In Defense of Free Speech…

By: Contributor · July 28, 2008 · Filed Under Civil Rights, Constitutional Law, Diversity in Law, Legal Reform, Politics, Privacy · 5 Comments 

On June 28 2008, the Canadian Human Rights commission dismissed the complaint against Maclean’s magazine (Rogers Media) concerning an article by Mark Steyn, and rightly so. (The complainants held that the article, among others, established a pattern of discrimination, and following repeatedly rebuffed attempts to respond in Maclean’s magazine, felt compelled to bring further action).

As many of you are aware, one article, “The Future Belongs to Islam”, is an opinion piece in which Steyn employs demographic information to support his opinion that the future of the Western world is in peril/doubt because of the spread of Islam.

While I am not a fan of Mark Steyn’s “neoconservative” ideology, as a self-described left-of-center civil libertarian I am certainly a fan of freedom of expression. Even if you do not agree with his arguments, he should have the right to express them without remaining worryingly susceptible to the retributive power of the state.

In fact, if it is held necessary that a body is to rule on the acceptability of certain speech, in order to protect vulnerable groups, the bar should be set exceedingly high. And according to previous rulings, the Supreme Court agrees. From the recent Maclean’s decision:

“The Supreme Court of Canada ruled in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that this legally prescribed limitation of fundamental Charter rights [Section 13(1) of the Canadian Human Rights Act] was reasonable and justifiable, but warned that caution and restraint would be required in the application of the section so that the limitation on free speech would be minimized to the greatest possible extent.”

From Taylor:

“The guarantee of freedom of expression is not unduly impaired by s. 13(1). The section is not overbroad or excessively vague. Its terms, in particular the phrase “hatred or contempt”, are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament’s objective. The phrase “hatred or contempt” in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification…”

The test was whether Steyn’s writings were so extreme and malicious in nature as to elicit hatred or contempt against the subjects:

“The court interpreted ‘hatred’ to mean a feeling of extreme ill-will that allows for no redeeming qualities in the person towards whom it is directed while ‘contempt’ “encompassed looking down upon or treating as inferior the object of one’s feelings.”

In an earlier related case referred to in the decision, Warman v. Kouba, it is made clear as to what type of material is considered to warrant intervention and censorship. Steyn’s writings certainly do not meet this benchmark. Hence, the commission concluded that the views expressed in the article:

“when considered as a whole and in context, are not of an extreme nature, as defined by the Supreme Court.”

A decision is pending from the BC commission.

Comments

5 Responses to “In Defense of Free Speech…”

  1. lawiscool on July 28th, 2008 6:12 am

    Just a point of note, it was not the writer being taken to the Commission, but the publisher. The individual was (and is) free to say what they like, but the complainants felt a pattern of 22 consistently derogatory articles established a pattern of discrimination. They chose this option only after the publication failed to consider an editorial bias and review alternative options.

  2. Daniel Simard on July 28th, 2008 9:40 pm

    You speak with such confidence when stating that Steyn’s writings certainly don’t meet the benchmark in Warman v. Kouba. I think you overlook the similarities, and the differences between the two are not as grand as you imply. Here is a short analysis of the hallmarks of hate:

    Presence of the Powerful Menace Hallmark

    Very broadly, one of the premises of the Article is that Muslims are going to take over the Western world and impose Islamic law on society. This is evidenced even prior to the opening paragraph as the Article sets the stage with a prelude that states, The Muslim world has youth, numbers and global ambitions. The West is growing old and enfeebled, and lacks the will to rebuff those who would supplant it. It’s the end of the world as we’ve known it. Thus, Muslims are not portrayed as a “powerful menace” by merely taking control over major institutions, the impugned message is that they will take over the Western world. This is nearly identical to the “conspiracy theory” messages that were a source of hatred in Citron v. Zundel.

    Mirroring the “powerful menace” hallmark further, Muslims are said to have an agenda that entails high fertility rates in hopes of overthrowing democracy and imposing Sharia law.

    On the Continent and elsewhere in the West, native populations are aging and fading and being supplanted remorselessly by a young Muslim demographic. Time for the obligatory “of courses”: of course, not all Muslims are terrorists — though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists — though enough of them share their basic objectives(the wish to live under Islamic law in Europe and North America)to function wittingly or otherwise as the “good cop” end of an Islamic good cop/bad cop routine.

    The messages also uses “true stories”, news reports, pictures and references from purportedly reputable sources to make negative generalizations about the targeted group.

    Messages that make use of allegedly true stories, news reports, pictures and references to apparently reputable sources in an attempt to lend an air of objectivity and truthfulness to the extremely negative characterization of the targeted group have been found to be likely to expose members of the targeted group to hatred and contempt. They encourage readers to accept, without question, gross generalizations and stereotypes about the targeted group (Warman v. Kouba, supra).

    In a strikingly analogous use of “true stories” (Warman v.Winnicki 2006 CHRT 20), the Respondent quoted from online news reports about crimes and events involving members of the targeted group. Consequently, the Tribunal found that the use of newspaper articles enhanced the legitimacy and persuasiveness of the messages and increased the likelihood that the target group would be exposed to hatred and contempt.

    Use of “True Stories” in the Article
    The Article makes use of the infamous rioting in France in 2005 to conjure warlike imagery of flaming cars on the news and then juxtaposes this with Muslim youth; which by implication is legitimizing the notion that they will wreak havoc and that they have the potential to cause destruction to the fabric of Western society.

    You may vaguely remember seeing some flaming cars on the evening news toward the end of 2005. Something going on in France, apparently. Something to do with — what’s the word? — “youths.” When I pointed out the media’s strange reluctance to use the M-word vis-à-vis the rioting “youths,” I received a ton of emails arguing there’s no Islamist component…

    On a different occasion, the Article uses a Norwegian newspaper in which a Scandinavian imam (religious leader) reportedly reveals the Muslim agenda and forewarns its readers that a Muslim takeover will soon become a reality. The following quote adds legitimacy to the message through “true stories” in two main ways: 1) Uses a seemingly reputable news source to legitimize the message; 2) Uses a member of the target community as a representative of the communities’ views to generalize this fringe element.

    “We’re the ones who will change you,” the Norwegian imam Mullah Krekar told the Oslo newspaper Dagbladet in 2006. “Just look at the development within Europe, where the number of Muslims is expanding like mosquitoes. Every Western woman in the EU is producing an average of 1.4 children. Every Muslim woman in the same countries is producing 3.5 children.” As he summed it up: “Our way of thinking will prove more powerful than yours.”

    In similar style, the article provides a quote from the well-known Libyan military leader Colonel Gaddafi. Once again its usage is to add legitimacy to this alleged Muslim takeover by using ostensibly legitimate representation of Muslim ideology. In this case, Colonel Gaddafi is quoted out of context and is not within the scope of the discussion currently taking place. This reference is clearly used for the sole purpose of overgeneralization and legitimization.

    Of the country’s Turkish and Moroccan population, 35 per cent are under 18 years old. The “youths” get ever more numerous, the non-youths get older. To avoid the ruthless arithmetic posited by Benjamin Franklin, it is necessary for those “youths” to feel more Belgian. Is that likely? Colonel Gadhafi doesn’t think so:
    There are signs that Allah will grant Islam victory in Europe — without swords, without guns, without conquests. The fifty million Muslims of Europe will turn it into a Muslim continent within a few decades.

    Without question, the use of these news stories and the references to prominent figures were utilized to lend an “air of objectivity” to the assertions contained within the Article. By doing so, the readers are more likely to believe these negative characterizations of the Muslim community which is then likely to subject this community to hatred and contempt.

    It is important to note that each “true story” takes place in a continent that is not the home of the Article’s intended readership. Meanwhile, the Article makes use of these “true stories” for the purpose of slandering the Muslim community in its own jurisdiction.

  3. Cris Best on July 28th, 2008 10:12 pm

    That’s because I am certain.

    The Hallmarks of Hate Messages (Warman v. Kouba)

    You neglected to mention the remaining nine hallmarks:

    1. The targeted group is portrayed as preying upon children, the aged, the vulnerable, etc.

    2. The targeted group is blamed for the current problems in society and the world

    3. The targeted group is portrayed as dangerous or violent by nature

    4. The messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil

    5. The messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group

    6. The targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances.

    7. Highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt

    8. The messages trivialize or celebrate past persecution or tragedy involving members of the targeted group

    9. Calls to take violent action against the targeted group

  4. Daniel Simard on July 28th, 2008 10:19 pm

    Hence short analysis.

    c) The targeted group is portrayed as preying upon children, the aged, the vulnerable, etc.
    Typical cases bearing this hallmark are that of target groups preying on children for the purpose of some form of sexual exploitation (Schnel supra; Warman v. Kyburz, 2003 CHRT 18). Although the majority of cases are ones in which children are exploited, this hallmark is not limited to victimization of children. A proper indicator of this hallmark is the presence of messages that attempt to establish an association between the targeted group and the exploitation and victimization of a societal group. When this threshold is met the Tribunal has found that messages of this nature serve to foster hatred and contempt of the target group which is directly related to their appalling and disgusting actions.

    Muslim Youth Preying upon the Elderly of Western Society
    The Islamic agenda, which has been referred to throughout (this paper and the Article), is deemed to be a product of the Muslim world’s youth. An essential equation in this alleged takeover is: Youth + Will = Disaster for whoever gets in your way. The article suggests that the Muslim population’s higher than average fertility rate is deliberate and not by happenstance.
    The article expressly makes use of this predatory hallmark when it explains that Muslim youth are supplanting Western populations aging demographic: On the Continent and elsewhere in the West, native populations are aging and fading and being supplanted remorselessly by a young Muslim demographic. The message beyond conveyed is that the relative youthfulness of the Muslim community is a purposeful tactic which allows the Muslims to prey on Western society’s aging demographic.

    (d) The targeted group is portrayed as dangerous or violent by nature
    When a group is represented as dangerous and violent they are more likely to be exposed to hatred and contempt. Portraying a group as dangerous can be done graphically, as was the case in Warman v. Winnicki, supra, where the Tribunal held that the use of graphic photographic images of burned and dismembered people of African origin messages conveyed the idea that with any African person violence and death follow. This feat can also be accomplished through simple messages as was done in Warman v. Kouba, supra. In this analogous instance, the Respondent characterized Muslim people as terrorists and said Jewish people are taking control of Canadian society.

    Muslims portrayed as violent and dangerous
    In addition to the numerous subtleties and the many implicit statements that suggest Muslims are a violent and dangerous group, the Article compiles a list of global events in such a way as to as to leave the reader with no other conclusion than: Muslims are terrorists or terror exists where they reside and they are violent and dangerous. This is supported by the following paragraph:

    On Sept. 11, 2001, the American mainland was attacked for the first time since the War of 1812. The perpetrators were foreign — Saudis and Egyptians. Since 9/11, Europe has seen the London Tube bombings, the French riots, Dutch murders of nationalist politicians. The perpetrators are their own citizens — British subjects, citoyens de la République française. In Linz, Austria, Muslims are demanding that all female teachers, believers or infidels, wear head scarves in class. The Muslim Council of Britain wants Holocaust Day abolished because it focuses “only” on the Nazis’(alleged)Holocaust of the Jews and not the Israelis’ ongoing Holocaust of the Palestinians.

    To emphasize this violent and dangerous characterization and generalize this proposition to Muslims around the globe and specifically Canada’s city with the greatest number of Muslim citizens (Toronto), the Article states that:

    …not all Muslims are terrorists — though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists — though enough of them share their basic objectives.

    In this context the word “jihad” can mean nothing other than war, therefore, the Article is explicitly stating that Muslims are easily excited and inclined to wage war. In the following sentence the Article feeds the terrorist characterization by suggesting that most Muslims share the basic objectives of terrorists.

  5. lawiscool on July 28th, 2008 11:37 pm

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