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The right to freedom of expression can be described as a war. It is a
war that has lasted for centuries and may last for centuries more. It is a war
between freedom of expression and social intolerance. In this war there are
many battles. The battle on which this brief essay centers itself is the battle
between freedom of speech and laws limiting that freedom; more specifically the
ability to spread hate propaganda and the "hate laws". Included in the essay is
a brief outline of one skirmish that has taken place (Keegstra).
Those who fight on the side supporting freedom of speech do so for several reasons. Braun declares that it is a basic democratic right to voice your own opinion .
Douglas Christie has gained notoriety for his vigorous representation of high-
profile, controversial clients, charged under the hate laws. He advocates
freedom of speech for two main reasons: a) he finds it abhorrent that the state
can legislate thoughts and words, and b) he often agrees with the views held by
his clients. Others such as Noam Chomsky, a brilliant intellectual, argue not
for the views expressed, but the ability to express them. Lining up on the
other side of the battle you have: Derek Raymaker, David Kilgour, Victor Ramraj,
and Bruce Elman. They argue that there is definitely a moral place for laws
regarding hate speech, whether they are criminal or not. There was recently a
new development in the Canadian war for freedom of expression. Introduced in
April 1982 was a new and important strategic battleground.
With the Charter of Rights and Freedoms the war could be won or lost by
either side. It was not long before the Charter saw battle.
In 1984, Jim Keegstra was charged with violating section 281 of the
Criminal Code of Canada (now covered under section 318-320). Keegstra was a
respected school teacher and mayor of the small town of Eckville, Alberta. This
was no borderline fanatic; this was an elected official charged with promoting
hate. However by the time Keegstra's trial rolled around he was no longer the
mayor Eckville and his teaching license, revoked. The problem was, the very
nature of s. 281 lent itself to legal debate under section 2 of the relatively
new Charter of Rights and Freedoms. The defense counsel Doug Christie lost no
time in challenging the legislation's constitutionality. In response, Crown
prosecutor, Bruce Fraser, stated that Keegstra was being charged with promoting
hatred; not expressing it. The Crown also stated that freedom of speech is not
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Queen's Bench wrote an eighty page decision upholding the constitutionality of
section 281. In his decision he stated "It is my opinion that s. 281.2(2)
cannot be rationally considered to be an infringement which limits 'freedom of
expression' but on the contrary it is a safeguard which promotes it."
When the issue finally rose to the Supreme Court of Canada, the
advocates of hate laws had won a very shallow victory. The split of the court
was 4-3, leaving uncertainty as to who had actually won.
It is too subjective to view the problem of freedom of expression as
"good" versus "evil". The debate raises the main issue of whether or not the
people of Canada want the government to be passing any laws limiting our rights
to think and speak. While it is nearly unanimous that violently acting on these
views is illegal; the debate on laws against speech of any sort draws not only
racists, but simple liberals who believe in the freedom of speech.
Braun outlines the argument against any criminal limitations on freedom
of speech. First, he states that one of the basic premises of democracy is
that: "A self-governing people that have the right and ability to decide for
themselves whom to believe must surely have the right and ability to decide what
to act on." Another point made by Braun, in the same article, is that the
right to legislate against words, even narrowly defined such as words of
'incitement' "tends to erode the political process of talking and genuine
debate." Other such arguments rise up against the legitimacy of such hate laws.
Douglas Christie, in Zundel, declared that the right to a minority
opinion was at stake. In his address to the jury he asked "What are we
lobotomized idiots, that we can only accept the viewpoint of the majority? ...
Do we never entrench the right to differ?" Christie also compared Zundel to
Galileo, who dared to pronounce that the world was round. He also stated:
"For the sake of freedom, I ask you never to forget what is at stake
here. That accused stands in the place of anyone who desire to speak their
mind. Even if you don't agree with him, you must take it as a sacred
responsibility not to allow the suppression of someone else's honest
Chomsky takes much the same road. Respected the world over is not
necessarily Chomsky's views, but his ability to express them and his
understanding of the problems society faces. In a 1988 interview Chomsky stated
"...I wouldn't like the government to have the power to decide what you can
hear." With respect to a French school teacher being tried for falsification of
history he said,
".... Now that means that the state has the right to decide what is
historical truth, and if it decides "this is historical truth" and you say
something else, you're a criminal. In my view, that's a fantastic
scandal, I don't care whether what the guy said is true, false,
indifferent; I don't even give a damn what he said. The idea of giving
the state the right to decide what's true, that's just straight, flat-out
Those who advocate the passing of "hate laws" such as sections 318
through 320 of the Criminal Code, also seem to be arguing from a largely
moralistic standpoint. They also state that it is extremely difficult for the
Crown to convict under the laws. Admittedly, yes it is, and that is the way it
should be. Four proponents of these laws are Derek Raymaker, David Kilgour,
Victor Ramraj and Bruce Elman. They all put forth different argument, each
contention with its own merits.
Raymaker and Kilgour have stated that it is important to recognize that
rights are never absolute. They also state that "Rights are given strength
through the law, and therefore can be regulated through the law in reasonable
circumstances as prescribed in s.1 of the Charter." This is a difficult stance
to take in a democratic and supposedly "free" society. Are rights given by the
state, or are they fundamental rights that the state must simply uphold? This
is where the real difficulty lies. People in western democracies recognize
ability to speak freely as an inherent right, and not as one generously given to
us by our elected officials. In defense of the Kilgour and Raymaker argument,
they also state that "...freedom of expression cannot simply exist without a
system of redress for those groups who feel besieged by the hatemonger's
message." This is important. However, it should not be handled by criminal
law. This issue could be addressed in civil law and human rights legislation
without imposing criminal sanctions on the "hatemongers".
Victor Ramraj refers to both Ronald Dworkin and Lord Devlon in his paper
. Ramraj's argument can be broken down into two main components; first he argues
that the "concept" put forth by the Charter as a whole was to promote equality
and the rights of minority and besieged groups. This is where positive and
negative liberties enter the picture. The rights of minorities not to be
condemned to listen to harmful messages and literature is a positive liberty,
while the ability for someone to orate or write these views is a negative
liberty. This is a reasonable argument, but is as limited as Kilgour's and
Raymaker's. Although people may recognize the plight of minorities, that does
not mean that we must condemn those responsible for spreading these views to
criminal action. Ramraj's second main argument is that there is very definitely
a place for morals in the law. This view is very clearly expressed in Lord
Devlon's "Morality and the Criminal Law" . This argument is difficult to refute,
after all this is itself a moral issue.
Finally, Bruce Elman represents the hard-line approach to the issue of
limiting free speech. In his 1994 paper, he wrote, "Finally, there is important
symbolic value in having a law prohibiting the dissemination of hate propaganda.
Our society must make a clear statement as to the values which we deem of
central importance.... we must be prepared to support these values with criminal
sanctions if necessary." He also states in the same essay that imposing
criminal sanction is less desirable than supporting these core values through
human rights legislation or civil law.
There are multitudes of other arguments for either side of the war;
those described in this essay seem to capture more of society than do others.
As stated in the introduction, the war between freedom of expression and social
intolerance may last for centuries. While the views discussed in this essay are
not diametrically opposed, they are no where close to reaching a consensus.
Those who advocate "hate laws" seem to be willing to negotiate; most agree that
there is no need for criminal sanctions. Those that stand against any
regulation of freedom of expression are steadfastly opposed to any sanctions,
criminal or otherwise.
Before I was assigned this paper, I had never given much thought to this
subject. Choosing on which side to fall, is not an easy decision to make. I
have extremely high morals and principles. I detest racism in all its forms,
and see it as one of the three corroding elements plaguing our society (the
other two are drugs, and the subjectification of women). While I wish that
racists could be shot into outer space, I have to side with Chomsky on this
debate. I agree that there is little place for government intervention in
freedom of speech. This is not an all encompassing view, of course; threats
should be excluded, as well as words inciting harm. I would be willing to
concede to civil law on the subject; so long as it was very carefully tailored.
My own feelings on the matter were best described by Justice McLachlin
in her dissent in Keegstra:
"The vile of hate propaganda is beyond doubt... The danger here is not
so much that the legislation will deter those bent on promoting hatred...
The danger is rather that the legislation may have a chilling effect
on legitimate activities important to our society by subjecting innocent
persons to constraints born out of fear for the criminal process."
The split in that court decision has played an important factor in the
continuation of the debate. Any given composition of the court may turn out a
different decision. It will be interesting to see if the Supreme Court hears
the issue again sometime in the near future. In my view, deciding the issue of
freedom of speech does not necessarily matter, so long as we are debating it.
If we are debating it that means that society recognizes the potential problems.
As long as society recognizes the potential problems we will never be subject to
the same conditions that led to the holocaust in World War Two Germany.