Should hate speech be banned? A debate - IRPP

IRPP

SHOULD HATE SPEECH BE BANNED? Whether hate speech should be censored by the government has become one of the great constitutional questions of our time, and the subject of no fewer than three Supreme Court of Canada decisions in the last 10 years, involving James Keegstra (1990), Ernst Zundel (1992), and Malcolm Ross (1996). To explore the issue of whether the state should have the right to censor hateful expression, Jonathan Kay of the National Post editorial board recently interviewed Warren Kinsella and George Jonas. Mr. Kinsella is the author of Web of Hate: Inside Canadas Far Right Network, and is a long-standing defender of Canadas anti-hate policies. Mr. Jonas is a novelist, playwright and Southam columnist. Here is an edited transcript of their discussion, a shorter version of which appeared in the National Post. La question de savoir si lÉtat peut censurer les propos haineux est devenue lun des grand enjeux constitutionnels de notre temps. Au cours de la dernière décennie seulement, elle a fait lobjet de trois jugements de la Cour suprême dans les affaires James Keegstra (1990), Ernst Zundel (1992) et Malcolm Ross (1996). Pour éclairer ce débat, Jonathan Kay, membre du bureau de rédaction du National Post, a interviewé Warren Kinsella et George Jonas. M. Kinsella, auteur dun ouvrage intitulé Web of Hate : Inside Canadas Far Right Network, soutient depuis longtemps les politiques interventionnistes en ce domaine. M. Jonas, est romancier, dramaturge et chroniqueur pour la chaîne Southam. Voici une transcription, révisée de leur entretien lequel est déjà paru en version abrégée dans le National Post. Jonathan Kay: It seems every week brings a new controversy concerning state censorship. The most recent brouhaha involves Doug Collins, a journalist accused of writing anti-Semitic tracts in a suburban Vancouver paper. The British Columbia Human Rights Tribunal fined Mr. Collins after finding his publications violated BCs Human Rights Code. Mr. Kinsella, you have written in support of hate-speech censorship. What do you make of this case? Warren Kinsella: Because most newspapers in this country had the good sense to decline to publish the rubbish Doug Collins passed off as column-writing, not many Canadians are familiar with what he wrote. They cannot be expected to know, therefore, that he repeatedly denied aspects of the Holocaust or that he wrote that Jews are intolerant and that they steal, or that gays are homos and filth and dirt who deserve

AIDS, or that immigrants were atrocities and illiterates and scum. Those of us who lived on Vancouvers north shore received Mr. Collins column every week, whether we wanted it or not. Objecting to that is not censorship. It is merely exhibiting common sense, and not a little good taste. Jonathan Kay: Mr. Jonas, you have written against hate speech censorship. How do you read the tribunals decision? George Jonas: Objecting to what Mr. Collins writes is just fine. If that is what he has written, I object to it myself. The gulf that separates objecting to something and trying to enforce ones objection through the machinery of the state is what separates free countries from tyrannies. Jonathan Kay : Now lets talk about censorship more generally. As both of you know, Section 319 of the

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Should hate speech be banned?

Canadian Criminal Code criminalizes certain kinds of Jonathan Kay: Mr. Jonas? hate speech. Recent press reports suggest the proviGeorge Jonas: For this debate, I have done sions in Sec. 319 are going to be strengthened this year. absolutely no research other than to have viewed the We have also seen provincial human rights commisresults of restrictions on free expression as a working sions take a more aggressive line against hate-mongers journalist for the last 35 or 40 years. the case of Mr. Collins being just one example. Mr. Lets immediately cut out from the discussion all Kinsella, you have been one of Canadas most forceful those things which we dont need to dispute because advocates of hate speech censorship. What are your were in full agreement. The Nazi ideology and similar thoughts on this trend? ideologies, either in their ancient or modern forms, Warren Kinsella: Ill start by throwing out a quote would be as abhorrent to me as they would to Mr. Kinfrom John Stuart Mill which is worth repeating: The sella. It probably also goes without saying that I only purpose for which power can be rightfully exerapprove of there being limits to absolute freedoms in cised over any member of a civilized community any human endeavour, including expression, for comagainst his will is to prevent harm to others. James mon sense reasons. Keegstra and Malcolm Ross were school teachers and I will simply note that, as Mr. Kinsella pointed out, they had loudly proclaimed their hatred for Jews and many limits to freedom of expression have indeed been Catholics and others in and around the classroom. And applied over time. Those limits cover all the grounds evidence, uncontradicted evidence, in both hearings that I can think of where unfettered freedom of expresshowed that children were aware of the views and had sion might cause mischief: official secrets acts, laws been affected by those views. providing strictures against uttering fraud and obscenAs to whether there should be some ity in certain shapes and forms, and so forth. changes to Section 319, there are reportedly Now, these laws have always been with us one or two new elements in it. For instance, and Im not disputing them. People who courts would be urged to take judicial notice argue for freedom of expression sometimes of the Holocaust or other notorious genocidal fall into the trap of an absolutist position. events in history so that youd avoid the kind While I theoretically agree with the possiof costly and time-consuming and ultimately bility of the absolute position, its not one fruitless exercise you went through in the first that I happen to share. I am restricting my Zundel trial where the judge, with the best of objection to our current hate laws and any intentions, but mistakenly, permitted Mr. strengthening of hate laws. These laws Christie Zundels lawyer to spend many restrict opinion, creed, belief, and historical months attacking the factual basis of the interpretation. Holocaust. That is a big waste of time. In the Both Mr. Kinsella and I seem to view Mill Warren Kinsella second trial, they took judicial notice of the as an authority on this issue. Considering Holocaust. This seems to be what the new proposal is that it is 1999 and exactly the 140th anniversary of the driving at. publication of On Liberty, thats appropriate. So in the I dont believe I am a censor. I believe Im somebody spirit of this anniversary we will look at him as an who supports the exercise of judgement. Free speech authority. He appeared to have been quite unequivocal rights are not absolute. Even Mill has said that some in his belief that stifling opinion, even false opinion, rules must be imposed on the rules of human conduct. was evil. He referred to exactly what I referred to: And that is in fact the situation in Canada. There are namely, opinion, creed, historial interpretation, belief limitations found in the Charter, Section 1. Speech is and so forth and so on. subject to reasonable limitations in every Western Under Canadas hate speech laws, we restrict such democracy, including the United States, and this is part pronouncements only selectively, censoring only cerof the Canadian tradition going back to the Alberta tain speakers and attitudes, which makes it, to my Press Bill case in 1938, where it was said that the right mind, worse than a total restriction because it does of public discussion is subject to legal restrictions. Both not even have the window-dressing of neutrality on the that case and the Quebec Padlock Case, an appeal basis of principle. It politicizes censorship according to that dealt with the Quebec governments restrictions on current views of the world. I find it utterly immaterial propagation of Bolshevism quoted an Australian that these are views that I may share and that the views case called James v. Australia. It stated basically, that that we are attempting to restrict are views with which we have freedoms, cherished and valuable freedoms, I have absolutely no sympathy. but freedoms governed by law. Many of the things which I have castigated in the

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actions of hate laws and human rights tribunals were actually performed in the defence of my own opinions. It is the idea of forcing these views on other people with the blinding force of the law that I object to. Many objectionable statements are not pursued under any legal forum, either human rights legislation or hate literature legislation because they happen to be directed against groups and individuals that, in the current political climate, are viewed as fair game, like whites, males even smokers. If you substituted words like blacks or Jews or females for them, they would fall under existing legal provisions. Never mind any possibility that we will extend our legislation. Unless we stop it and nip the existing legislation in the bud it seems to me that were heading in a direction I dont want to see. Warren Kinsella: I agree with George in one respect. He used an important phrase. He talked about the selectivity of enforcement. And in that regard, empirically, hes correct. The provision that were talking about Section 319, sub. 2 prohibits the wilful promotion of hatred against identifiable groups. That was the product of the Cohen committee in 1965, which came on the heels of a number of well-publicized incidents of hatred and Ku Klux Klan activity and so on,

primarily in Ontario. That led to the provision that we now find in the Code. In all of that time, there have effectively been two successful prosecutions under the section. One dealt with two individuals who lived in Toronto who led a group called the Nationalist Party of Canada. And the other one, of course, is James Keegstra. So, in this respect, George is absolutely right. If you have the law, well then you have to use it when you think its appropriate. But if youre not going to use it, then get rid of the law. In the Zundel case, the Holocaust Remembrance Association vigorously lobbied Roy McMurtry, who was then the attorney-general, to charge Zundel for the publication of Did Six Million Really Die? And McMurtry deferred and deferred and deferred and eventually declined to act. So, instead, the Holocaust Remembrance Association had to use the false news provision Criminal Code Section 181, which had been on the books in British criminal law for centuries as an antiquated device actually established to prevent duelling between the nobles. The Jerwish community had no other alternatives given McMurtys decision not to use the hate promotion law. Either you use the law or you do not. And if you use

La propagande haineuse dans le code criminel Incitation publique à la haine 319. (1) Quiconque, par la communication de déclarations en un endroit public, incite à la haine contre un groupe identifiable, lorsquune telle incitation est susceptible dentraîner une violation de la paix, est coupable : a) soit dun acte criminel et passible dun emprisonnement maximal de deux ans; b) soit dune infraction punissable sur déclaration de culpabilité par procédure sommaire. Fomenter volontairement la haine (2) Quiconque, par la communication de déclarations autrement que dans une conversation privée, fomente volontairement la haine contre un groupe identifiable est coupable : a) soit dun acte criminel et passible d'un emprisonnement maximal de deux ans; b) soit dune infraction punissable sur déclaration de culpabilité par procédure sommaire. Défenses (3) Nul ne peut être déclaré coupable d'une infraction prévue au paragraphe (2) dans les cas suivants : a) il établit que les déclarations communiquées étaient vraies; b) il a, de bonne foi, exprimé une opinion sur un sujet religieux ou tenté den établir le bienfondé par discussion; c) les déclarations se rapportaient à une question dintérêt public dont lexamen était fait dans lintérêt du public et, pour des motifs raisonnables, il les croyait vraies; d) de bonne foi, il voulait attirer lattention, afin qu'il y soit remédié, sur des questions provoquant ou de nature à provoquer des sentiments de haine à l'égard d'un groupe identifiable au Canada.


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it, you do not use it selectively. So, for example, in my view, when representatives of the Nation of Islam come to Canada and preach that Jews are involved in all sorts of conspiracies and belong in the gutter and Hitler was right and so on, if thats considered hate speech, then the section should be applied against them with as much vigour as it was applied against Keegstra. Jonathan Kay: But when we talk about the issue of selectivity, we dont just mean selectivity in prosecution, we mean selectivity in the type of views that are censored. I have a quote here from a US Supreme Court case, R.A.V. v. City of St. Paul. In striking down a hate law applied to a defendant who burned a cross on a black familys lawn, Justice Scalia wrote: The only interest distinctively served by the content limitations is that of displaying the city councils special hostility toward the particular biases . . . singled out. That is precisely what the First Amendment forbids. In Canada, however, we permit this sort of viewpoint discrimination. Warren Kinsella: Well, youre being selective yourself. As I mentioned, were not the only western democracy that has reasonable limitations on hate speech. Sweden does, and so do Australia, the United Kingdom, France, Germany, South Africa, and even the United States where 35 states have statutes that enhance

sentencing provisions where there has been bias expressed during the commission of a crime. In R.A.V., the facts of the case were terrible: a black family living in St. Paul and the neighbour across the street burned a cross on their lawn. They had children and it was most upsetting. But as you say, the US Supreme Court said that the ordinance was selective. It was defeated on the basis of the First Amendment. But they did make the exception that George and I have done with respect to children, and they also talked about speech that was patently offensive, without defining it. But what you dont refer to, what you didnt raise, is their judgement the following year with regard to a more carefully-crafted statute. That case involved a group of young black men from Wisconsin who had left a screening of Mississippi Burning, the Hollywood film. And they came out and saw a young man who was white and there were epithets shouted and one of the black men said, Lets get him! and they beat him severely. And what was determined in this case was that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. This is what this present federal government in Canada did with Bill C-41, which is now Section 781 of

Hate speech in the Criminal Code Public incitement of hatred 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. Wilful promotion of hatred (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. Defences (3) No person shall be convicted of an offence under subsection (2) (a) if he establishes that the statements communicated were true; (b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.


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the Criminal Code, mistakenly seen as the gay rights Warren Kinsella: In the Canadian context, that is amendment. Really, what it did was to say as in the not the case. Were not talking about a university code Wisconsin case that if bias was exhibited in the comhere, were talking about section 319. Its been on the mission of a crime, then you can enhance the penalty. books since 1970, almost 30 years, and there have effecAnd to me, this makes sense. Spray-painting All Jews tively been only two prosecutions, successful ones. And must die on the side of a synagogue is different from there have been many, many instances where attorspray-painting a happy face on the side of some childs neys-general have refused to permit a prosecution to school. Theres an appreciable difference. take place. So that suggests to me, and Im not being Jonathan Kay: But the statutes of which you speak flippant, that there isnt exactly a traffic cop at the door dont criminalize expression. They merely provide for admitting people who are seeking the application of the increased sentencing for otherwise criminal acts. section. If anything, the reverse is true. There are many Warren Kinsella: The justices hands were bound by human rights groups in this country who feel that the the First Amendment. I dont mean to be uncharitable provision requiring the approval of the attorney-gento the eminent justices of the US Supreme Court but eral should be removed to make it easier. it seems they are attempting to do indirectly something My great concern, and its one shared by the Canathey believe cant be done directly because of the First dian Jewish Congress and others, is that if you fiddle Amendment. with the section, the law will be struck down. And then George Jonas: If youre going to burn youll have no law and you will have a gap a cross, you are engaging in an act that where theres no legal disincentive for the can be prosecuted under innumerable Keegstras and the Zundels and people headings that have absolutely nothing to like them to propagate their views and do with hate laws or free expression laws. cause disharmony and intimidate people We do not have to restrict free opinion, and so on so I think the law should historical interpretation, et cetera, in generally be left alone. order to block acts that amount to vanThe second point that Id like to make dalism, incitement to riot, or offences is that if youve got a law that has been against the public order. on the books for 30 years and its been With hate speech laws, what we have, used only twice and is subject to great at the bottom, is social engineering controversy, you should be looking at although some of it happens to be social other avenues. One that I suggest in my George Jonas engineering with which I happen to book Web of Hate is civil remedies. This agree. I would much sooner see a harmonious society seems to be the approach taken in a number of US than a disharmonious society. Its not that I disagree states where you have group libel laws. Now, there are with the purpose of the thing, but I am terrified, gengoing to be problems with that: calculating who the uinely terrified, of the methods that people employ to class is, calculating damages, and so on. But this implement them, and I am also concerned that these approach at least avoids the perception that you get weapons of social engineering usually fall into the occasionally where people feel the iron heel of the state hands of people who then social-engineer society for is crushing poor old Ernst Zundel. For me, this is somedreadful purposes. thing we should be looking at now because I think Jonathan Kay: Mr. Kinsella, I have a quote here theres a great likelihood that in a new Supreme Court, from Roger Howard of the University of Wisconsin. He a different Supreme Court, under another challenge to pioneered his schools adoption of an anti-racist, antithe section, it will be struck down. Then we will be one sexist speech code, one of the first in the United States. of the few western democracies that lacks any kind of In his subsequent renunciation of the speech code, he criminal sanction against excessive hate speech. indicated, I absolutely have come to the conclusion George Jonas: My major concern, needless to say that its better policy not to have a code. The human because Im a very selfish person, is not with poor Mr. instinct or the American instinct for censorship Zundel but poor Mr. Jonas and by extension poor Mr. is too strong. The reason I mention this is because it Kinsella. Our society is increasingly relying on the nonseems to support Mr. Jonas point that, although the criminal law: administrative law, administrative measintentions behind speech codes are often benign, they ures, human rights commissions and the myriad of always seem to be expanded by zealots to capture legitother methods none of which carry with them the imate speech. Do you have any fear that this will hapnormal safeguards of criminal law, either in court or by pen in Canada? requiring the attorney-generals permission.


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Jonathan Ka y : On this point: One of the things that a lot of people found scary about the Malcolm Ross case was that the New Brunswick human rights tribunal initially came down with four remedies but only some of them proved to be constitutional. One of the original remedies supplied by the tribunal, for instance, was the provision that Mr. Ross be barred from publishing any controversial books. This provision was later struck down. But does it not scare you, Mr. Kinsella, that a human rights commission would feel that it was in the ambit of its authority to issue such a decree? Warren Kinsella : No, it doesnt scare me. As you point out, the Supreme Court struck out that section of the tribunals decision. They said that it was overreaching, that it was disproportionate to the harm it was seeking to remedy. So does that scare me? No, I think the Supreme Court made a decision that was likely the right one in that case. Jonathan Ka y : Mr. Jonas, Mr. Kinsella has talked about the psychological effects of hate speech. This goes to the idea of psychic harm, whether on schoolchildren or on adults. Many prominent scholars on both sides of the border have suggested that hate speech creates a sort of special psychic injury something beyond the kinds of injury that ordinary words generally create. Do you believe thats the case? George Jonas: I dont know, number one. Number two: I find it utterly immaterial. Any kind of restriction on free expression could be supported by someones view of a psychic injury that may or may not exist. It is a contention that is used as a rhetorical device to support a policy position. If I were to suggest otherwise, my suggestion would also be a rhetorical device to support a policy position. But all of this is dwarfed by the following consideration. Children in school are being taught a large number of notions and doctrines, the validity of which is as questionable as the validity of the doctrines that we use as examples of hate speech. Many things are being taught to children today that in my view, and in the view of a number of other people, are utterly and completely baseless historical interpretation steeped in what Tom Wolfe called a quasi-Marxist fog. Much of it is immersed in a western revisionist history looking at the clash of a neolithic and paleolithic culture from a point of view that regards the aboriginal inhabitants of North America as being superior to European cultures. These ideas are baseless and nonsensical and unsupported by any actual evidence. Environmentalists, feminists, nativists, whatever their evidence is often just as baseless as that used by Ross and Keegstra. Now it so happens that I am much more offended by what I understand Ross views happen to be than by Marxist

academics. On the other hand, historically, the Marxist view has resulted in as much of a body count as the Nazi body count. Jonathan Ka y : If we are going to associate historical incidents and historical ideologies with modern hate movements, what is to stop the application of Canadas hate speech laws to teaching Marxist doctrine? Warren Kinsella : You have to look at the facts. And the facts are and this addresses the question you asked of George, to which he answered he didnt know that there are innumerable reputable studies that demonstrate that these expressions of hatred that Keegstra and Zundel indulged themselves have caused measurable, real harm in our era. There was a New York state governors task force on bias a few years ago that looked at nine different US cities and found that such hate activity, and I quote, leaves many individuals and families isolated, withdrawn and paranoid out of fear, or overcome by anger and revenge fantasies, or experiencing sadness and feelings of powerlessness. Closer to home, around the time that Zundel was most active, in the late 1980s, a study was done of about 200 adult Jews in Toronto over a two-year period. They were asked for their views at different intervals on how Zundels activity was affecting them. Eighty per cent of them said they felt they had experienced psychological harm, that they had felt silenced or targeted or exposed. They felt insecure and fearful. They felt angry and frustrated. They felt deep gut-wrenching agony, and so on. I would never question the reality of those feelings and neither did the Supreme Court in the Keegstra case. The court said theres empirical data to show that these people did experience measurable harm. In respect of other ideologies that are just as murderous, absolutely! I have no difficulty with that. So getting back to Georges orginal point about selectivity, I agree. We cant be selective because it engenders a lack of confidence in our approach to these very real issues. Jonathan Ka y : Thank you very much for doing this.


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