FREEDOM  OF  SPEECH  AND  EXPRESSION:  Should  they  be  absolute? 

There is a paragraph that has white backing behind it. It  has no signigficance  as it is only an anomaly in the printing.

Certainly one of our prized possessions in westernized countries such as the United States and Canada is our right to speak and express ourselves publicly. I strongly suspect that in less advanced countries, a great many of their people envy our two countries because of our guarantees that we can enjoy when it comes to our freedom of speech and expression.

 But do we in our advanced countries really expect our guarantees of our freedom of speech and expression to be adhered to the fullest? Not really. There are some restrictions. For example, you cannot yell fire in a crowded theatre when there is no fire. You cannot libel someone publicly and not expect to be sued in court for damages. If you blaspheme Mohammad or criticize the writings in the Qu’ran, you can expect to be hunted down and murdered by radical Islamists. You cannot publicly advocate genocide or the murder of someone. You cannot publicly advocate the violent overthrow of the government. And believe it or not, you apparently cannot try to change history in Canada or Germany by claiming that the murder of six million Jews is a myth. 

 I am deeply concerned that it is an offence in Canada and in Germany to deny the existence of the murder of six million Jews in Europe during World War II. I believe that figure is reasonably accurate but even though a public statement denying those facts is offensive to millions of Jews and others world-wide, and rightly so, to punish anyone who publicly denies those facts is not only unconstitutionally wrong, but actually the potential harm is that it will deny historians in the future from arriving at their own conclusions as to what happened in history before their own births and publicly stating them in their own writings.

 In the United States, the First Amendment to the United States Constitution is part of the United States 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, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

 In this article, I will be dealing with issues involving the bridging of freedom of speech and expression.

 The Espionage Act of 1917 in the US imposed a maximum sentence of twenty years for anyone who caused or attempted to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States. Over two thousand citizens of the US were convicted under the Act. In one case, when sailors refused to continue unloading explosives after a ship blew up because of bad loading procedures, they were imprisoned after protesting against the government that their lives were in danger.  Later, they were released when the government realized that it had gone too far. One filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of a current American ally—the United Kingdom. Those situations are evidence that the freedoms of speech were wrongly being denied to these people.

 Justice Oliver Wendell Holmes, Jr., writing for the US Supreme Court in one particular case, explained that the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

 I am convinced that the kind of evils he was speaking of include those in which innocent people can be killed. I will give you an example of a recent evil.

 We are all cognizant of the rather ham-fisted ridiculous film written and produced by Nakoula Bassela Nakoula, an American convicted criminal in the United States who took great pleasure in insulting Islam’s holiest prophet, Mohammed in his film, Innocence of Muslims. What was shown publicly was that 'blasphemous' film that branded Mohammed a fraud, a pedophile and a womanizer. Now that fool Nakoula has a bounty on his head.

 Thousands of Muslims around the world took to the streets in 11 countries to protest the insulting material and demand an apology. Many people died in the clashes including an American ambassador and three of his aides who were murdered in their consulate in Libya. Despite condemning the film as “repulsive”, the US government has not officially apologized for the insulting movie, because it was acknowledging the American’s right to free speech and expression and the right of Nakoula to film what he wanted to film and show it publicly.

 I do however recognize how important free speech is in our society since I certainly have spoken my mind in the last five years by publishing almost 800 articles in my blog. But I do not purposely inflame my readers to the point that they want to kill innocent people around the world. That is going too far. Further, I am not stupid enough to write and publish a book that besmirches Mohammad and therefore causing me to hide because there is a bounty placed on my head. That is simply asking for unwanted trouble. Whatever I think of that particular prophet, I keep my views of him to myself.

 However, are there really times when exercising a person’s right to speak his mind publicly is contrary to his country’s best interests? Consider this case.

Charles Schenck was the Secretary of the Socialist Party of America and was responsible for printing, distributing, and mailing to prospective military draftees during World War I, as many as 15,000 leaflets that advocated opposition to the draft. These leaflets contained statements such as; “Do not submit to intimidation”, “Assert your rights”, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain, on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.”

For these acts, Schenck was indicted and convicted of violating the Espionage Act of 1917. Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights. He lost his appeal.

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was not contrary to the edicts of the American Constitution. He wrote that the First Amendment did not protect speech encouraging insubordination, since, “when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” unquote In other words, the court held that the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

That same kind of response from the Canadian government occurred after the Second World War began. During World War II, former Mayor of Montreal Camillien Houde campaigned against conscription in Canada. On August 2, 1940, Houde publicly urged the men of Quebec to ignore the National Registration Act. Three days later, he was placed under arrest by the Royal Canadian Mounted Police on charges of sedition. After being found guilty, he was confined in internment camps in various parts of Canada until August 1944.

 The outbreak of the Second World War allowed Mackenzie King's government to reinstate the Act. Further, the Defence of Canada Regulations was developed subsequent to the invoking of the War Measures Act. These regulations essentially passed the authority of government to the war committee of the federal cabinet. The regulations had enormous influence in limiting free speech, suspending habeas corpus, interning suspicious individuals or groups. There could not have been successful grounds of appeal by Houde against the War Measures Act as being unconstitutional and certainly not in a time of war.

 Some free speech advocates maintain that they have the right to be enormously offensive even to the point of expressing discriminatory attitudes that vilify identifiable minorities. For example, Terry Jones is a church minister in Florida who goes out of his way to bring his followers with him (mostly his family and relatives) to military funerals where he then berates the dead soldiers as being killers of children. Canada won’t permit this scumbag entry into Canada since we don’t tolerate that kind of abuse at our funerals or anywhere else for that matter. Germany has also banned this twit and his followers entry into their country.

 This dimwitted, supercilious, and impulsive so-called man of God even managed to increase violent rioting at the United Nations building in New York. He increased Islamic animosity toward Americans internationally by threatening to burn the Qu’ran, increased religious polarization, and put American troops overseas in more danger amongst outraged people in the Middle East who are sick and tired of what they are convinced is American disrespect, ignorance and condescension of their nations. The question that obviously comes to the fore is—can the United States do anything to stop this man from spewing out of his mouth, the garbage he stores in his barely functioning brain? Even though he puts Americans at risk, the US First Amendment protects this man’s right to make silly and dangerous comments publicly.

 hould human rights legislation aimed at promoting tolerance and combating discrimination be used to restrict free speech? I remember a case where I was representing a man in court whose superintendent of the building had purposely damaged my client’s car (and other tenant’s cars) when the cars were parked in the underground parking. Outside the courtroom, I referred to the superintendent as a Polish bastard. He was of Polish descent and he certainly was a bastard in the colloquial sense. I got a call from a woman from the Human Rights Commission of Ontario saying that I couldn’t call the man a Polish bastard and that if I continued to do it, I would be charged under the Human Rights Act of Ontario. I told the stupid woman that the truth beats might and since the man was Polish and he certainly was a bastard, I was correct in my definition of him. I told her that if I am charged, I will make mincemeat out of their case and mincemeat out of the reputation of the Human Rights Commission. Needless to say, I never heard another thing about the bastard’s complaint again. 

The most infamous case in Canada concerned the issue as to whether Mark Steyn’s 2006 Maclean’s article, The Future Belongs to Islam was likely to expose Muslims to hatred and also contempt and thusly violated British Columbia’s Human Rights Code. The case went forward in British Columbia where complainants have direct access to the British Columbia Human Rights Tribunal, as long as the complaint is timely and falls under the jurisdiction of the Tribunal.

 There could be doubt, that the overall thrust of Steyn’s argument, as well as his sarcastic, even mocking tone; was offensive and hurtful to many Muslims and Westerners too, who were his main target of derision for their cultural relativism, low birth rates, and unwillingness to defend Western society. The British Columbia Human Rights Tribunal Panel stated that Steyn’s article was deeply offensive to some Muslims and it also stated that the Article contained numerous factual, historical, and religious inaccuracies about Islam and Muslims.

 However, the Panel ultimately dismissed the complaints because the article did not rise “to the level of detestation, calumny and vilification” necessary to breach s. 7(1)(b) of the Code. Moreover, they found that the article was an expression of political opinion in the context of ongoing debates about recent historical events involving extremist Muslims and the problems facing the vast majority of the Muslim community that does not support extremism.

 In 1969, in Brandenberg v. Ohio, the US Supreme Court struck down the conviction of a Ku Klux Klan member and in doing so, established a new standard—Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails even in today’s era of unrest.

 It seems to me that the film, Innocence of Muslims is a prime example of the kind of speech that excites people to riot and commit murder. Unfortunately, like other countries in the world, the Middle East has violent reactionary elements amongst their citizens. For this reason, this kind of rhetoric in my opinion should not be permitted to be in the public domain even though the author of such detestable material has the constitutional right to publish his views.

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. There are people who will say that we should not give the government the power to decide which opinions are hateful because history has taught us that governments are more apt to use this power to prosecute minorities than to protect them. As one US federal judge had put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.” That premise appears on the surface to be reasonable but at a terrible consequence such as what has happened after the film Innocence of Muslims circulated around the world.

I made a statement on the Internet on February 15, 1998 when I said;

“When we open the door to reason, we can expect the cold and biting winds of racism to enter. But if we keep the door closed, we are deluding ourselves into believing that it is warm outside. It is far better to face the cold and biting winds of racism head on because from that experience, we soon learn that by cloaking ourselves with some form of protection; it makes the cold and biting winds of racism more bearable.”  unquote

That statement was in response to a bigot who was denouncing blacks per se. The message I was trying to convey was that if we forbid the publication of racist commentary, we are forcing racists to take an alternative way to get their messages across by the use of violence alone. However, in my opinion, if racist commentary has the potential to incite violence, then it should be nipped in the bud. No one’s life should be sacrificed because a racist has the constitutional right to spew dangerous commentary that highly offends a group of people into a murderous rage. By nipping in the bud, I was referring to speaking out against racism which is what I did when I then mentioned many of the great accomplishments that black people had done in the past.

 US President Barack Obama on September 26, 2012 reminded Americans that hateful speech is protected by the First Amendment of the American Constitution. He also said;

 “The strongest weapon against hateful speech is not repression; it is more speech—the voices of tolerance that rally against bigotry and blasphemy and lift up the values of understanding and mutual respect.” unquote

 Now one could argue that the rioters and murderers in the Middle East countries already have a hatred for Americans and the publication of Innocence of Muslims wasn’t and isn’t the real reason why so many Muslims hate Americans. There are other reasons for their hatred of Americans but the publication of that detestable film was the spark that ignited the flammable Islamic psyche into a conflagration that was previously up to then, mere embers of hatred of Americans that Muslims living in the Middle East had towards them. As of the middle of September 2012, the cities of Tunis, Tripoli, Lebanon, Gaza City, Cairo, Amman, Jordan, Baghdad, Tehran, Kabul, Kuwait City, Doha Srinagar, Dhaka, Chennai and Kuala Lumpur—cities that are populated primarily with Muslims, are protesting the showing of the film Innocence of Muslims. I can’t help but wonder if the film hadn’t been made in the United States but instead somewhere else, would the Muslim fury be as intense as it is now?

 The question that must come to the fore is; “Is it possible to know in advance as to whether or not a publication of an inflammatory article or statement will immediately set off a set of events that will unquestionably result in rioting and murder? Consider the following case.

 A leader of a Ku Klux Klan group in Ohio was convicted under the Ohio Criminal Syndicalism Statute for advocating crimes of sabotage, violence, and unlawful methods of terrorism as a means of accomplishing political reform. He was convicted. He challenged the constitutionality of the Criminal Syndicalism Statute under the First and Fourteenth Amendments to the United States Constitution. His final appeal was heard in the Supreme Court in Ohio. The Court’s decision was announced on June 9, 1969. He was found innocent because to find otherwise, would have denied him his rights of expression guaranteed by the First Amendment.

The Court was aware of an earlier decision of the US Supreme Court (Abrams v. United States) in which Justice Holmes said in part;

 “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.” unquote

 I interpret that aspect of the jurist’s remark as to mean that Congress would have to add something to the First Amendment that an exception should be added as a codicil; the exception being that if clear and present danger will immediately or soon after come as a direct result of an inflammatory statement, then the edict of the First Amendment cannot be used as a defence for having made the inflammatory statement.

 Publicly destroying a copy of the Qu’ran can incite Muslims to an intense violent response so should the person doing it be arrested? Suppose instead he rips his own Bible to shreds to celebrate his departure from his faith and his embrace of atheism. Should he also be arrested? If so, can he legitimately claim that he has that right based on his right of free expression to burn both books? Suppose he burns a copy of the Qu’ran as one of the many books he is burning in his own backyard and he does it privately and then his neighbour notices what he is doing and he videotapes what he sees and publicizes it knowing that he will inflame the anger of Muslims. Can the neighbour then be arrested and charged with creating the scenario that followed when incensed Muslims in the Middle East killed Americans? The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

 If publicly burning the Islamic holy book occurred many decades ago, the resulting inflamed Muslims’ reaction would likely be nothing like what has happened in this current era. But a very important question has surfaced and it has to be answered. The question is; “Why should anyone in the Westernized world of today be governed by the emotions of those of the Islamic faith that live in the Middle East?

 This question has to be answered sooner or later and it can only be answered by both the politicians who make our laws and the courts that interpret those laws. It is a question that I cannot answer because of the complexity of the problem. I will refer the answer to that question to brighter minds than mine. 

All matters of belief should be beyond the reach of subpoenas or the probings of investigators. That is why the previous invasions of privacy made by American investigating committees were notoriously unconstitutional. That was later realized because of the infamous loyalty-security hearings which, since 1947 when President Truman launched them, had processed 20,000,000 men and women. Those hearings were primarily concerned with the thoughts, ideas, beliefs, and opinions of those being questioned under oath. The hearings were the most blatant violations of the First Amendment that Americans have ever known. If any of them admitted that they liked some of what Karl Marx wrote in his book, Das Kapital, they were deemed to be communists and denied opportunities in employment.

 In Canada, no one can use the Internet as a means of making statements that conflict with Human Rights legislation. What follows is from section 13 of the Canadian Human Rights Act.

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

 What subsection 2 means that if for example, a blogger writes something in his blog that is contrary to the edicts of the Canadian Human Rights Act, the firm that provider (such as Rogers) cannot be prosecuted for what a subscriber published in his blog.

 Certainly there is no constitutional line between advocacy of abstract ideas and advocacy of political action. The quality of advocacy turns on the depth of the act committed and as such, unless the quality of advocacy encourages hatred and violence, the government should have no power to invade that sanctuary of anyone’s belief and conscience. If that were to happen, then we are not truly free.

 No one can be absolutely free however if he or she cannot express an opinion. Our rights to express ourselves should be paramount both to governments and the people of all nations but I am not caprice when I say that there should be some rare exceptions in order to protect the public as a whole.

 My opinions in this contentious issue may not be palatable to some of my readers but I would rather stand up and state them with conviction than err on the side of others who might believe in the necessity of excessive government control over our beliefs and our rights to express them while the government acts in what it believes is in our best interests. We all know what happens when rogue governments do this.  They do this to further their own interests at the expense of those they govern.