The War Of Freedom Of Expression Essay

, Research Paper

The War of Freedom of Expression

“Taking on anti-Semites and Holocaust deniers in the sanctified

courtroom environment is like responding to someone who calls your mother

a prostitute. By defending you raise the question that maybe she really

was”

Anonymous source drawn

from Weiman and Win,

1986.

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

an absolute right . On November 5, 1984, Mr. Justice Quigley of the Alberta

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

opinion.”

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

fascism.”

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.