FREE  SPEECH:  Should  there  be  limits?  (Part 2)

There are times when people who speak out can cause grief to many people and those who do this, really don’t care what grief they cause to others. The rhetorical question that must be answered is—should we prevent these kinds of people from speaking publicly? 

Let’s consider Terry Jones (born October 1951) who is the pastor of Dove World Outreach Center, a small nondenominational Christian church in Gainesville, Florida. He first gained national and international attention in 2010 for his plan to burn a copy of the Qur'an, the scripture of the Islamic religion, on the ninth anniversary of the September 11 attacks. On March 22, 2011, he ordered one of his followers to actually set fire to a copy of the Qur’an outside his church. The event was filmed. 

Burning a book, be it the Islamic Qur’an, the Christian Bible or the Jewish Torah is outrageous but is this freak in society within his rights to do this kind of abomination?

The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press etc.

United States v. Eichman, heard in 1990 was a United States Supreme Court case that invalidated a federal law against flag desecration as a violation of free speech under the First Amendment to the Constitution.

The Court said that the Flag Protection Act of 1989 suffers from a fundamental flaw: It suppresses expression out of concern for its likely communicative impact. The same thing could be argued about burning a religious book.

Despite the Act's wider scope, its restriction on expression cannot be justified without reference to the content of regulated speech. In other words, the Government's interest cannot justify its infringement on First Amendment rights. What this means is that despite the outrageous conduct of Rev. Jones and his cohorts in publicly burning the Qur’an, he was within his legal right to do it because his right to do it was guaranteed to him by the First Amendment of the United States Constitution.

Even assuming that the vast majority of the people in the United States and elsewhere condemn the public burning of any and all religious books, any suggestion that the Government's interest in suppressing such an act should be paramount, it is foreign to the edict of the First Amendment.

I am aware that that desecration of the Qur’an is deeply offensive to many people world-wide, especially to Muslims but just how far can a government in a westernized nation such as the United States go to stop the burning of books? For example, if the parents of their young son find a magazine in their young son’s possession that is full of pictures of naked women fornicating, are they prohibited from burning the magazine? I hardly think so. If it was against the law, then no one would have the legal right to burn books and magazines that in their views don’t meet the standards of decency. But fortunately for the people in the United States, they can burn any magazine or book they choose even if in doing so, it would outrage a great many people.

I am not in any manner whatsoever condoning the burning publicly or otherwise the Qur’an or any other religious book, I find it repulsive but what would be more repulsive is the denial of the right to burn the book because if we have the right to burn other books that we may find contrary to our own ways of thinking, then where is the delineable point in law where we cannot burn certain books? There is no delineable point in law and that is why it is not against the laws in the United States to burn the Qur’an.

Now in countries like Pakistan, you risk being lynched or alternatively being imprisoned if you burn the Qur’an.  Strangely enough, one never hears of anyone suffering punishment for burning a Christian Bible. But that is because Pakistan, (which is an extremely backward country) hasn’t matured enough to exercise fairness and freedoms guaranteed to them. Freedom of expression in Pakistan is limited from two fronts: by government officials and by religious conservative groups in the population.

Article 19 of the Constitution of Pakistan provides its citizens with restricted freedoms of speech, expression and of the press. Article 19 says these freedoms can be restricted by the government in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, including friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, or the commission or incitement to an offense. It is the jurisdiction of the judiciary to decide what restrictions may be placed on freedom of expression.

Many recent restrictions on freedom expression stem from citizens themselves rather than from their government. In June 2007 alone, there were more than 20 bomb attacks on movie and music businesses in Pakistan because these people who bombed these establishments took issue with the morality of what was being shown or produced.

On October 11, 2012, Rev. Terry Jones, together with fellow pastor Wayne Sapp and his wife Stephanie Sapp, had planned to attend ‘Freedom Showdown’, an inter-faith debate outside of the Ontario Legislature. Jones had been invited to speak on the lawn concerning the topic, “Islam is not compatible with Western society.” The event was in response to the controversial YouTube video, Innocence of Muslims, which sparked protests throughout the world.

Canadian officials at the Windsor border detained Jones for charges he received in Detroit and a fine he received in Germany. Nearly twenty years ago, Jones received a fine in Germany for giving himself the title “doctor,” even though he had received an honorary doctorate in 1993. Well, the charge in Germany was obviously bogus but the charge in Detroit was valid. He was convicted of breaching the peace which is a criminal crime in that state just as it is in Canada. That being the case, the Canadian authorities had the right to refuse entry to Jones because anyone with a criminal record is not permitted to enter Canada. But the question that has to be answered is—would he have been permitted to enter Canada if he wasn’t so well known as an agitator?  Quite frankly, I would be surprised if he was because the law with respect to criminals entering Canada is strictly enforced. As soon as they ran his passport through the machine, his criminal record would have shown up. Sapp had also been convicted with breaching the peace at a rally in Detroit outside of the Islamic Center of America in early 2011, which further prevented his ability to enter Canada also.

Suppose they didn’t have an American criminal record? Could the Canadian border officials have prevented them from entering Canada? Legally, they could not. Canada recognizes the Freedom of Expression as guaranteed by Canada’s Charter of Rights.

There are some Canadians who claim that the real reason why the border officials didn’t permit Jones and Sapp to cross into Canada is because of the fear of an anticipated reaction by Muslim extremists. That fear is justified to some degree but that by itself wouldn’t necessarily give the border officials the right to refuse them entry into Canada. That is because the border officials didn’t know what Jones and Sapp were going to say in the rally. They wouldn’t have the right to presume that what they were going to say would bring to Canada a clear and present danger to its citizens by infuriating the extremists.

Some citizens claim that as Canadians, our freedom of speech doesn’t necessarily mean that we can extend the right of every foreign crackpot or hatemonger to enter into Canada. They are wrong in that thinking. Unless a hatemonger is advocating genocide towards a race of people,  he or she have the right to speak on any subject they choose.

British Home Secretary Theresa May banned the pastor from ever stepping foot in the United Kingdom, after he had been invited to give a speech there for the right-wing group, England is Ours. Germany had also prevented Jones from entering the country for a screening of Innocence of Muslims in September. Both countries feared a backlash by extremists if they permitted Jones and his cohorts into their countries. I suppose that their thinking was that the protection of its citizens from the attacks of extremists took precedence over Jones’ right to speak. That in my opinion was valid reason and if it was valid in those two countries, it might have also been valid in Canada even if they didn’t have a criminal record.

Mr. Galloway, a British MP was invited to express his views in person at the several venues in Canada, at which he was scheduled to speak in March and April, 2009. His topics related to the wars in Iraq and in Afghanistan and to the situation in the Palestinian territories.

He was barred from Canada because of the government’s opposition to his political views. Kenney, the Canadian Immigration Minister banned Galloway from entering Canada because he allegedly supported Hamas, which is designated as a terrorist group by the Canadian government. He was also vehemently opposed to the Israeli intervention in the Gaza Territory in December 2008 and in January 2009. He was also opposed to the ensuing blockade of goods to the Gaza Territory. I don’t think that being opposed to what the Israelis were doing with respect to the Gaza Territories really is a valid justification from banning someone from entering Canada. There are Canadians who had the same views as Galloway and they weren’t punished for those views because in Canada, they are protected by Canada’s right to freedom of expression. Surely that same right would apply to a foreigner who wishes to speak in Canada.

With respect to him supporting Hamas, the law in Canada states that Public Safety Canada law states that it is an offense to knowingly participate in or contribute to, directly, or indirectly, any activity of a terrorist group. This participation is only an offense if its purpose is to enhance the ability of any terrorist group to facilitate or carry out terrorist activity.

Galloway had publicly shown his support for Hamas. Not only had Galloway organized a convoy worth over 1 million British pounds in aid and vehicles, he also personally donated three vehicles and $44,000 (CDN) to Hamas leader, Haniya.

Section 83.18 of the Code defines the criminal offence of knowingly participating in or contributing to, directly or indirectly, the activity of a terrorist group. For the purpose of proving an 83.18 offence, it must be established that the accused’s purpose is to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. The necessity to establish knowledge, intent, purpose or wilfulness is also found in the offences defined in sections 83.02, 83.03 and 83.04 which focus on the collection, provision and use of property to carry out terrorist acts.

There was however no evidence of an agreement on the part of Galloway to participate in the affairs of Hamas nor was there any evidence cited of an intent to aid the cause of Hamas other than in contributing to it as the government of Gaza for the relief of suffering by the civilian population. To characterize the delivery of a convoy of humanitarian aid as “providing a support function” or “financial backing” amounting to an agreement to participate in the affairs of a terrorist organization is overreaching on the interpretation of the law. In other words, his actions did not conflict with Canadian laws. That being the case, he couldn’t legitimately be barred from entering Canada for giving aid to the people of Gaza through the auspices of the Hamas government.

Evidence of financial or other forms of material support may well be sufficient in a particular case to provide reasonable grounds to believe that an individual is a member of a terrorist organization depending on the context and purpose for which the support is provided. An individual who knowingly delivers cash or goods to a group to assist in the commission of terrorist acts cannot avoid the label of membership in that group simply because he has never formally joined or put himself under the direction and control of its leaders.

The Federal Court of Canada ruled that in the absence of such evidence, there was no legally reviewable decision to bar Mr. Galloway from  entering Canada. 

There you have it folks—four thoughts on how three governments (United States, United Kingdom, Pakistan and Canada) address the issue of rights to freedom of expression.