Should hate speech be a crime?

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Date: Spring 2004
From: Queen's Quarterly(Vol. 111, Issue 1)
Publisher: Queen's Quarterly
Document Type: Article
Length: 4,215 words

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On television screens across the nation, millions of Canadians watched Ernst Zundel and James Keegstra making their way through the media throng, each ready for his much awaited day in court. But "day in court," when referring to these two cases, should more properly be recast as "days, months, and years in court." The Canadian justice system has devoted much time and energy to stifling the hateful speech of these individuals, and others like them. But, in doing so, have we been stifling our society's ability to deal effectively with the very hate that threatens us?

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WE HAVE been witnessing in Canada a fairly significant change in attitude about speech. The distinction between talk and action has almost disappeared. People are now offended by words. The change in attitude began as an effort to protect the weak; people who were offended by words saw themselves as protecting those too weak to protect themselves. They were weeding out hateful and hurtful ideas-racist ideas, sexist ideas, homophobic ideas. They wanted to try to make Canada a nicer place in which to live. To quote Jonathan Rauch,


  Somehow the idea that "liberal" means "nice," that the liberal
  intellectual system fosters sensitivity, toleration, self-esteem,
  rejection of prejudice and bias, found favour. That impression is
  totally misguided. The truth is that liberal science demands
  discipline as well as license, and to those who reject or flout its
  rules, it can be cruel. It excludes and rejects as well as tolerates.
  It thrives on prejudice no less than on cool detachment.... It allows
  and sometimes even encourages offence. (1)

But how do we decide or determine the right standard for distinguishing the few true beliefs from the many false ones? (2) Rauch sets up five decision-making principles in contention today.

[square] The Fundamentalist Principle:

"Those who know the truth should decide who is right."

[square] The Simple Egalitarian Principle:

All sincere persons' beliefs have equal claims to respect.

[square] The Radical Egalitarian Principle:

Like the simple egalitarian principle, but the beliefs of persons in historically oppressed classes or groups get special consideration.

[square] The Humanitarian Principle:

Any of the above, but with the condition that the first priority be to cause no hurt.

[square] The Liberal Principle:

Checking of each by each through public criticism is the only legitimate way to decide who is right. (3)

The last principle, the only acceptable one for me, has been abandoned for another principle-that people who hold wrong and hurtful opinions should be punished as criminals for the good of society. This most dangerous principle has now been established as a social right or, as Rauch puts it, "Thou shalt not hurt others with words." Ten years ago, Rauch believed that this principle was a menace--not just to civil liberties, but to everyone's liberal inquiry, a principle to create a society where the primary rules are: be nice, think nice, say nice.

THEN CAME a defining moment. In February of 1989, fundamentalist Muslims rose up against the British writer Salman Rushdie, who had written a novel which they regarded as deeply, shockingly offensive to Islam's holy truths and to the Muslim community. The Ayatollah Khomeini proclaimed that it was the duty of all good Muslims to kill the writer.

Quite a few people thought that the death penalty was bad, and that Khomeini should not have done that-but that Rushdie certainly did write a book which was offensive to Islamic truths, and he should not have done that either. The chief rabbi of Great Britain said that the book should not have been published. He said that both Mr Rushdie and the Ayatollah had abused freedom of speech. That was the sense in which the Rushdie affair was a defining moment. It showed how readily Westerners could be backed away from a fundamental principle of intellectual liberalism, namely that there is nothing whatever wrong with offending-hurting people's feelings in pursuit of what a person believes to be the truth.

The Canadian idea today, that freedom of speech is not the right to insult a community, could have come from the mouths of those Muslims who insisted that Salman Rushdie be punished. It is important to see that Khomeini was acting in the cause of principle: that you are not entitled to hurt me or others with words or ideas.

That principle has led to the rapid rise of hate crime laws. The underlying principle is this: people who cause grave offence have committed a crime, not just a wrong, but a criminal wrong-a wrong whose punishment could be incarceration, a loss of liberty. To quote Rauch again:


  Its strong moral traction tugs at anyone who cares about others and it
  has a wonderful moral clarity: Thou shalt not hurt others with words.
  That precept looks harmless, even admirable. Yet as the concern not to
  offend ascended the ethical scale from good manners to social
  imperative, a long familiar side effect was ascending with it. If
  hurting people with words is wrong then the people who commit the
  offence must be called to account. And called to account they are, by
  offended people and sympathetic authorities. (4)

In February 1985, Ernst Zundel, a Toronto writer and publisher, was acquitted on a charge of spreading false news by alleging the existence of a world conspiracy by Zionists, communists, and bankers. In January 1898 at the instance of the French Assembly, Emile Zola, writer, was charged and later convicted for defaming the military leadership of France in his historic defence of Captain Alfred Dreyfus in the pamphlet "J'Accuse." In January 1978, John Kingsley Read, chairman of the British National Front, was acquitted on a charge of inciting racial hatred after he referred to various groups of immigrants as "niggers," "wogs," and "coons," and referred to the death of a young Asian as "one down, one million to go."

As a Jew, I know we must never forget the horrors of the Holocaust. The world must never forget the Holocaust. But there is more than one lesson in history, and these three cases teach another lesson--that, as painful as it may seem, criminal prosecution of hate mongers in the criminal courts is not the appropriate means by which we may prevent their vile filth from being disseminated. Indeed, it presents far more danger to Jews and to all freedom-loving people than to the persons to whom the laws are directed.

What I felt when listening to reports of the testimony during the Zundel trial--with revisionist "historians" describing the Auschwitz death camp as a recreation centre with swimming pools and dance halls-must pale in comparison to what the survivors feel when they hear or read such obscenities. But the painful experience of the Zundel trial has reinforced my view that such criminal prosecutions are wrong and that Jews should be in the forefront in urging that there be no similar prosecutions in the future. We should, in fact, have demanded that the false news sections of the Criminal Code be repealed, that the hate propaganda sections of the Criminal Code be repealed. I suggest that the lesson of history is that criminal prosecution of hate mongers like Zundel benefits only them, and laws that permit such prosecutions inevitably are abused and turned against those very persons whom they were designed to protect. Let me demonstrate, using the example of Zola's experience.

IN 1873 there was a severe economic crash in France and, as so often happens in history, the Jews were singled out as the cause of the crisis and of the deprivation that followed. In fact, the crash resulted from the disastrous Franco-Prussian war, but certain Jews were identified as being among the speculators blamed for the economic downturn. A wave of anti-Semitism washed over France, led by the anti-Semitic leagues and persons such as Edouard Drumont. This barrage of hate reached a fever pitch following the treason conviction of Captain Dreyfus on perjured testimony supplied by the French military establishment.

There existed in the France of the day a group defamation law like our hate propaganda legislation, but there was no prosecution of Drumont or of the other anti-Semites. The only prosecution to arise out of the Dreyfus affair was that of Emile Zola and his publisher, Georges Clemenceau, later premier of France, for defamation of the French military leadership. Aryeh Neier has observed: "When a government enjoys the power to suppress defamatory statements or to punish those who make them, a Zola is as likely as a Drumont to become the target. In other words, group defamation laws can as easily become the tool of the oppressor as the shield of the oppressed." (5)

The other lesson of the Zola-Dreyfus affair is that the law can be abused and manipulated--that freedom of expression may in the end be the one instrument the oppressed have to shield them. Whatever vindication there was for Captain Dreyfus came as a result of "J'Accuse" and the ability of the supporters of Dreyfus to expose the injustice that had been done. But those who favour such hate legislation and the prosecution of Zundel and his like in Canada propose two counter-arguments. First they point to the experience of the Weimar Republic where a free and democratic society was subverted by the Nazis whose anti-Semitic propaganda went unchecked and unpunished. Secondly, they argue that Canada is not France of the nineteenth century, that the same thing cannot happen here in the twenty-first century, that we respect freedom of expression too strongly to permit these laws to be abused and subverted.

I will deal with these issues, but it is necessary to digress briefly into a discussion of freedom of expression and its meaning and philosophy. There is no theory of freedom of expression that seeks to protect what the Zundels of the world publish because of its intrinsic value. As the late Rabbi Meir Kahane put it, "What person has the right to demand that others be put into ovens?" Or, as one writer has expressed it somewhat more eloquently: protection of free speech is designed to protect the community from "... official suppression of valuable ideas--ideas of conceivable truth, ideas deserving close consideration." Anyone who values the right to speak out against injustice, to protest anti-Semitism, in fact to preserve the memory of the Holocaust should view with fear the prosecution, even the partially successful prosecution, of Zundel. After all, what will be the remedy fifty years from now, when there are no survivors among us to prove in a court the truth of the Holocaust when someone is prosecuted for defaming the German people by saying that it happened?

In a free and democratic society it is more freedom of expression and more freedom of speech that form the most effective weapon against the hate mongers.

Now let us go back to the Weimar Republic and the first argument of the proponents of hate laws. There are many complex reasons for the rise of nazism in post-World War I Germany and for people's attraction to its message of hate. It is not for me to attempt to explain what happened--how a republican form of government could be overthrown in a few short years, setting the stage for the horrors of Nazi Germany. However, one thing is clear: the lesson of Weimar Germany is that prosecution of the hate mongers is neither protection against anti-Semitism nor the means of stopping proliferation of their ideas in a society that is ripe for belief in their lies.

Pre-Hitler Germany did have group defamation laws like the hate propaganda provisions of the Criminal Code. There were prosecutions of Nazis for anti-Semitic speech; during the fifteen years before Hitler came to power, there were more than 200 prosecutions based on anti-Semitic speech. And, in the opinion of the leading Jewish organization of that era, the authorities mishandled no more than 10 per cent of all the cases between anti-Semites and Jews. We are all witnesses to the ultimate impact of these prosecutions on the fabric of a free society.

Let us look now at the second argument of those who would see the law as the panacea for the evil that the hate mongers have wrought. This is the "it can't happen here" response--that Canada, like the United States, is a free and democratic society that would never abuse nor subvert the laws and turn them against those persons they are designed to protect.

Let us look at the Canadian experience. First, the hate propaganda provisions: these provisions were enacted in response to the report of the Cohen Committee. That committee documented hate literature directed at Jews, Catholics, blacks, and immigrant groups, and it was presumably to protect these groups that the laws were put in place. So what is the experience of hate propaganda legislation in Canada? Prior to the case of James Keegstra, which I will address later, charges were laid against a group of students who were carrying signs reading "Yankee go home" in protest of a Shriners' convention. Is that a fair application of the law? Is that the evil to which the law was directed or rather an unconscionable subversion of its purpose? Those charges were ultimately withdrawn after the students had spent some time in jail, and when the attorney general refused to consent to the prosecution.

But the case in which a conviction has actually been recorded is that of Robert Buzzanga and Jean Wildred Durocher--two ardent French-Canadian patriots deeply distressed over the repeated failure of the Essex County School Board to build a French-language high school. Strong opposition to the school emanated from a group of narrow-minded but highly vocal rate payers whose letters were published in the Windsor Star. The letters were scurrilous and perhaps even defamatory of the French-speaking minority in Essex County and the French-speaking population of Quebec.

Were these people prosecuted? Certainly not. Incredibly, Durocher and Buzzanga were prosecuted after they published a satirical pamphlet filled with anti-French propaganda in an attempt to force the issue and dramatize the situation. So they, two proud members of the French-speaking minority, were charged with promoting hatred against an identifiable group--the French-speaking minority in Essex County. The prosecution, in my view, was a perversion of the law. When the Court of Appeal overturned the conviction because the judge had not properly considered that the promotion of hatred must be "wilful," the response of various pressure groups was to argue that this requirement should be removed and that the need for the attorney general's consent should be removed. For what? In order that Buzzanga and Durocher could have been convicted? Or that the anti-American students could have spent more time in jail? We are so smug here in Canada, and yet the very recent experience of the use of this legislation should demonstrate the grave potential for abuse.

THERE is another more immediate reason why criminal prosecution is the wrong weapon against Zundel and Keegstra and their kind--and that flows from the inherent nature of the criminal trial process.

It is the nature of the criminal trial that it captures the imagination of the public--enormous media resources are devoted to coverage of the pre-trial proceedings and the trial itself. It is not hard to see why--the stakes are so very high. The state seeks vindication of a wrong, while on the other side the liberty of the subject is at risk. The issue is not merely money, nor reputation--the criminal trial is the formal arena where the state justifies the taking away of the freedom of one of its citizens. With few exceptions, the public remembers only the great criminal trials--rarely does even a million-dollar civil suit attract more than cursory attention. As a result, when Ernst Zundel or Jim Keegstra are charged it is in the very nature of things that there be media attention.

Now it might be argued that media exposure is a good thing--that these hate mongers should be exposed for what they are and properly vilified--but is that what in fact happened? The stakes are so high in the criminal trial that it attracts special rules--the sub judice rule that prevents adverse publicity which could prejudice the accused, the rule that the case must be proved beyond a reasonable doubt and, most importantly, the right of the accused to make full answer and defence. As soon as Ernst Zundel is charged, the same state that prosecutes him also wraps him in a protective blanket designed to ensure that he has a fair trial.

I earlier described Zundel as "a Toronto writer and publisher." I have done this on purpose. That is how he was described in the Canadian media during the trial. The media has been criticized for its coverage of the trial--for appearing to lend credibility to Zundel and his arguments, and respectability to the outrageous cross-examination of his lawyer, Doug Christie. Manuel Prutschi referred to a Globe and Mail headline that read "Lawyer challenges crematorium theory" as one that "would live in infamy." I too was upset with the press coverage--but what did we expect? I have grave doubts that the Zundel trial could have been covered by the media in a substantially different manner. The protections that our criminal trial process gives the accused person are specifically designed to ensure that he enters the trial with his reputation intact, free of the verbal criticism he may deserve.

But more important is that in the trial proper, the case must be proved beyond a reasonable doubt and the accused permitted to cross-examine, call witnesses, and otherwise make full answer and defence.

JAMES KEEGSTRA, (6) an Alberta high school teacher who taught from the early 1970s until his dismissal in 1982, was charged in 1984 with unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. He attributed various evil qualities to Jews. He described Jews to his pupils as "treacherous," "barbaric," "subversive," "sadistic," "materialistic," "money-loving," "power hungry," and "child killers." He taught his classes that Jewish people seek to destroy Christianity and are responsible for economic depressions, anarchy, chaos, wars, and revolutions. According to Mr Keegstra, Jews "created the Holocaust to gain sympathy." They were deceptive, secretive, and inherently evil. He expected his students to regurgitate these notions in essays and examinations. If they did so, they got good marks. If they did not, their marks were poor.

In Canada, removing him from the classroom was not good enough. He had to be charged with wilful promotion of hatred--labelled a criminal--and jailed. His case was in our criminal courts for a decade.

Although Mr Keegstra was charged in 1984, he mounted several Charter of Rights attacks in the Alberta Court of Queen's Bench against the constitutionality of the offence of unlawfully promoting hatred against an identifiable group, arguing that the charges violated section 2(b) of the Charter--i.e., freedom of expression--and also section 11(d)--the presumption of innocence caused by the reverse onus on the accused contained in the truth defence. The accused is allowed to show that he is not guilty by relying on the truth as a defence. These applications were dismissed, and he was tried and convicted by a jury and sentenced to a $5,000 fine. Mr Keegstra then raised the same Charter issues on appeal, where he was successful, and the section was declared unconstitutional. The Crown appealed to the Supreme Court of Canada, and the Alberta Court of Appeal decision was reversed on 13 December 1990.

The Supreme Court remitted the case back to the Alberta Court of Appeal for determination of issues that were not originally dealt with because of the constitutional rulings. In supplementary reasons reported in 1991, the Alberta Court of Appeal quashed the accused's conviction and ordered a new trial on the basis that the trial judge had erred in not allowing the accused to challenge potential jurors for cause on account of the significant pre-trial publicity. The new jury began hearing evidence at a pre-trial on 9 March 1992. This trial lasted four months. Twenty witnesses were called, 17 of whom were former students of Mr Keegstra. He was again found guilty and received a sentence of a $3,000 fine. He appealed that conviction, and that appeal was decided on 7 September 1994. For 10 years, Mr Keegstra was before the courts, and for what?

In the cases of Ernst Zundel and Jim Keegstra the Canadian courts provide a free platform for the spewing of their lies and hatred. I am not the first person to point out that the prosecution of Zundel brought him out of the obscurity he so rightly deserved and thrust him into national and even international prominence. Apparently, Zundel made all of $500 after spending years distributing the pamphlet "Did Six Million Really Die?"--I think that says something about the impact of his publications. But in February 1985 he received millions upon millions of dollars worth of free publicity. The courts provided him with the absolute right to prove that the Holocaust did not occur, and the media gave him the means of distributing those lies on a silver platter to millions of people. The Zundels of this world try to provoke the government into using repressive measures. They rejoice--as the American Nazis did in Skokie, Illinois, in the 1970s--when their rights are denied them; they want repression to win them sympathizers. They are intentionally provocative--they have the ability to attract attention and very much want to trap their adversaries into making public statements that will be reprinted in the press. As one CBC producer aptly put it: "If the courts gave Zundel a platform, the media gave him a bull horn." He obtained publicity out of all proportion to the size of his movement.

We must have rules to govern the criminal process, rules that apply to everyone, and yet it is those very rules that work against prosecution of the hate mongers.

Where was the clear and present danger if Zundel was left to wallow in the squalor of his falsehoods, preaching to the fringe element of society? Was Zundel exposed as a "racist and a fraud"? If Zundel was exposed as a racist and a fraud as a result of the conviction, what are we to make of the acquittal on the Zionist conspiracy count? This was the big lie upon which Hitler founded the Final Solution and the Holocaust that followed.

In any event, all that the jury's verdict in the conviction means is that on a certain day, in the City of Toronto, twelve people were satisfied beyond a reasonable doubt that the Holocaust happened and that Zundel knew it happened--it means nothing more. It is a finding that has absolutely no precedent value. If five years from now, or even tomorrow, one of Zundel's followers is charged--or even if Zundel himself is charged again--there will be the same spectacle. If it was a victory when Zundel was convicted, it was a short-lived one, and it established nothing of lasting significance.

And that brings me to the final point on the use of the Criminal Code-it is simply not the vehicle for proof of historical facts. The whole criminal trial process is geared to prove that on a particular day, at a particular time, an accused person did something. It is not designed to adjudicate on great questions of history. We impose the highest standard of proof known in law on the prosecution--proof beyond a reasonable doubt. Maybe proving the reality of the Holocaust was easy on that score--but then what of the Zionist conspiracy? And as time passes it is simply not going to be possible to prove matters for which, even now, the witnesses are fast disappearing. Do we really need juries to reaffirm the Holocaust, or any historical fact? Is the memory of the horror of Hitler's Germany so dim in the minds of Canadians that we must seek reassurance in the verdict of a jury--and take the risk of an acquittal?

The reality is that the Zundel case is not truly about whether or not the Holocaust happened--that is simply the cloak of pseudo-historical fact in which he wraps his intolerance, his anti-Semitism, his sickness, to give it some semblance of legitimacy. To challenge Zundel on the Holocaust is to meet him on his own terms. The evil is that some ordinary people--decent Canadians forty or fifty years removed from the events of Nazi Germany--will begin to believe the lies, will harbour doubts, and again the fires of anti-Semitism will be stoked. And if this is the real evil then surely it is counterproductive to provide, free of charge, the platform for espousing such views through the legitimate media, so that they almost take on an air of respectability.

INDIVIDUAL LIBERTY is what will allow Jews to survive with some degree of certainty. I believe that no one should be punished for the beliefs he or she holds or the opinions that he or she states, because to believe incorrectly should never be a crime, and criticism--however unpleasant--is never violence. We must put up with criticism at any time. As Rauch puts it, "... we have a positive moral obligation to be thick-skinned." (7) And I agree with him that no hypothesis should ever be laid to rest by suppressing it, as the only way to kill a bad idea is by exposing it and trumping it with better ones. (8)

We must extend freedom of speech not only to those with whom we agree but to those whom we hate.

Notes

1 Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought (Chicago: University of Chicago Press, 1993), p. 19.

2 Ibid., p. 5.

3 Ibid., p. 6.

4 Ibid., p. 26.

5 Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (New York: E.P. Dutton, 1979), p. 106.

6 Regina v. Keegstra (1991), 61 C.C.C. (3d) 1 (SCC), p. 1.

7 Rauch, Kindly Inquisitors, p. 159.

8 Ibid., p. 161.

EDWARD L. GREENSPAN, QC, is the senior partner of the criminal law firm of Greenspan, White, in Toronto. This paper is a portion of a lecture delivered at the Irving and Regina Rosen Public Lecture Series at Queen's University on 20 January 2004.

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Gale Document Number: GALE|A116346793