How far should we stretch our right to freedom of speech? (Part 2)

Section 2(b) of the Canadian Charter of Rights states that ‘Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.’

We are also protected by article 19 of the Human Rights Charter: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”(The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, in Paris.)

But just how far can we as citizens stretch our right to our freedom of speech?

Well for one thing, we can’t publicly accuse someone of a crime they didn’t commit. To do so would bring about the consequences of a defamation suit against us. We can’t advocate genocide against any race of people. To do so would being about the consequences of being sent to prison.

A neo-Nazi leader and former university math lecturer has recently lost a court appeal that bolsters the power of the embattled Canadian Human Rights Commission to enforce its orders against those spreading hate.

Regina’s Terry Tremaine, head of the National-Socialist Party of Canada, which uses the Nazi swastika and images of Adolf Hitler to promote itself, was originally cleared of a contempt of court ruling on a technicality in the law.

Even though he ‘deliberately flaunted’ an order of the Canadian Human Rights Tribunal to stop his online hate messages, imposed in 2007, he won an appeal last year at the Federal Court of Canada, which said the tribunal, as a ‘quasi-judicial’ body, could issue orders but not enforce them.

It was a point not lost on Mr. Tremaine, who declined to remove his Internet postings, made under the moniker “mathdoktor99,” which called Jews a “parasitic race,” said “blacks are intellectually inferior to whites” and “Hitler was a lot nicer to the Jews than they deserved,” according to the tribunal’s judgment.

This hate monger said to the higher court, “My purpose in ignoring the cease and desist order was to address the urgent matter of impending white extinction.”

There is no doubt in my mind that this man does not have all of his marbles in order. “Impending white extinction?” Give me a break. It is true that the so-called ‘White Anglo Saxon Protestant’ (WASP) that whites bragged of being a member of is something of the past but there will always be humans who are of the white race. They will not become extinct.

But the Federal Court of Appeal last week breathed new life into the ability of quasi-judicial tribunals — not only those dealing with human rights — and the court also said that when they issue orders, those orders must be complied with.

Anti-hate speech activist Richard Warman, an Ottawa lawyer who launched the human rights complaint, praised the appeal victory. He said, “This says that tribunal orders, generally, are deserving of much greater respect and much greater weight than they seem to have been in the past.”

He added, “It gives weight to the Human Rights Tribunal’s orders and says these are not orders to be ignored. These are orders of a quasi-judicial body that Parliament has given authority to issue and they shall be respected. I think that’s really important, because without that power behind it then tribunals are really rendering their orders into voids. The ruling means contempt complaints are valid from the moment a breach occurs, not just from when a court adopts the order.”

Mr. Warman’s complaints also led to Mr. Tremaine’s firing from his post as a lecturer at the University of Saskatchewan, where he taught a first-year math course.

After the original hearing, the tribunal ordered Mr. Tremaine to stop posting discriminatory messages and fined him $4,000. He ignored the ruling.

Mr. Tremaine must now return to the Federal Court for sentencing on his contempt finding. The maximum penalty is five years in prison and a fine of any amount. His National-Socialist Party of Canada website still was publishing the same or similar material and the other online posts were still accessible.

The American Nazi Party (ANP) was an American political party founded by discharged U.S. Navy Commander George Lincoln Rockwell. Headquartered in Arlington, Virginia, Rockwell initially called it the ‘World Union of Free Enterprise National Socialists’ (WUFENS), but later renamed it the American Nazi Party in 1960 to attract maximum media attention. The party was based largely upon the ideals and policies of Adolf Hitler's NSDAP in Germany during the Third Reich but also expressed allegiance to the Constitutional principles of the U.S.'s Founding Fathers.

On August 25, 1967, Rockwell was killed by John Patler, a former party member whom Rockwell had ejected from the party for allegedly trying to introduce Marxist doctrine into the party's platforms. While leaving the Econowash laundromat at the Dominion Hills Shopping Center in Arlington, Virginia, two bullets entered his car through his windshield, striking Rockwell in the head and chest. His car slowly rolled backwards to a stop and Rockwell staggered out of the front passenger side door of the car, and then collapsed on the pavement.

These neo-Nazis are into Holocaust denial which is the act of denying the genocide of Jews during World War II, usually referred to as the Holocaust. 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 and gas chambers to mass murder Jews, and the actual number of Jews killed was significantly (typically an order of magnitude) lower than the historically accepted figure of 5 to 6 million. Let me say from the get go that I believe that the Nazis really did murder that many Jews and others during World War Two.

However, I have some concern that people who deny facts in history may be charged as criminals.

The Toronto-based photo retoucher Ernst Zündel operated a small-press publishing house called Samisdat Publishing, which published and distributed Holocaust-denial material such as Did Six Million Really Die? written by Richard Harwood (a.k.a. Richard Verrall – a British neo-Nazi leader). Ernst Zündel, was charged under a private complaint laid by Sabina Citron, a founder of the Canadian Holocaust Remembrance Association, with the criminal offence of ‘spreading false news’ likely to cause racial and social intolerance. The charge was later assumed by the Crown and led to two lengthy jury trials in 1985 and 1988, both of which ended in convictions. Years later, he was deported back to Germany and at the time of this writing, he is in a German prison.

Admittedly, some puzzling facts emerged at his 1988 trial.

During the 1988 trial, Germar Rudolf, a chemist in Germany, investigated the sites of the alleged gas chambers of Auschwitz and took samples for the purpose of determining cyanide levels. Tests on the samples showed no or minimal traces of cyanide. Rudolf's report concluded that the alleged gas chambers at Auschwitz could never have been used for gassings.

The primary component and killing agent in Zyklon B gas is hydrogen cyanide (HCN), which is a positive hydrogen ion bonded to a negative cyanide ion. The toxicity of HCN is caused by the cyanide ion, which halts cellular respiration by inhibiting an enzyme in mitochondria called cytochrome c oxidase. The gas, hydrogen cyanide (also called Prussic Acid) is twenty-four times more deadly than carbon monoxide. Hydrogen cyanide can cause rapid death due to metabolic asphyxiation. Death can occur within seconds or minutes of the inhalation of high concentrations of hydrogen cyanide. Sources report that 270 parts per million is fatal after 6 to 8 minutes, 181 parts per million after 10 minutes and 135 parts per million after 30 minutes. It is highly probably that the Nazis chose this chemical and that particular ingredient because of its toxicity despite the statement of Germar Rudolf saying otherwise.

I was invited to inspect the prisons in California in 1972 and one of the prisons I visited was the San Quentin penitentiary in San Francisco. I sat in the gas chamber in that prison and discussed capital punishment with the deputy warden. He told me that after a condemned prisoner was gassed with the hydrogen cyanide, the air in the chamber was sucked out by a powerful fan and the guards could then enter the chamber. If hydrogen cyanide elements lingered on the walls and the floor of the gas chamber in the penitentiary over a period of time, the effects of the gas would be obvious to those that entered the chamber. As I see it, the hydrogen doesn’t linger on walls. The poisoned air in the gas chambers in Poland was sucked out of the chambers after the victims were dead. Further, it is highly unlikely that cyanide would later linger about on the rubble of the gas chambers after the wind constantly blew over the rubble. This would explain why Rudolf couldn’t find any traces of the cyanide.

During that trial, Canadian crematory expert, Ivan Lagacé, testified that the thousands of persons alleged by Holocaust historians to have been cremated in Birkenau and Auschwitz daily were “ludicrous and beyond the realm of reality.”

Walter Lüftl is a professional engineer with a large engineering firm in Vienna and is president of the Austrian Chamber of Engineers.

In 1992 Lüftl wrote a report calling the alleged extermination of millions of Jews in gas chambers “technically impossible.” He pointed out that the design of the crematories themselves showed that they were incapable of handling the number of victims alleged. "Corpses are not flammable material. To cremate them requires much time and energy.”

According to the Cremation Association of North America, cremating bodies at the optimum temperature (1400-1800 degrees), the average weighted body takes 2 to 2 1/2 hours. If we presume that the two bodies that could be placed inside each oven in Auschwitz would take two hours to be cremated and there were 46 individual ovens in that camp and it took two hours to cremate the 92 bodies in those ovens at one time, and if the ovens were being worked for 24 hours a day, then as many as 2,208 bodies might be cremated in that 24-hour period in that one camp alone. That means that 15,456 would be cremated in a seven-day period and in a 30-day period, as many as 66,240 bodies would be cremated. It is conceivable that thousands could have been cremated in both Auschwitz and Birkenau each day, despite what Canadian crematory expert, Ivan Lagacé said in his testimony.

Now you may ask; what does this all have to do with freedom of speech? Let me explain.

Keep in mind that Zündel believed that he had the right to express his views about the Holocaust. In his case, he did not have that right. I will explain my reasoning behind that statement.

His trial was before a judge and jury. The jury was the decider of the facts of the case but the judge was the decider of the law. It was his responsibility to explain the law to the jury. In doing so, he would have said something like this—

“If you are satisfied that the defendant actually believed in his public statements with respect to the Holocaust, then you cannot conclude that he willingly broke the law as there must be the criminal intent in his mind for him to break the law in order for you to convict him. If on the other hand, you believe that he knew that what he was saying was false and he still made such false public statements, then you must convict him. However, there is a third alternative for you to consider. If you believe that he made no effort to verify his statements other than to look at only one source of each of his statements, then he made his statements recklessly and being reckless in bringing about one’s deeds is not a defence to those deeds.”

In Canada and other Commonwealth countries, it is against the law for a jury to publicly state how they reached their verdict so I don’t know for sure how Zündel’s jury reached its verdict but it is quite conceivable that they concluded that he was reckless in determining what he believed to be the truth and for this reason, they found him guilty.

Legal systems, and society at large, generally recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights. For example, American members of Westboro Baptist Church have been specifically banned from entering Canada for their hate speeches. They are the people who walk about with placards that say, “Thank God for Dead Miners” and attend the funerals of dead soldiers so that they can insult their families. The reason why the Canadian authorities won’t permit these kinds of people in Canada is that their presence would bring about a disturbance.

In On Liberty (1859) John Stuart Mill argued that “...there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”

He was right and that is why people who are in favour of abortion are permitted by law to state what their position is even if many people think that their views are immoral. Offending someone is less serious than harming someone and that is why the penalties imposed should be higher for causing harm. That is why Ernst Zündel was sent to prison. He was reckless as to how his statements would have an effect on the survivors of concentration camps where they lost their loved ones.

A woman in Newfoundland complained that a song that had been played on Canadian radio for 25 years used the word faggot. The council didn’t look at the context of the song, they didn’t look at the meaning, they just ruled that it used the word faggot and was therefore homophobic and was essentially banned on commercial radio in Canada.

They reversed themselves after a public outcry, a good dose of public ridicule and after looking at the context of the song.

Tom Burlington claimed he was a victim of reverse discrimination, in being terminated for asking whether it was okay to use the word “nigger” on the air in a story about the NAACP in Philadelphia holding a symbolic burial for the word. His co-anchor, Joyce Evans, who is African-American, confronted Burlington after the meeting, allegedly telling him he was being insensitive about trying to use the n-word. Evans was not actually present at the meeting. Burlington again used the word at a meeting with management to describe what happened during the newsroom discussion. He was then suspended, and fired three days later.

A year ago, a federal judge in Pennsylvania had agreed to allow a white television news anchor who was fired for using the word “nigger” in a June 2007 newsroom meeting, to proceed with his lawsuit against his former employer, WTXF Fox 29. Judge R. Barclay Surrick said, “When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees.”

An African-American employee, John Jervay, used the word “nigger” three times in an email to management describing what Burlington had done. Because Jervay was not disciplined, Surrick ruled that a jury could reasonably conclude that WTXF’s management had engaged in race-based discrimination.

The use of the word ‘nigger’ is a highly contentious issue in American society. Its roots come from the word "negro", and was used by slave owners and, later, it was used by segregationists. Today, it is highly taboo for a white man to use the word ‘nigger’ to describe or insult a black man. Yet, it also has become widely used within the black community in a diversity of ways, both endearing and insulting. Many within the black community have subsequently called for banning its use. In March of 2007, for example, the word ‘nigger’ was banned by the New York City Council.

As you can see, the use of some words conflict with our right to freedom of speech but because some words are insulting, they should not be used.

Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59(I) stating “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.”

Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely. There may be certain extreme forms of expression which need to be curtailed for the protection of other human rights. Limiting freedom of expression in such situations is always a fine balancing act. One particular form of expression which is banned in some countries is “hate speech” and rightly so.

We can advocate a change in government but we cannot advocate the violent overthrow of our government. The former is democratic and the latter is treason.

Certainly wise people before they speak, consider what they will say, to whom they will say it, where they will say it and how what they will say will affect the sensibilities of those who hear what they have to say. To do otherwise is to demean the intent of our right to free speech.