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I disapprove of what you say and Ill do my best to see that saying it is made a criminal offence. (John Mortimer, English playwright, commentator and creator of the Rumpole series on TV) If we dont believe in freedom of expression for people we despise, we dont believe in it at all. (Noam Chomsky) Freedom Bound The boundaries of hate and freedom are a contested terrain. When we negotiate the boundary of hate we are not only threading our way through a maze of malaise and venom, we are weaving the very pattern of what is allowed in our society. We are obliged to balance the standards of freedom of speech and responsibility against a reasonable limit justified by a democratic society because we must define the limits of what is acceptable and what is not. Moreover, we must decide what kind of society will be built in these boundaries, do we want a diverse society which embraces differences or do we want one in which only one perspective is allowed.
The boundary between private and public is one threshold where acts of hate can become not only offensive but also illegal. As David Price argues, conduct becomes prohibited when the threshold is crossed and private choice encroaches upon public domain. For example, a privately held belief or opinion can become hate propaganda when it is publicly expressed. This expression of hatred begins an examination of dignity and why is it so important to a diverse society.
For without a group enjoying diana amongst the community they begin to lose status and start to slip away becoming outsiders. The goal of hate propaganda is to strip the diana of a group, generally a minority, and warp the public perception into despising this group. Hate allows for a homologous society where there is no protection against such attacks. The solution to this is various pieces of government legislation at all levels of government. However, not just legislation can fight hate, education is another weapon for a diverse society but this paper will only focus upon the effects legislation. As far as a balance must be struck as mentioned above, it must be maintained upon the pinnacle of what can be done and should be done in regards to government intervention.
James Keegstra is an example of what can be done to battle hate and build a diverse society. At the same time, an argument can be made that the government went up the wrong path in pursuing justice. Perhaps the best course of action might have been just to remove Keegstra from teaching and as Mayor, and realize this: yes, it is immoral but no, it should not be illegal. However, this was not the course of action and perhaps without the court case, the dignity of the oppressed would not have become an issue. The next case certainly was not the way to achieve diversity. Doug Collins five-year battle with the BC Human Right Commission was suppose to be about anti-Semitism and other racial issues.
Instead, its true rational was to see whether we should bow down to the dogma of all Human Rights commissions, or to the freedom of the press. As well for the first time a journalist was brought up on charges and faced a Human Rights Tribunal. Without a free press how can we live in a free society where the free flow if an idea is one of the bases? A diverse society that can not enjoin in dialogue with others does not make a free society, nor for much longer is it diverse. If these two cases are the Ying / yang of hate legislation and both effect diversity in such different ways then what is to be done? The answers can be found in an acceptance that hate is found to run very deep in human nature and society and solutions can be found.
Firstly, that if a diverse society is truly desired then it must follow that hate must be frowned upon but accepted. Second, society must realize that if legislature against hate literature works then the hate is so insignificant as not to warrant the legislation. Third, if legislation will not successfully treat hate then we have needlessly damaged our political principles and practices through the legislation itself. Finally, in constructing such legislation we have managed thereby to hide the most effective, visible symptom of a serious social problem in our midst. The mere suppression of hate will not solve the problem at hand merely conceal it. A better solution would be legislation dealing with the true source of hate: the people themselves via education in creating a diverse social climate in which all views can be held.
Dignity The concept of dignity is at the very heart of social diversity. Within dignity are the concepts of personal worth, community standing, and respect of ones peers. Thomas Hobbes expressed in Leviathan that: The value of a man, or worth, is as of all other things, his price; that is to say, so much as would be given for the use of his power: and therefore is not absolute; but a thing dependent on the need and judgement of another. Hobbes was referring that others esteem the value of a man not himself. This relates to dignity by how one is judged by his fellow man in the standing of himself and others. Furthermore, Hobbes goes on to define dignity as: The public worth of a man, which is the value set on him by the commonwealth, is that which men commonly call DIGNITY.
And this value of him by the commonwealth, is understood, by offices of command, judicature, public employment, or by names and titles, introduced for distinction of such value One hundred and fifty years later, Immanuel Kant approached dignity as not public worth but as human dignity. Kant shaped his definition as the idea of the dignity of a rational being, which obeys no law except that which he himself also gives. Moreover, Kant goes on to say that: In the realm of ends, everything has either a price or a dignity. Whatever has a price can be replaced by something else as its equivalent; on the other hand, whatever is above all price, and therefore admits of no equivalent, has a dignity.
If diversity is to be achieved then we cannot infringe upon a persons dignity in either Hobbes or Kant's versions. Instead, effort must be made to ensure that dignity of a person or group is not affected. Hate Propaganda The message of hate in all of its various forms acts as a catalyst to prevent Canada from becoming a modern diverse society. Hate literature presents a great challenge to our value of free expression.
Its offensive content often constitutes a direct attack on many of the other principles that are cherished by our society. Tolerance, the dignity and equality of all individuals; these and other values are all adversely affected by the propagation of hateful sentiment. By allowing the propagation of such hatred to Canadians, the very right of a minority to be heard is undermined. The problem is not peculiarly Canadian; it is universal. Wherever racially or culturally distinct groups of people live together, one finds people, usually a small minority of the population, who take it upon themselves to denigrate members of a group other than theirs. Canada is no stranger to this conduct.
Our history is replete with examples of discriminatory communications. In their time, Canadians of Asian and East Indian descent, black, and native people have been the objects of hate propagation. The evil of hate propaganda is beyond doubt. It inflicts pain and indignity upon individuals who are members of the group in question. Insofar as it may persuade others to the same point of view, it may threaten social stability.
Finally, hate strips an individual of his personal dignity and self-worth, allowing him to be silenced against a chorus of hate-mongers. For these reasons, the government has created legislation in the form of the Criminal Code of Canada, Canadian Human Rights Commission, and ultimately the Charter of Rights and Freedoms as solutions. While Canada does have laws and commissions to fight hate propaganda and protect the rights of minorities a discussion must ensue of what is lost to gain this protection. The right of free expression is enshrined into the Charter of Rights and Freedoms of Canada so how can this right be abrogated for the rights of the minority? An examination of the James Keegstra Supreme Court cases reveals those answers. R.
v. Keegstra One of the most delicate balancing acts in a democratic society is to safeguard freedom of expression while minimizing the very real risks posed by hate propaganda that harm or threaten to harm. The case of James Keegstra demonstrated that what is permissible and what is not is a wide gulf. What one group or individual might regard as offensive might be considered by other groups or individuals to be an article of faith, a philosophical conviction, a political opinion, or even an innocuous form of entertainment.
James Keegstra was a high school teacher in Eckville, Alberta from the early 1970 s until his dismissal in 1982. At the time of his dismissal from teaching, Keegstra was the Mayor as well. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as treacherous, subversive, sadistic, money-loving, power hungry and child killers.
He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews created the Holocaust to gain sympathy and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams.
If they failed to do so, their marks suffered. Of interesting note, that bears investigation but not here, is that why it took the school board and town government 12 years to notice what Keegstra was teaching? In 1984, Keegstra was charged under s. 319 (2) (then s. 281. 2 (2) ) of the Criminal Code with unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. A jury in a trial before the Alberta Court of Queens Bench convicted him. The decision to convict Keegstra was handed down by Judge Quigley of the Alberta Court of Queens Bench ( (1984), 19 C.
C. C. (3 d) 254), his decision is as fellows: ... it is my opinion that s. 281. 2 (2) [now s. 319 (2) ] of the Code cannot rationally be considered to be an infringement which limits freedom of expression, but on the contrary it is a safeguard which promotes it. The protection afforded by the proscription tends to banish the apprehension which might otherwise inhibit certain segments of our society from freely expressing themselves upon the whole spectrum of topics, whether social, economic, scientific, political, religious, or spiritual in nature.
The unfettered right to express divergent opinions on these topics is the kind of freedom of expression the Charter protects. The fundamental argument presented here is that the dignity of a person or group cannot be attacked as it promoted a fight or flight symptom. Moreover, flight takes away the freedom of expression by creating a hidden people who will not fight for their freedoms. Thus, a nation that wants a diverse society must create laws that will protect people from becoming hidden outsiders in their own country. Furthermore, Judge Quigley held that: persons maligned by hate propaganda may respond aggressively and be stripped of their sense of personal dignity and self-worth, while those whom the hate-monger seeks to influence are harmed because it is beyond doubt that breeding hate is detrimental to society for psychological and social reasons and that it can easily create hostility and aggression which leads to violence (p. 273). In light of these harms, Quigley saw s. 319 (2) as a rational means of preventing real and serious damage to both individuals and society generally.
Moreover, he felt that the various restrictions and defences built into s. 319 (2) ensure that it has a very minimal effect on the over-all right of freedom of expression (p. 274). In Quigley's view, the balance struck between free expression and the broader interests of social cohesion and the common good thus justified s. 319 (2) as a reasonable limit to s. 2 (b) under s. 1. Quigley's view led to Keegstra to appeal to the Alberta Court of Appeals, which in turn, overturned Quigley's decision thus leading to a crown backed Supreme Court appeal. The Supreme Court held that the Criminal Code does take away peoples freedom of speech because it does not let them say things that encourage others to hate people because of their race, colour, religion or ethnic origin. Chief Justice Dickson looked at Section 1 of the Charter of Rights and Freedoms; the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 1 of the Charter means that a law which limits free speech is okay so long as its a reasonable limit on free speech, and the limit is justified in a free and democratic society.
The Supreme Court said that there are a number of reasons why limiting hateful speech makes sense. Hate propaganda harms all of us. Stopping the spread of hate propaganda makes it easier for people with different backgrounds to live together. Stopping hate propaganda may even reduce violence in Canada.
For these reasons, the Supreme Court said that section 1 of the Charter of Rights and Freedoms saves the crime of willfully promoting hatred. In other words, the Court said Keegstra had broken the law. Although the law limits his right to free speech, it is a reasonable limit. Democratic societies must stop the spread of hate propaganda so everyone can live freely. The Supreme Court has provided a number of guidelines in when the state can break the law'; for example, with respect to obscenity (R. v.
Butler; 1992) and hate propaganda (R. v. Keegstra; 1990). In general, while the government can decide when to break the law it begs the question of should enforce the law. In a democratic society that values freedom of speech, the goal with the likes of James Keegstra or an Ernst Zundel should be, not to muzzle them, but to marginalize them.
The law should let them speak but the culture should ensure that they lack the influence to persuade. Fortunately, in our society now, these men are already devoid of influence: they amount to little more than a trivial irritation. Although they may have become well known, their notoriety is more attributable to the efforts of those who seek to silence them than to those who wish to follow him. Ironically, if it had not been for their prosecution, few people would ever have heard of them. In any event, with or without the publicity, their diatribes have assured the universal contempt of Canadians.
While we must be ever vigilant about such characters, they do not warrant the serious risks to freedom of speech that is triggered by the current case. However, if attention is not needed how does this effect social diversity. Do we need government legislation in whatever form to promote diversity? Moreover, what about actions taken on behalf of minorities that might well have enough power on their own. This seems to be the case in British Colombia where Bill 33 has brought about protection for everyone from everything.
Doug Collins Bill 33 (1993) brought about change to BCs Human Rights Act including for the first time newspapers and other publications in the acts discriminatory publication provision. Doug Collins, a now retired North Shore News columnist, was brought up to BCs Human Rights Commission on charges for writing a column headed Hollywood Propaganda. In which Collins said that the six million holocaust figure was inflated, that the Jewish influence in Hollywood was predominant, and that the movie Schindler's List should have been called Swindlers List. Doug Collins is of course a journalist and supposedly protected by the very same Charter of Rights which allowed the conviction of James Keegstra. Collins, unlike James Keegstra was not entrusted with the education of the young.
He was not even an employee of the state. So long as he avoided libeling anyone, using obscene words, or falling into one of the other small and well-established exceptions to the rule of free speech, he ought to be free to say what he likes, no matter how asinine. In addition, if he can find a publisher whose standards are low enough, he should be free to publish those views. However, not true in British Columbia, though.
Despite drawing support from the press and civil liberties groups, Doug Collins was convicted after four years of investigation. The British Columbia Civil Liberties Association strongly condemned BCs Human Rights Tribunals decision, saying that it fears for the future of freedom of expression as a result of (the Collins) decision of the BC Human Rights Tribunal. The groups president warned such restrictions of free speech drive hatred underground where it festers unchallenged by evidence or rational argument. In support of this view, the Supreme Court of Canada previously had ruled in 1938, when it struck down the Alberta Press Act, that: Freedom of discussion is essential to enlighten public opinion in a democratic state.
It cannot be curtailed without affecting the right of people to be informed, independent of government, concerning matters of public interest. There must be untrammeled publication of news and opinion. It stated further that if the Social Credit law were allowed to stand, the So Cred doctrine would become a kind of religious dogma that the people would buck at their peril. It is this threat of dogma, which is most apparent in Collins case. If we take the truth of the situation, the codex of BCs Human Rights Act is not to be bucked, even at the cost of a free and questioning press. Without the protection of a free press how can open discourse come about in public debate.
The media is often referred to as the fifth estate and with the duties of watchdog over government with the freedom to report the doings of government back to the people. Nonetheless, without the protection of a free press those in the minority have no protection against unscrupulous harassment. This leads to the loss of dignity that is so important in maintaining a visible, functioning group. Furthermore, this loss of dignity begins what the Supreme Court wants stopped: specifically, the erosion of one group by hate propagation. Dangerous Ideas Diverse societies build a balance between hate and freedom, individuals and groups, and map the boundaries not as inflexible walls but as guidelines. They respect the diana of a small group compared against that of the majority.
In the same light, the government must respect the dignity of the people in making choices that may offend others and not limit them by legislature. The Keegstra and Collins cases illustrate the myriad difficulties in prosecuting hate based crimes either through the courts or Human Rights tribunals. In addition, what was accomplished through this process? Keegstra was rightly removed from teaching and his mayor office, but that only took a few months to accomplish. Prosecuting him for his crime took ten plus years and two trips to the Supreme Court and for what a few thousand dollars in fines. In Collins we the people lost the protection of the press for what seems to be the absolute power of a Human Rights Tribunal which does not hold that the rule of law is true concerning their procedures.
Can a society, which wants diversity, allow the suppression of hate in a free society? Does not a free exchange of ideas promote a diverse society? Hate literature represents only one form among many ideas alleged to be dangerous, indecent, or offensive, either in their form or content, as to require suppression. The temptation to suppress ideas is always very great; hate propaganda provides an even greater and perhaps more understandable temptation because it presents itself to us as so wrong, as to seem to lie beyond any free press protection. Thus, many people are led to argue that this material ought properly to be suppressed, and legislation to accomplish that end should be enacted. Reasonable though such suggestions may sound, it should be remembered that while people can rightly authorize their government to ban many acts deemed harmful; however, it never should allow its government to serve as censor, except in well-defined areas.
A peoples political freedom is not divisible; especially is it not divisible into the dangerous and non-dangerous, even less is it divisible into the offensive and non-offensive. That is what it means to be free. Selected Bibliography [ 1990 ] 3 S. C. R. R.
v. Keegstra. Lex U. of Montreal. December 1, 1999 Doug Collins, The Article that Started if all! , North Shore News. December 7, 1999 Thomas Hobbes, Leviathan.
In Ethics: Selections from Classical and Contemporary Writers edited by Oliver A. Johnson. Riverside: University of California, 1994. Immanuel Kant, Foundations of the Metaphysics of Morals. In Ethics: Selections from Classical and Contemporary Writers, edited by Oliver A. Johnson.
Riverside: University of California, 1994. Murray Mulland, BCLA, December 7, 1999 David Price, The Role of Choice in a Definition of Obscenity. Canadian Bar Review 57 (1979): 301. 33 a
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