Is the right to freedom of speech going too far? (Part II)

The American doctrine of freedom of speech, as articulated in the Bill of Rights, is 200 years old. By contrast, Canada acquired its Charter of Rights and Freedoms only in 1982. Supreme Court Justice Holmes wrote in Abrams v. United States (1919): “It may seem from the sorts of difficulties often adduced when efforts to suppress speech are advanced that the ultimate argument for free speech is the futility of suppressing it.” This article deals with the attempts at suppressing free speech and for this reason; I will deal with two aspects of this problem, holocaust denials and hate messages.

Holocaust Denials

Over the last decade, a number of freedoms of expression cases (which is the same as freedom of speech) have come before the Canadian courts. For example, section 181 of the Criminal Code of Canada reads: "Everyone who willfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and is liable to imprisonment for two years."

Laws of this sort require that the court determine at least these three things: that the accused is wrong about some historical facts, thereby making the court the arbiter of history; that certain words can and do cause specific untoward consequences; and that the accused is saying things which that person knows to be false.

Holocaust denial consists of claims that the genocide of Jews during World War II—usually referred to as the Holocaust—did not occur at all, or that it did not happen in the manner or to the extent historically recognized. Holocaust deniers generally do not accept the term ‘denial’ as an appropriate description of their point of view, and use the term Holocaust ‘revisionism’ instead.

Holocaust denial is explicitly or implicitly illegal in 15 countries in Europe: Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia and Switzerland. The Parliament of Hungary declared the denial or trivialization of the Holocaust a crime punishable by up to three years imprisonment on February 23, 2010. The President of the Republic signed the law on March 10, 2010.

Ernst Zündel (born April 24, 1939) who lived in Canada from 1958 to 2000, is a German neo-Nazi, holocaust denier and pamphleteer who was jailed several times in Canada for publishing literature which "is likely to incite hatred against an identifiable group" and for being a threat to national security. While in the United States he was deported for overstaying his VISA. He was convicted in Canada under this "falsification of history" statute for publishing so-called Holocaust revisionist literature. Although section 181 was at that time was ruled constitutional, his fifteen-month sentence was quashed by the Ontario Court of Appeal in January 1987 and a new trial ordered. In the spring of 1988, Zündel was found guilty in his new trial and sentenced to nine months in prison. The ‘falsification of history’ statute no longer applies in Canada.

When the Supreme Court of Canada finally heard Zündel case and ruled against him, the chief justice wrote in part;

“All communications which convey or attempt to convey meaning are protected by section 2(b) of the Canadian Charter of Rights and Freedoms. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false. Section 181 has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).” unquote

However, for the Crown, to succeed against Zündel it had to establish beyond a reasonable doubt the following propositions: 1.that the accused published a false statement, tale or news; 2. that the accused knew that the statement was false and 3. that the statement caused or is likely to cause injury or mischief to a public interest.

When Zündel was originally tried, the jury was instructed by the trial judge that it was entitled to infer from the judge's instruction that because the Holocaust must be regarded as proven, the accused must have known it to be proven and must be taken to have published his pamphlet deliberately for personal motives, knowing the falsity of his assertion to the contrary, the logic being ineluctable: everyone knows this is false; therefore the defendant must have known it was false. This man was not an uneducated man. There is no doubt in my mind that he knew that what he said was false. I believe he did what he did to harass Jews.

He was deported from Canada in 2000 upon his release from prison for charges of "inciting racial hatred to Germany where he was later tried in the state court of Mannheim on outstanding charges of incitement for Holocaust denial dating from the early 1990s. On February 15, 2007, he was convicted and sentenced to the maximum term of five years in prison. He was released on March 1, 2010. It is amazing that anyone really took this fool seriously when you consider that he also proclaimed that Hitler maintained a top-secret UFO base in Antarctica.

Let me state right from the onset that I have no doubt in my own mind that the Holocaust in Europe really happened and that almost 6 million Jews were slaughtered by the Nazis. What concerns me however is that there are laws that make it a criminal offence to deny that the Holocaust really did occur. It would appear on the surface that such laws fly in the face of free speech.

In Germany, it is against the law to deny that the Holocaust brought about by the Nazis ever existed. Under the Public Incitement Act, sub section 3 it states that ‘whoever publicly or in a meeting approves of, denies or belittles an act committed under the rule of National Socialism (Nazism) of the type indicated in Section 6 subsection (1) of the Code of Crimes against International Law, in a manner capable of disturbing the public peace shall be punished with imprisonment for not more than five years or a fine.’

Subsection (4) states that whoever publicly or in a meeting disturbs the public peace in a manner that assaults the human dignity of the victims by approving of, denying or rendering harmless the violent and arbitrary National Socialist rule shall be punished with imprisonment for not more than three years or a fine.

Anyone in Germany who was a victim of Nazism may lay a complaint as per an application for criminal prosecution. The act states; “If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the aggrieved party was persecuted as a member of a group under the National Socialist or another rule by force and decree, this group is a part of the population and the insult is connected with this persecution. The act may not, however, be prosecuted ex-officio if the aggrieved party objects. When the aggrieved party deceases, the rights of complaint and of objection devolve on the relatives indicated in Section 77 subsection (2), thus the objection may not be withdrawn.”

Section 2 states that “if the memory of a deceased person has been disparaged, then the relatives indicated in Section 77 subsection (2), are entitled to file a complaint. If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the deceased person lost his life as a victim of the National Socialist or another rule by force and decree and the disparagement is connected therewith. The act may not, however, be prosecuted ex officio if a person entitled to file a complaint objects.” Again, the objection may not be withdrawn.

As I said earlier in this piece, such a law flies in the face of free speech. However, there is a very valid reason why Germany has this act in place. Under the 130 Public Incitement Act, section 1, it states that whoever, in a manner that is capable of disturbing the public peace: incites hatred against segments of the population or calls for violent or arbitrary measures against them; or assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be punished with imprisonment from three months to five years.

Obviously publicly denying the existence of the holocaust in Europe would cause people to be angry and in all likelihood, create a disturbance.

I remember many years ago when I was in the immediate area of one of Toronto’s main intersections (Yonge and Dundas Streets) There was a quite a large commotion. A white supremacist was spouting off garbage in which he yelled that only white people should be permitted to live in Canada. The crowd chased this fool for a great many blocks before the police arrived. I too was in that crowd chasing that fool.

If publicly denying the existence of the Holocaust in a public place where there are more than two persons present is capable of creating a disturbance, then it should be against the law. However, suppose the person making the denial does so in writing or on the radio or on TV; is he or she capable of creating a disturbance in a public place?

Many years ago when I was the producer and host of a television talk show in Toronto, I produced a particular show on racism. I invited James Alexander McQuirter, the then Grand Wizard of the Ku Klux Klan of Canada to be a guest on my show. I also invited the head of the Human Rights Commission of Ontario (a black man) to also be a guest on my show. Between the two of us, we made a fool out of McQuirter and his ideology. To McQuirter’s credit, many years later, he publicly apologized for promoting views that he now calls "abhorrent" and says that others like him should "learn from my mistakes" and leave the racist movement. I have even seen a picture of him with his arm over the shoulder of a black man.

Did I do wrong by permitting McQuirter to spout off his views on racism? No I didn’t because in Canada and many other countries, there is the freedom of the press which includes other forms of media such as TV and radio. It was my intention to show those watching my show just how wrong the ideology of the Ku Klux Klan really was. I was successful in doing that.

This raises an interesting point. Suppose I was to produce a television show in which I would invite a Holocaust denier to spout off his views. Would I be breaking the law in Canada?

According to Bill Pentney, general council for the Canadian Human Rights Commission, if people like Zündel want to go on a street corner and flap their gums about their beliefs, if they want to cover every single parking lot in Toronto with flyers or write every single newspaper editor in the western hemisphere to get their messages out, they can do that. This however seems to conflict with what happened to Zundel when he was in Toronto publishing literature which according to the authorities, "is likely to incite hatred against an identifiable group.” He was jailed for that indiscretion.

This doesn’t mean that if a television producer or the editor permits a Holocaust denier or white Supremacist to spout off his views is breaking the law especially if he also includes another view that contradicts the Holocaust denier’s or white Supremacist’s views, which is in fact what I did.

This raises a troubling question. Is denying the existence of the Holocaust really inciting hatred against an identifiable group such as the Jews?

The Armenian Massacres was the deliberate and systematic destruction (genocide) of the Armenian population of the Ottoman Empire (now Turkey) during and just after World War I. It was characterized by the use of massacres, and the use of deportations involving forced marches under conditions designed to lead to the death of the deportees, with the total number of Armenian deaths generally held to have been between one and 1.5 million. On the 24th April of 1915, about 300 Armenian leaders, politicians, intellectuals, writers, religious leaders etc., were arrested. After transferring them to a slaughter house (all except one bishop named Komitas, who lost his senses and memory as a result of what he had seen), they were viciously butchered. It was the beginning of the Armenian Genocide. Also on the same day, over 5,000 of the Armenians in Istanbul were murdered in the streets and their houses. Then the Armenian soldiers in the army were disarmed and after being transferred to forced labor (services and road construction), they too were killed by the Turks group by group.

On March 13th 2010, the foreign ministers of Turkey and Sweden condemned a vote in the Swedish parliament that defined the early 20th-century killing of Armenians by Ottoman Turks as genocide. Swedish Foreign Minister Carl Bildt said "We are interested in the business of reconciliation, and decisions like that tend to raise tensions rather than lower tensions.” This doesn’t mean that it didn’t happen.

This is where the issue becomes interesting. It is against the law in Turkey to say that the massacre of Armenians existed but it isn’t against the law in Germany and elsewhere to say that the massacre of Jews existed. Something is wrong with this picture. For example, the first well documented massacres took place during the Crusades. Though violence was forbidden officially by the various popes, the bands of knights who set out on the crusades were essentially lawless marauders. Rather than protecting the Eastern Christians, which was one of the official goals of the Crusades, they often as not destroyed and plundered their communities. The conquest of Jerusalem itself was accompanied by a horrific pogrom, in which all the Jews who were not expelled were murdered. Is it against the law to say that this all happened or alternatively to say that it didn’t happen. I think not.

There are some who will claim that the historical Jesus never existed. Is such a statement blasphemous? Although blasphemy is a ‘speech crime’ and is a criminal offense in some countries (e.g., Canada and the United Kingdom), it is seldom invoked precisely because it runs counter to the ‘freedom of expression’ principle to which those same nations say they subscribe.

The way I see it, these events are part of history and they are not so sacrosanct that members of society shouldn’t publicly comment on the issue as to whether or not these events ever happened. To deny anyone the right to comment on these issues as to the authenticity of the reports of the events is in direct conflict with our rights to free speech and expression.

Hate Messages

Hate speech is any communication which disparages a person or a group on the basis of some characteristic such as race or sexual orientation. In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by race, gender, ethnicity, nationality, religion, sexual orientation, or other characteristic. It is permitted however in private conversation.

Probably the most important reason the Canadian parliament found it appropriate to pass legislation against hate literature is that in the aftermath of World War II it was obvious that steps should be taken to prevent another Holocaust such as what took place in Europe between 1939 and 1945. The same forces that prompted Canada to introduce hate literature statutes after World War II affected other countries as well and led to such international proposals as Article 20 of the "International Covenant on Civil and Political Rights". It reads: "1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” unquote

Hatred is for the most part based on revenge. Generally, a hate monger has some personal agenda with respect to a particular group of people. The issue arises in many discussions of freedom of speech as to whether their malignant lies and suggestions are protected. They certainly are not when defaming a living person. But are they protected when applied to groups of people of different races and creeds rather than just individuals? Most people would say they believe in freedom of speech, but when that belief is put to the test; when speech is to be defended, it is not what they find agreeable, but what they find abhorrent. For example, suggesting that a certain class of people should be put to the sword; that is abhorrent. The context in which the causal efficacy of words upon which actions lead to suffering, usually includes incitement, propaganda, obscenity and hate literature. All speech that might be thought to undermine, or have the potential for undermining the welfare of its citizens, the state can take action.

The only purpose for which the power of government can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. If we accept that statement based on the principle of harm against others, we need to ask “what types of speech, if any, causes harm?” To answer that question, I will tell you of three true scenarios.

A website that uses hate speech is called a hate site. Most of these sites contain Internet forums and news briefs that emphasize a particular viewpoint. There has been debate over how freedom of speech applies to the Internet.

In March, 2010, A Toronto man was suspended from York University after the National Post reported he was under police investigation over his controversial Internet postings. The Ontario Provincial Police said the week before that its Hate Crimes and Extremism Unit was investigating online writings by Mr. Salman Hossain that made derogatory comments about Jews and called for a genocide against them. Further, Salman Hossain has been ordered to appear before York University’s disciplinary panel and, in the meantime, he is not permitted to attend classes at the north Toronto university campus. In his website, Filthy Jewish Terrorists, he said with respect to Jews; "Yes, I can call for the slaughter of an entire people." and "A genocide should be perpetrated against the Jewish populations of North America and Europe." The hearing before the University’s disciplinary panel will take place sometime before June 2010. What I find most disturbing is that this man was earlier charged for similar activities but the attorney general of Ontario had the charges withdrawn because he believed that Hossain had reformed his ways. His public statements mirror his character. He is all a rage when he gives his opinions and yet he really says nothing of value.

The second scenario took place in the United States. Members of a Kansas-based church have picketed military funerals to spread their belief that U.S. deaths in Afghanistan and Iraq are punishment for the nation's tolerance of homosexuality. The funeral for Marine Lance Cpl. Matthew Snyder in Westminster, Maryland, was among many that have been picketed by members of the fundamentalist Westboro Baptist Church in Kansas. Westboro pastor Fred Phelps and other members of his church have used the funeral protests to spread their belief that U.S. deaths in the Iraq war are punishment for the nation's tolerance of homosexuality. One of the signs at Snyder's funeral combined the U.S. Marine Corps motto with a slur against gay men. Other signs carried by members of the Topeka, Kansas-based church said, "God Hates the USA/Thank God for 9/11," and "Thank God for IEDs," a reference to the roadside bombs that have killed many U.S. troops in Iraq and Afghanistan. The signs also say, "Thank God for dead soldiers."

A jury in Baltimore awarded Albert Snyder damages of $5 million for emotional distress and invasion of privacy, but a federal appeals court threw out the verdict. The 4th U.S. Circuit Court of Appeals said the signs contained "imaginative and hyperbolic rhetoric" protected by the First Amendment. The Supreme Court of the United States is getting involved in the legal fight. The court agreed recently to consider whether the protesters' message, no matter how provocative and upsetting, is protected by the First Amendment. Its ruling will be published next fall.
As soon as I hear of the findings and the police decision of the two above scenarios, I will bring them to the attention of my readers in an UPDATE in this article.

The third scenario took place in Saskatchewan, Canada several years ago. David Ahenakew, was a former Saskatchewan aboriginal leader who was stripped of the Order of Canada for calling Jews a ‘disease.’ Ahenakew was acquitted of a hate crime charge over remarks he made about Jews to a reporter in 2002. He was found guilty at his first trial on the charge and fined $1,000, but the conviction was overturned on appeal in 2006 and a new trial was ordered. Judge Wilfred Tucker chastised Ahenakew for his comments, which included blaming Jews for starting World War II. Tucker called the words "revolting, disgusting and untrue," but ruled Ahenakew didn't intend to promote hate when he uttered them. At his second trial on hate charges he testified that he doesn't hate Jews but still believes they caused World War II. "Everybody says I'm a Jew-hater," he told court. "I don't hate the Jews, but I hate what they do to people.” He never got the opportunity to have his third trial as he died on March 13th 2010 at the age of 76.

The Council of Europe has worked intensively on this issue. While Article 10 of the European Convention on Human Rights does not prohibit criminal laws against revisionism such as denial or minimization of genocides or crimes against humanity, as interpreted by the European Court of Human Rights, the Committee of Ministers of the Council of Europe went further and recommended to member governments to combat hate speech under its Recommendation R (97) 20. The Council of Europe also created the European Commission against Racism and Intolerance, which has produced country reports and several general policy recommendations, for instance against anti-Semitism and intolerance against Muslims. Most European liberal democracies have limitations on hate speech, but it is debatable whether these can be justified by the harm principle. Freedom of speech is protected in the First Amendment of the Bill of Rights in the United States and is guaranteed to all Americans. I presume that includes everyone else living in the United States. In Canada, Section 2(b) of the Charter of Rights guarantees everyone in Canada freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Most people think that free speech should be limited if it causes illegitimate harm. To limit a person’s right to say or print what they want, the government would have to show that such a speech violated other people's rights; which could be a problem if it doesn’t cause harm to anyone. If we want to limit speech because of harm, then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because sometimes it is aimed at discrediting specific groups.

A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property. The main argument against allowing the march, based on the harm principle, was that it would cause harm by inciting opponents of the march to riot.

The problem with this claim is that it is the harm that could potentially be done to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate. To ban speech for this reason, i.e., for the good of the speaker, tends to undermine the basic right to free speech in the first place. If we turn to the local community who were on the wrong end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights.

Hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition. If we examine some of the other factors regarding offensive speech mentioned above, the march through Skokie does not do very well: the social value of the speech seems to be marginal, the number of people offended will be large, and it is difficult to see how it is in the interests of the community. These reasons also hold for violent pornography.

However, such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furor over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech that would escape prosecution under the harm principle.

In a high-profile case in 1990, the Supreme Court of Canada weighed James Keegstra’s rights to free speech against the offence of wilfully promoting hatred under the Criminal Code. As a teacher, Keegstra made racist comments in the classroom. The court ruled that under section 1 of the Canadian Charter of Rights and Freedoms, a limitation of free expression is justified in a democratic society. The court stated that since hate propaganda harms us all, then stopping its spread helps people from different backgrounds to live together — and may even reduce violence in Canada. For these reasons, the Supreme Court said that section 1 of the Charter "saves" the crime of wilfully promoting hatred. In other words, the court said that that Keegstra had in fact broken the law.

This freedom of speech that we all have gives everyone the right to speak freely without censorship or limitation. Thus, regardless of sex, color, class or creed, everyone has the right to freedom of expression. However, such freedom becomes questionable in certain cases! For example, let's pay closer attention to the term verbal abuse. In a situation wherein an adult constantly keeps making derogatory statements about a child in his/her presence, such comments can cause psychological damages, seriously interfering with that child's positive development, and overtime may lead to significant detriment to that child's self-esteem and emotional well-being. We may call this verbal abuse which may sometimes lead to physical abuse! However, regardless of the consequences, wasn't that individual just freely expressing him/ herself or opinions?

The mother of a girl at the centre of a custody hearing heard last year in Winnipeg, Manitoba told social workers who interviewed her that she drew a Nazi swastika and other Nazi symbols on her daughter's skin to send a message to the school. The mother said her daughter had been missing school because she didn't want to sit next to a non-white boy. The parents' white-supremacist views are overshadowing legitimate concerns about the lack of quality care the children were receiving. The children would end up growing up hating non-whites and eventually, they would be ostracized from the majority of the people they hoped to associate with.
The court ruled that the children were to be taken from their parents. Hopefully, as they grow up, all that garbage they were fed by their supremacist parents will vanish from their minds.

In conclusion, I wish to say that although our right to free speech shouldn’t be curtailed, there has to be some limitation applied. For example, we cannot run into a movie theatre and scream “FIRE” when there is no fire. We can’t publicly debase someone’s character when there are no grounds to do so; we cannot incite crimes or hatred against anyone, irrespective of their race, religion or sexual preferences; we cannot unnecessarily bring fear to other persons; and we certainly cannot publicly advocate treason, terrorism or murder.

The fear that I have is that purists will eventually restrict our freedom of speech to the point that it will be against the law to express our views on the weather. Of course, the editors of the Flat Earth Society tract will be forbidden to publish so we will miss the moments of joy when we laugh uncontrollably while reading their tract’s nonsense. Imagine if you will, a hundred years from now, authorities having the means to read our minds. Since Dubai makes it a criminal offence to kiss someone on the cheek in a public place, what would be the penalty in that country if they could read the minds of anyone who just by chance, sees a beautiful woman and in his mind, he visualizes her being naked? Countries are cultivated, not because of the minds of its citizens being fertile, but because their minds are free to say and write what they wish with only reasonable limitations placed upon them.