FREE  SPEECH:  Should  there  be  limits?  (part 1)

Constitutions in Westernized countries recognized how important free speech is. We believe that people should be able to express their thoughts publicly.  But should we be able to say anything we want or should there be some limitations on free speech? I will give an example were limitations have more or less been placed on a person who made statements the Canadian courts didn’t approve of.

Holocaust denial is the act of denying the fact that the genocide of Jews in the Holocaust during World War II really existed. The key claims of Holocaust denial are: the German Nazi government had no official policy or intention of exterminating Jews, Nazi authorities did not use extermination camps with gas chambers to mass murder Jews, and the actual number of Jews killed was significantly much lower than the historically accepted figure of 5 to 6 million.

Now most people with any functioning brain realizes that denying this information is outright stupid. There is enough evidence that these things really happened in Europe.

But if a man goes about the community denying that gravity exists and says that the reason why we don’t float in the air is because of magnetism, do we imprison them?  Of course not. That is because they have some marbles loose in their heads. Do we have a law that states that you cannot publicly state that gravity doesn’t exist?  Of course not.

Remember the story of Galileo? He was imprisoned by the Church because he said publicly that Earth revolves around the sun. In Germany during the Second World War, anyone who publicly said that Germany was losing the war could be executed. These are two examples of what happens when free speech is curtailed. In both instances, the accused were both right.

Ernst Zündel, a Toronto-based resident in Canada and not a citizen of Canada, operated a small-press publishing house called Samisdat Publishing, which published and distributed Holocaust-denial material such as Did Six Million Really Die? by Richard Harwood (a.k.a. Richard Verrall, a British neo-Nazi leader).

In 1985, Zündel was tried in R. v. Zündel and convicted under a ‘false news’ law and sentenced to 15 months imprisonment by an Ontario court for disseminating and publishing material denying the Holocaust. He appealed the conviction and the matter was heard by the Ontario Court of Appeal in 1987 and finally by the Supreme Court of Canada.

The offence of ‘spreading false news’ is created by section 177 of the Canadian Criminal Code that reads as follows:

177. Every one who wilfully 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. unquote

Now in order to convict anyone under this particular law, the crown (prosecutor) must prove beyond a reasonable doubt that the accused knew that what he was saying in his publication was false.

I am not convinced that Zündel knew that what he was saying was false. If he really believed in his claims that the Nazis during the Holocaust didn’t kill 5 or 6 million Jews, then he couldn’t be convicted of that particular crime.  To be convicted of any crime in Canada, the prosecutor must prove that such a person has the criminal intent to commit a crime knowing that what he is doing is against the law.

For example, if you spread a rumor that blacks in the downtown area of a city are killing white people on the streets and you know that to be false, then you will be convicted of the crime of spreading false news. But suppose a neighbour tells you that he received a phone call from a friend downtown that blacks are randomly killing all white people on the streets of downtown and you tell another neighbour what you have been told and it turns out that the story is false, can you be convicted of spreading false information?  Not really if you believed what you had been told and you merely passed on to your other neighbour what you were told.   

However, this particular Act is in two parts. The second part states that no one can cause injury or mischief to a public interest by publishing false information. This is the stinger in the Act. It in effect is saying that even if the accused believes in what he is saying; if what he is saying offends anyone in the community, he is committing injury and mischief to that person.

I have real concerns about that part of that section of the Canadian Criminal Code.  If a person says, “I don’t trust Jews who sell bonds,” there can be no doubt that he is offending Jews per se. But suppose he says, “I don’t trust anyone who sells bonds.” Is he offending everyone who sells bonds? Yes he is but is it against the law to say that? I hardly think so and if I am right, then why would it be against the law for someone to say that they don’t trust Jews (or any other racial group) who sell bonds especially if he believes what he says whether or not his belief is true or in error?

If we then go one step further and say, “I don’t believe that between five and six million Jews were gassed by the Nazis”, and we believe what we are saying, then are we breaking the law because it offends Jews?

Before I answer that rhetorical question, let me say that I really do believe that  millions of Jews were in fact murdered by the Nazis.

It seems to me that to convict someone because he publishes his honest (even though foolish beliefs), it is taking us down a very slippery slope in which there can be no return to the top of the slope.  It in effect, shreds our constitutional rights to free speech.

Now if someone published a statement that all Jews are sex fiends, then that would be very wrong because even someone who is mentally challenged couldn’t possibly believe that and for this reason we would without question presume that such a person making such an outrageous statement purposely did it to injure and mischieviously offend the character of Jews per se.  It would in my opinion be a criminal offence to publish such an outrageous statement.

But suppose someone were to publish a statement that some Jews are sex fiends. Would that be contrary to the law? Not necessarily because some Jews (like other races) have been convicted of sex crimes so in fact, making such a statement can be construed that it is based on facts that are undisputable.

It does not have to be proved that a false assertion of fact actually caused injury or mischief to a public interest. It is sufficient if it is proved that it was ‘likely to cause such injury or mischief’.  But as I said earlier, it must also be proved that the accused knew that what he published was in fact false. If he really believed in what he published was true, then even if what he published would likely offended people in the community, he still couldn’t be convicted of the crime.

In R. v. Kirby, heard in 1970, an underground newspaper published an edition in Montreal parodying the Gazette and containing a false story that the mayor had been "shot by a dope-crazed hippie". The Quebec Court of Appeal set aside the conviction of the appellant. It considered that while the night city editor of the Gazette might have been incon­venienced by the 50 or so calls received at the Gazette switchboard, there was no injury or mischief to a public interest. The court ruled that even though a false story was published by the underground newspaper, the court was not ‘reasonably convinced that it would  cause trouble and insecurity within the community’.

The three members of the Ontario Court of Appeal hearing Zündel’s appeal considered it necessary to consider whether section 177 is unconstitutional since it infringes section 2(b) of the Charter of Rights’ the fundamental freedom of expression. The court considered the consti­tutionality of impugned legislation under the Charter, both of which the purpose and the effect of the legislation are relevant. No funda­mental freedoms are more basic to our democratic way of life, and more highly prized than the freedoms guaranteed under s. 2(b) of the Charter. It is the ‘freedom of expression’ with which the court was primarily concerned in that in appeal.

They considered a twofold aspect to their inquiry. The court had to decide first whether or not if the fundamental freedom of expression is an absolute freedom, or is it a qualified freedom which must give way to certain restrictions in the interest of society as a whole? If it is a qualified freedom, then the exact limits of that freedom must then be determined.

Secondly, the court had to decide that once the limits of the freedom of expression had been deter­mined, then a decision could be made as to whether or not those limits had been breached. If so, then section 1 of the Charter came into operation in order to decide whether the limitations imposed on the freedom were a reasonable limit which is demonstrably justified in a free and democratic society.

The court said that it was essential at the outset to consider just exactly what really is the ‘freedom of expression’ which is constitutionally protected.

The wording is extremely broad. They are not like rights proscribed under some other sections of the Charter such as ss. 10, 11(f) and (i). There the limits of the rights protected are much clearer, and a breach is more readily apparent and, if a breach has occurred, can be tested under s. 1 of the Charter.

Freedom of expression must necessarily have regard to the corresponding rights and freedoms of other persons. It contem­plates the existence of a social order in which other persons must not be denied similar rights. A simplistic example, which is often given, is that a person is not at liberty to falsely shout “fire!” in a crowded theatre. But if he really believes that there is a fire in a crowded theatre, doesn’t he have a constitutional right to make his newfound information public?

As Justice Dickson stated when delivering the judgment of the Supreme Court of Canada in R. v. Big M Drug Mart Ltd. that was heard in 1985;

“Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others; no one is to be forced to act in a way contrary to his beliefs or his conscience.” unquote

Surely that could apply to Zündel if the court was satisfied that his belief with respect to the Holocaust was true even if the facts he based his beliefs were false.

No funda­mental freedoms are more basic to our democratic way of life, and more highly prized than the freedoms guaranteed under section 2(b) of the Charter of Rights in Canada.  However, there is a question that must be answered and that is; “Is the fundamental freedom of expression an absolute freedom, or is it a qualified freedom which must give way to certain restrictions in the interest of society as a whole? If it is a qualified freedom, then the exact limits of that freedom must be determined.”

 

Once the limits of the freedom of expression have been deter­mined, then a decision can be made whether those limits have been breached. If so, then section 1 of the Charter comes into operation in order to decide whether the limitations imposed on the freedom are a reasonable limit which is demonstrably justified in a free and democratic society.

In Boucher v. The King, Justice Rinfret when considering an appeal from a conviction for seditious libel, stated in a dissenting opinion in a Supreme Court of Canada case;

“……..to interpret freedom as license is a dangerous fallacy. Obviously pure criti­cism, or expression of opinion, however severe or extreme, is, I might almost say, to be invited. But, as was said elsewhere, there must be a point where restriction on individual freedom of expression is justified and required on the grounds of reason, or on the ground of the democratic process and the neces­sities of the present situation.” unquote

In Switzman v. Elbling, Justice Rand of the Supreme Court of Canada recognized that freedom of expression was limited and not absolute when he stated;

“For the past century and a half in both the United Kingdom and Canada, there has been a steady removal of restraints on this freedom, stopping only at perimeters where the foundation of the freedom itself is threatened. Apart from sedition, obscene writings and criminal libels, the public law leaves the literary, discursive and polemic use of language, in the broadest sense, free.” unquote

It is obvious that free speech or expression is not an absolute, unqualified defence to some criminal charges under the Criminal Code. Other values must be weighed with it. Sometimes these other values supplement, and build on the value of speech. But in other situations there is conflict. When that happens, the value of speech may be cut back if the competing value is a powerful one. Thus, for example, we have laws dealing with libel and slander, and blasphemy. We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults, and we cannot publicly advocate treason, genocide or murder.

But can we misinterpret a historical event?

Justice Thorson speaking for the Ontario Court of Appeal said in R. v. Potts, a 1982 decision;

“Generally speaking, a Court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.” unquote

 

 I don’t think anyone can really deny the existence of the Holocaust which took place in Europe under the Nazi regime. Even some of the Nazi hierarchy who were on trial in Nuremburg acknowledged that millions of Jews were slaughtered and that most of them were gassed.

 

 But do these facts which have been established deny anyone from taking issue with them?  I think not. Taking judicial notice of a fact or matter does not necessarily mean that the matter is indisputable. It is not necessarily anything more than a prima facie recognition of the matter as true without the offering of evidence by the party who should ordinarily have done so, but the opponent is not prevented from disputing the matter by evidence, if he believes it to be disputable. However, I think it is rash to dispute a recognized fact without first submitting evidence that the recognized fact is actually false.

 

 For example, when the Church argued that the Sun revolves around Earth, their opinion was based entirely on faith and not physical evidence. That left the Church with the unenviable position of being subjected to another view which in the end, turned out to be the correct one.

 

It is well established that courts may take judicial notice of historical facts that is because the courts may, on their own initiatives, consult historical works or documents, or the courts may be referred to them. But even if during a trial, the historical facts have be indisputably established, does this mean that a person who doesn`t accept those facts, is prohibited from expounding his own views that the facts are wrong?

 

 Any ideas having even the slightest redeeming social importance such as unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion, have the full protection of the Charter of Rights in Canada, unless of course they are excludable because they encroach upon the limited area of more important interests such as protecting society or individuals from physical harm.

 

 Even where the utterance is actually false, the principles of the Charter in Canada and the Constitution in the U.S. in which both secure freedom of expression, preclude attaching adverse consequences to anyone uttering them except if in doing so, they know that what they are saying is a falsehood or they are reckless in uttering such a statement without first making a reasonable effort to find the truth.

 

 However, although honest utterance, even if inaccurate, may further the fertile exercise of the right of free speech, does it follow that the lie, knowingly and deliberately published about a recognized fact should enjoy immunity from prosecution?”

 

 This is where the rights of free speech are in direct collision against the rights of others who dispute the controversial facts.

 

 Calculated false statements fall into that class of utterances which have no essential part of any exposition of ideas. They are of such a minor social value as a step towards truth that any benefit that may be derived from them is clearly outweighed by the social interest expected to maintain order within the community.   

 

 As an example; consider what would happen if one race of people accuses members of another race of committing crimes against children. Jews repeatedly have been accused of child sacrifice for 2000 years, by Christians and Muslims. The Romans accused the early Christians of eating babies, the medieval Western part of Europe accused Jews and heretics of eating babies, in medieval literature, pagans were accused of eating babies, the Revolutionary French peasantry accused the French nobility of eating babies. It was these kinds of false accusations that brought disorder within communities.

 

 Justice Jackson of the Supreme Court of the United States said in a case the court was hearing;

 

 “Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the "clear and present danger" test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis of probabilities.”  unquote

 

 What he was really implying was that if someone yells out in a crowd of people on the street that all the blacks in the crowd intend to kill all the whites and that statement is an outright lie, the panic that could result from such an outrageous public statement or even the possible panic that could result from such a statement, would be a clear and present danger to all of the people in the crowd. That would in effect therefore be a criminal act on the part of the person who made that statement.

 

 But suppose a person merely says to the crowd that it is a fact that in the past, blacks hated whites. There would be no clear and present danger to the people in the crowd. Admittedly there would be some angry blacks and whites in the crowd if they heard that statement but there would be no panic and instead both blacks and whites in the crowd would simply be upset and rightly so.

 

 Now let’s compare that with the case involving Zündel.

 

 He didn’t say in the present tense that the “Germans are not murdering Jews by the millions.” If he said that, some Jews in Germany might have had some concern that maybe Jews are currently being murdered by Germans and he is simply denying that allegation. That could in the minds of Jews, especially older Jews who suffered at the hands of the Nazis, make them believe that there is the existence of a clear and present danger. In his writings however, he spoke in the past tense when he claimed that the “German Nazis didn’t murder 5 to 6 million Jews.” Such a statement is wrong and foolish to boot but no one reading that statement would have reason to believe that they are in a clear and present danger if they read such a statement which referred to an event in the past tense that occurred almost 70 years ago.

 

Let me give you another example. Suppose Zündel said that it wasn’t true that the Turks during the Ottoman Empire didn’t kill a million innocent Armenians. Would he be charged with any crime? Hardly. There are many people from Turkey living in Canada and they deny that a million Armenians weren’t killed by the Turks. They were never charged with anything and rightly so. That is because they were exercising their rights to free expression.

 

 Zündel underwent two criminal trials in 1985 and 1988. The charge against Zündel alleged that he published a statement or tale that was titled, Did Six Million Really Die? which he knew was false and that was likely to cause mischief to the public interest in social and racial tolerance, contrary to the Criminal Code. After a much publicized trial in 1985, Zündel was found guilty. After his conviction, Zündel was able to have it overturned in an appeal on a legal technicality, leading to a second trial in 1988, in which he was again convicted. Zündel was originally found guilty by two juries but was finally acquitted upon appeal by the Supreme Court of Canada which held in 1992 that section 181 (formerly known as section 177) was a violation of the guarantees of freedom of expression under the Canadian Charter of Rights and Freedoms.

 

 Zündel was deported to Germany on March 1, 2005. Upon his arrival at Frankfurt airport, he was immediately arrested and detained in Mannheim prison awaiting trial for inciting racial hatred. German prosecutors charged Zündel on July 19, 2005, with fourteen counts of inciting racial hatred, which is punishable under German criminal law, and Section 130, 2.(3) (Agitation and sedition of the People) with up to 5 years in prison. The indictment said that  Zündel denied the fate of destruction for the Jews planned by National Socialist power holders and justified this by saying that the mass destruction in Auschwitz and Treblinka, among others, were an invention of the Jews and served the repression and extortion of the German people.

 

 I am not familiar with German law so I won’t comment on it but would he be charged with a similar crime by denying the existence of the Holocaust if he was put on trial in the United States?

 

 In the United States, the freedom of speech and of the press, which are secured by the First Amendment against abridgment of that freedom are among the fundamental personal rights and liberties which are secured to all persons in the U.S. by the Fourteenth Amendment against any abridgment by any of its states.

 

The safeguarding of these rights to the ends that people in the United States may speak as they think on matters they believe are vital to them and that all falsehoods they believe exist may be exposed through the processes of education and discussion. If Zündel had made the statement that 5 to 6 Jews didn’t really die at the hands of the German Nazis, while he was in the United States, his right to correct what he erroneously believed was a mistaken fact was guaranteed by the First Amendment.

 

The freedom of speech and of the press guaranteed by our Constitution embraces at least, the liberty to discuss publicly about what we believe is truthful on any matters of what we also believe is of public concern or interest without risk of arrest and punishment. The importance of this right consists, aside from the advancement of truth, science, morality, and arts in general, a diffusion of liberal sentiments on the administration of our governments, along with, its ready communication of thoughts between its people, and its consequential promotion of union among them, whereby oppressive officials of government are shamed or intimidated into more honourable and proper modes of conducting the affairs of the people.

 

 To answer the question stated in the title of this article, my answer to that question is that there should be a limit of our right to free speech but that limit should only apply if a statement uttered would cause physical injury, panic or rioting to or by those people who heard or read it or are victimized by it.