Friends of Freedom in the Media

Whenever a major media personality like Andrew Coyne writes an article in favour of free speech and against 319(2) of the Criminal Code, one should be grateful, and particularly when it comes from a columnist of such considerable intelligence as Andrew Coyne. Reading the front page of the National Post on July 10, I was delighted to see his article, and I agree that the ban is worse than any imaginary bite.

He makes the very profound point that it’s not just because freedom of speech is limited in other ways, such as libel and fraud and threats. Those exceptions to the general rule that freedom of speech should be absolute have clear justifications in demonstrable harm to the individual, to an identified person. Having read the front page and those being the final conclusions on the front page, I thought it would be an excellent article, but turning to page 2, I observed that he seemed to meander.

I thoroughly agree that “speech is not merely used for debating political ideas. It is innate to us as human beings, built into our very thought processes: to prevent us from speaking is the next thing to preventing us from thinking.” In my own words, there is no point in having freedom to think if you have not freedom to express your thoughts, and clearly though there are defences of truth, fair comment, honest religious opinion, and the exception of removing hatred from some other identifiable group, these high-flown concepts have very little meaning in reality when the burden of proving them falls upon an accused in a Section 319(2) charge. For instance, in regard to historical truth, no one can verify an opinion through actual proof. It’s all a matter of opinion. So the defence of a charge under Section 319(2), even if that must be proven beyond a reasonable doubt, is never very easy.

Section 319(2) has none of what Mr. Coyne requires, being a rigorous justification of this intrusion upon the liberty of a person, because in fact the harm asserted by the alleged defamed group is both subjective and vague. There’s no need to prove it. It simply raises the question of whether the emotion might be promoted. What emotion? The emotion of hatred. What is hatred? Mr. Justice Dickson in Keegstra defined it as “intense dislike”. How can such a term be judged by any objective criterion except the horrified reaction of the politically correct, which of course in most cases includes the average person?

Hate and dislike are emotions which unfortunately are permeating most persons in society for one thing or another. There’s always something we intensely dislike, or one group, or one form of conduct, or thought, or belief, or opinion.

But generally in other sections of the Criminal Code, there must be an identifiable harm to an identifiable person. Section 319(2) requires only that the harm which is the “likely” not “actual” promotion of hatred be measured by no empirical referent whatsoever, but the subjective perception of the trier of fact, be it a judge or a jury. The actual promotion of hatred never needs to be proven under this section. How do you prove it was unlikely if no evidence of it was ever required? Unfortunately, when you introduce the element of emotion to a judicial process, judges are nothing more than human. They have the onerous task of deciding if, measured against their own emotions, intense dislike would be likely created against an identifiable group. Too often, this boils down to whether the emotion of hatred is likely promoted in them of what the accused says.

Even if hatred was promoted, why is hatred of an identifiable group a crime at all? In this regard, as Mr. Coyne quotes Jeremy Waldron in his book, “The Harm in Hatred Speech”, which he says robs target groups of the “implicit assurance that society owes to all citizens that they are accepted as members of that society.” I suggest that’s a premise for which there is no moral or philosophical justification. No group is automatically entitled to be accepted as members of society, unless and until they demonstrate by actions and argument that as a group they are worthy of recognition and acceptance in society. Acceptance in society for an individual is not automatic. We have to earn respect in our society. The natural first reaction to a stranger is not automatic acceptance, but a skeptical and measured inquiry into the performance, the character, and the associations of the individual. The same should be true of every group. No society should automatically accept any group without a careful analysis of the type and the character of the group being accepted. They could be tolerated, but acceptance is more than toleration. It is, in fact, affirmation. The full participation in society or any community needs to be earned and should never be automatic.

Finally, at the end of his article, Mr. Coyne seems to stray into the realm of popularity and numeric assessment to determine whether one should have free speech. He assures us that a handful of neo-Nazis can be tolerated because they are a handful, and if there was a capability of the few to become the many, that would justify the imposition of laws restricting the few. But has it ever been demonstrated in the past that the few could become the many without rational argument persuading people, and to which the many could respond with appropriate, reasoned arguments. Mr. Coyne sidesteps that issue.

Various groups that advocate these laws have taken this issue head on and said that because of the example of Nazi Germany, we can no longer trust society to eliminate with argument, reason, persuasion, and democracy those who promote hatred. These advocates of censorship (because that’s what they are) fail to mention or recall that in the Weimar Republic, stringent anti-hate speech laws that banned speeches by Adolf Hitler and others did not silence or defeat the National Socialist movement of which he was the spokesman.

Mr. Coyne does make the good point that dictatorships are usually the best breeding ground of hatred of minorities. It could be rationally demonstrated that the ascendency of hate groups is never possible with rational human beings, unless and until there is a factual foundation to persuade them. If such was not the presumption upon which we base the entirety of democracy, how could we trust the majority to vote for anybody? Hatred, of course, is legitimately promoted in politics against your opponent, provided you don’t mention race, religion, ethnicity, etc. We still believe that in democracy, after a full and thorough debating process, the hatred promoted by one party against the other is quite legitimate to determine who is in fact the more virtuous, and during an election by subtle means and sometimes not so subtle means, hatred is promoted. We maintain, and have for hundreds of years, the premise that in democracy and with free debate, and even the promotion of hatred against your opponent, free speech results in people making the right choice. Once the people have chosen in a democracy, it is deemed to be the right choice.

In addition, of course, there has to be consideration to the fact that in a free and democratic society, the groups which are more powerful and more prolific have the ability to defend themselves in a free and open manner, and to demonstrate that the hatred promoted against them in unjustified on the facts. We, in a free and democratic society, are supposed to believe and do believe in all other matters, with that degree of discussion, only truth could possibly promote hatred, and truth will always overcome irrational unjustified hatred. To believe otherwise is to deny the common intelligence of mankind upon which rests the belief in universal suffrage, democratic elections, and representation by population.

For this reason, truth is a defence under Section 319(2), just as it is to the accusation of defamation of an individual, and it’s in the court of public opinion, not a court of law, that these major issues should be debated. Even Nazis have a right to participate in that. After all, they’re well and truly vilified and demonized in the liberal press. I guess it’s okay to promote hatred against them, white supremacists as they are. So obviously, it depends on whose ox is gored as to whether hatred is accepted or not, and it is clear that Section 319(2) gives the legal upper hand to the majority to crush and criminalize the minority, hardly a demonstration of tolerance.