Gormley tweet could be defensible, says hate speech lawyer

A tweet by Saskatchewan talk-radio host John Gormley is being accused of inciting hatred and violence against Muslims. However, David Butt, a Toronto criminal lawyer who has dealt with hate speech cases, says charges of hate crime are rare, and this case has a possible defence.

Criminal lawyer David Butt has worked extensively on hate laws and freedom of expression

The Criminal Trial Lawyers Association and the Criminal Defence Lawyers Association are speaking out about the impending cancellation of a rehabilitation program for sex offenders. (Supplied)

A tweet by Saskatchewan talk radio host John Gormley is being accused of inciting hatred and violence against Muslims.

However, David Butt, a Toronto criminal lawyer who has dealt with hate speech cases, said charges of hate crime are rare, and this case Gormley has a possible defence. He is not representing John Gormley.

Shortly after the Paris attacks, Saskatoon radio host John Gormley tweeted the following:

Radio host John Gormley has since deleted this tweet and apologized on air for his comments. (Twitter)

He deleted the tweet shortly after and has twice apologized on his radio show. 

Butt outlined some of the basic criteria for something to be considered hate speech.

  • The hate speech must be targeted to an identifiable group.
  • It must be public.
  • It must be deliberate, not careless.
  • The statements must be hateful when considered in their social and historical context.

Butt said Gormley's tweet does have some elements that might support a prosecution because it includes statements made about an identifiable group. But he said there are countervailing facts involved.

It's possible to read the entire context of that tweet as actually a statement against those kinds of angry reactions.- David Butt, criminal lawyer

"It's a defense to argue that you are in good faith attempting to express an argument on a religious topic," Butt said. 

"One can see here the seeds of a debate about the extent to which certain radical elements are actually distorting the tenets of the Muslim faith for terrorist ends. So to the extent that you can see that argument it would be a defence."

He added there is another potentially relevent defence that emerges when one reads the entire tweet. 

"We have a conversation going on in that tweet. Not just an assertion. We have the putative author making a statement and a putative response condemning him for making that statement. It's possible to read the entire context of that tweet as actually a statement against those kinds of angry reactions."

He said if is interpreted that way, then it's not hate speech.

Butt said that successful convictions of hate speech are rare. In 2009, David Ahenakew, a former senator with the Federation of Saskatchewan Indian Nations, was found not guilty of willfully promoting hatred against Jewish people.

Law strikes the right balance

Butt noted that an individual's public profile and the size of audience they speak to could have an influence on a potential charge under hate laws.

"The purpose of having this hate speech law in place is to prevent hateful ideas from gathering social tracking. So if someone is abusing their public platform to propagate hate that may tend to increase the likelihood that the prosecutors would proceed with a case against them."

Butt believes the law strikes the right balance between freedom of expression and protecting groups from hatred. 

He added that beyond the hate laws, society has a role in stopping hate speech. 

"It's our collective responsibility not to rely on prosecution but rather to counter hate speech with compassionate speech, with thoughtful arguments that expose the haters for what they are."

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