"Taking on anti-Semites and Holocaust
deniers in the sanctified courtroom environment
is like responding to someone who calls your mother a prostitute. By defending
you raise the question that maybe she really was"
Anonymous
source drawn
from Weiman
and Win, 1986.
The right to freedom of expression can be
described as a war. It is a war that has
lasted for centuries and may last for centuries more. It is a war between freedom of expression and
social intolerance. In this war there
are many battles. The battle on which
this brief essay centers itself is the battle between freedom of speech and
laws limiting that freedom; more specifically the ability to spread hate
propaganda and the "hate laws".
Included in the essay is a brief outline of one skirmish that has taken
place (Keegstra ).
Those who fight on
the side supporting freedom of speech do so for several reasons. Braun declares that it is a basic democratic
right to voice your own opinion .
Douglas Christie has gained notoriety for his vigorous representation of
high-profile, controversial clients, charged under the hate laws. He advocates freedom of speech for two main
reasons: a) he finds it abhorrent that the state can legislate thoughts and
words, and b) he often agrees with the views held by his clients. Others such
as Noam Chomsky, a brilliant intellectual, argue not for the views expressed,
but the ability to express them. Lining
up on the other side of the battle you have: Derek Raymaker, David Kilgour,
Victor Ramraj, and Bruce Elman. They
argue that there is definitely a moral place for laws regarding hate speech,
whether they are criminal or not. There
was recently a new development in the Canadian war for freedom of expression. Introduced in April 1982 was a new and
important strategic battleground.
With the Charter of Rights and Freedoms the war
could be won or lost by either side. It
was not long before the Charter saw battle.
In 1984, Jim Keegstra was charged with
violating section 281 of the Criminal Code of Canada (now covered under section
318-320). Keegstra was a respected school teacher and mayor of the small town
of Eckville, Alberta. This was no
borderline fanatic; this was an elected official charged with promoting
hate. However by the time Keegstra's
trial rolled around he was no longer the mayor Eckville and his teaching
license, revoked. The problem was, the
very nature of s. 281 lent itself to legal debate under section 2 of the
relatively new Charter of Rights and Freedoms.
The defense counsel Doug Christie lost no time in challenging the
legislation's constitutionality. In
response, Crown prosecutor, Bruce
Fraser, stated that Keegstra was being charged with promoting hatred; not
expressing it. The Crown also stated
that freedom of speech is not an absolute right . On November 5, 1984, Mr. Justice Quigley of
the Alberta Queen's Bench wrote an eighty page decision upholding the
constitutionality of section 281. In his
decision he stated "It is my
opinion that s. 281.2(2) cannot be rationally considered to be an infringement
which limits 'freedom of expression' but on the contrary it is a safeguard
which promotes it."
When the issue finally rose to the Supreme
Court of Canada, the advocates of hate laws had won a very shallow
victory. The split of the court was 4-3,
leaving uncertainty as to who had actually won.
It is too subjective to view the problem of
freedom of expression as "good" versus "evil". The debate raises the main issue of whether
or not the people of Canada want the government to be passing any laws limiting
our rights to think and speak. While it
is nearly unanimous that violently acting on these views is illegal; the debate
on laws against speech of any sort draws not only racists, but simple liberals
who believe in the freedom of speech.
Braun outlines the argument against any
criminal limitations on freedom of speech.
First, he states that one of the basic premises of democracy is that:
"A self-governing people that have the right and ability to decide for
themselves whom to believe must surely have the right and ability to decide
what to act on." Another point
made by Braun, in the same article, is that the right to legislate against
words, even narrowly defined such as words of 'incitement' "tends to erode
the political process of talking and genuine debate." Other such arguments rise up against the
legitimacy of such hate laws.
Douglas Christie, in Zundel, declared that the
right to a minority opinion was at stake.
In his address to the jury he asked "What are we lobotomized
idiots, that we can only accept the viewpoint of the majority? ... Do we never
entrench the right to differ?"
Christie also compared Zundel to Galileo, who dared to pronounce that
the world was round. He also stated:
"For the sake of freedom, I ask you never
to forget what is at stake here. That accused stands in the place of anyone who
desire to speak their mind. Even if you don't agree with him, you must take it as
a sacred responsibility not to allow the suppression
of someone else's honest opinion."
Chomsky takes much the same road. Respected the world over is not necessarily
Chomsky's views, but his ability to express them and his understanding of the
problems society faces. In a 1988
interview Chomsky stated "...I wouldn't like the government to have the
power to decide what you can hear."
With respect to a French school teacher being tried for falsification of
history he said,
".... Now that means that the state has
the right to decide what is historical truth, and
if it decides "this is historical truth" and you say something else,
you're a criminal. In my view, that's a fantastic scandal, I
don't care whether what the guy said
is true, false, indifferent; I don't even give a damn what he said. The idea of giving
the state the right to decide what's true, that's just straight, flat-out fascism."
Those who advocate the passing of "hate
laws" such as sections 318 through 320 of the Criminal Code, also seem to
be arguing from a largely moralistic standpoint. They also state that it is extremely
difficult for the Crown to convict under the laws. Admittedly, yes it is, and that is the way it
should be. Four proponents of these laws
are Derek Raymaker, David Kilgour, Victor Ramraj and Bruce Elman. They all put forth different argument, each
contention with its own merits.
Raymaker and Kilgour have stated that it is
important to recognize that rights are never absolute. They also state that "Rights are given
strength through the law, and therefore can be regulated through the law in
reasonable circumstances as prescribed in s.1 of the Charter." This is a difficult stance to take in a
democratic and supposedly "free" society. Are rights given by the state, or are they
fundamental rights that the state must simply uphold? This is where the real difficulty lies. People in western democracies recognize
ability to speak freely as an inherent right, and not as one generously given
to us by our elected officials. In
defense of the Kilgour and Raymaker argument, they also state that
"...freedom of expression cannot simply exist without a system of redress
for those groups who feel besieged by the hatemonger's message." This is important. However, it should not be handled by criminal
law. This issue could be addressed in
civil law and human rights legislation without imposing criminal sanctions on
the "hatemongers".
Victor Ramraj refers to both Ronald Dworkin and
Lord Devlon in his paper . Ramraj's argument can be broken down into two main
components; first he argues that the "concept" put forth by the
Charter as a whole was to promote equality and the rights of minority and
besieged groups. This is where positive
and negative liberties enter the picture.
The rights of minorities not to be condemned to listen to harmful
messages and literature is a positive liberty, while the ability for someone to
orate or write these views is a negative liberty. This is a reasonable argument, but is as
limited as Kilgour's and Raymaker's.
Although people may recognize the plight of minorities, that does not
mean that we must condemn those responsible for spreading these views to
criminal action. Ramraj's second main
argument is that there is very definitely a place for morals in the law. This view is very clearly expressed in Lord
Devlon's "Morality and the Criminal Law" . This argument is difficult to refute, after
all this is itself a moral issue.
Finally, Bruce Elman represents the hard-line
approach to the issue of limiting free speech.
In his 1994 paper, he wrote, "Finally, there is important symbolic
value in having a law prohibiting the dissemination of hate propaganda. Our society must make a clear statement as to
the values which we deem of central importance.... we must be prepared to
support these values with criminal sanctions if necessary." He also states in the same essay that
imposing criminal sanction is less desirable than supporting these core values through
human rights legislation or civil law.
There
are multitudes of other arguments for either side of the war; those described
in this essay seem to capture more of society than do others. As stated in the introduction, the war
between freedom of expression and social intolerance may last for
centuries. While the views discussed in
this essay are not diametrically opposed, they are no where close to reaching a
consensus. Those who advocate "hate
laws" seem to be willing to negotiate; most agree that there is no need
for criminal sanctions. Those that stand
against any regulation of freedom of expression are steadfastly opposed to any
sanctions, criminal or otherwise.
Before I was assigned this paper, I had never
given much thought to this subject.
Choosing on which side to fall, is not an easy decision to make. I have extremely high morals and
principles. I detest racism in all its
forms, and see it as one of the three corroding elements plaguing our society
(the other two are drugs, and the subjectification of women). While I wish that racists could be shot into
outer space, I have to side with Chomsky on this debate. I agree that there is little place for
government intervention in freedom of speech.
This is not an all encompassing view, of course; threats should be
excluded, as well as words inciting harm.
I would be willing to concede to civil law on the subject; so long as it was very carefully
tailored.
My own feelings on the matter were best
described by Justice McLachlin in her dissent in Keegstra:
"The vile of hate propaganda is beyond
doubt... The danger here is not so much that
the legislation will deter those bent on promoting hatred... The danger is rather that the legislation may have a chilling effect on
legitimate activities important to
our society by subjecting innocent persons to constraints born out of fear
for the criminal process."
The split in that court decision has played an
important factor in the continuation of the debate. Any given composition of the court may turn
out a different decision. It will be
interesting to see if the Supreme Court hears the issue again sometime in the
near future. In my view, deciding the
issue of freedom of speech does not necessarily matter, so long as we are
debating it. If we are debating it that
means that society recognizes the potential problems. As long as society recognizes the potential
problems we will never be subject to the same conditions that led to the
holocaust in World War Two Germany.
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