is deployed in a way that comes uncomfortably close to this idea of having a right to have others like you, which is quite antithetical to liberal philosophy," Ashley says. "Sometimes ostracism is both a normal and appropriate reaction to offensive or harmful speech."

In the internet era, everyone has a platform, speech is cheap and there is little nuance, they say. People's expectations regarding speech are very different from those that apply to journalistic publications, which historically have played a central role in defamation law.

"Imposing the norms and expectations that we have of journalistic publications onto social media would make it impossible to have political speech or social justice speech on social media because it's so much more interactive," says Ashley, noting nevertheless that the court showed some flexibility in interpreting and applying the fact requirement.