Monday, May 11, 2015

Politicizing Free Speech (Part I)

The Harper government is planning to try to force Canadians to support Israel or, at least, keep quiet if they don't. Here is the news story.  Exactly what is behind this odd move is a matter of speculation. It jives, of course, with the Conservatives self image as tough minded, tough acting, pro-military anti-Arab, etc., etc., and that might be true. It also jives with the Conservatives blithe disregard for Charter rights, again no surprising. And, it is broadly indicative of the current Canadian government's redefinition of Canadian foreign policy, something about which I have blogged before. But, for me, what is perhaps most interesting is the way in which it continues a trend -- one I will admit that I find deeply disturbing -- of politicizing  (or, politically manipulating) areas public life that were formerly not politicized. Moreover, unless I am wrong (and, correct me if I am) the politicizing is getting more crass, more overt, more self-evident. In this case, what we see is the political manipulation of hate crimes in the service of Conservative foreign policy. What the Conservatives are trying to do is to criminalize opposition to Israel.  If you support voluntary sanctions against Israel (something supported by a broad range of OECD countries and reasonable  well-known intellectuals and churches), it appears that you Conservative government is preparing to charge you with a hate crime.

Because this is a such a disturbing trend that directly attack fundamental freedoms (as I said, in effect, potentially criminalizing opposition to Conservative foreign policy), it is a rightly emotional issue that will draw heightened rhetoric and inflame passions. It should. But, we also need to look at this issue coldly and directly and dispassionately to understand what is going on. That is what I want to do in this blog. I'll begin by looking at what hate crimes legislation is all about, note the history of conservative opposition to it, and then situate the current government's embrace and what this tells us about it, before concluding with an assessment of the likely fall out.

Hate Crimes

Canadians became concerned about hate crimes, or more exactly the propagation of hate and inciting to violence as a result, in the 1960s. In response to an upsurge of racism in the US that was exported to Canada, linking up with domestic racism, Canadians began to consider ways to address this problem. Currently, this takes form in the Criminal Code which forbids the propagation of hate. I'll append the relevant sections of the Criminal Code below, but you can find it here.

The philosophy behind hate crimes is important, particularly for a consideration of free speech in Canada. The right wing politicized advocates of "free speech" have long argued against hate crimes and argued that they have the right to say whatever they want, whenever they want. I've explained in other posts why this is not true and, in fact, an immature approach to free speech. What makes it immature (I hasten to add since that is a politically loaded term) is that it is an effort to avoid responsibility. This is what children do ("it is not my fault, Dad!"). Adults accept responsibility for their actions. By arguing that one can say whatever, whenever to whomever, one is saying "I should not be held responsible for my actions" no matter what the consequences. Yet, if we examine the history of hate, its connection to propagation is significant. For instance, in Rwanda, radio broadcasters played a key role in the genocide.

Saying something negative does not automatically make it hate. One say negative things and this happens all the time in Canada. But, these negative things have to be true or have reasonable possibility of being true. I like this legal provision because it makes what strikes me as an imminently reasonable position: everything is *not* a matter of perspective. There are things that are true and things that are not. The earth is not flat, for instance, and the argument "well, that is my perspective" does not get one off the hook, as it were, for believing it. It does not isolate a person, said differently, from being wrong. Thus, one could contend that there is a Jewish conspiracy to take over the world, but one would have to demonstrate that there is some reasonable probability that that is true.

Inciting hate goes further, though, in that it is meant to capture the problems that following from propagating hate against people. That is: it has serious negative consequences. Arguing that person X or person Y is a member of, say, an "inferior race" and "criminal class" a "terrorist" by virtue of the religion they practice, etc., is *not* a politically neutral action, nor by the way is it intended to be (I will blog on this point later because it strikes me as important.) It serves to marginalize people in society and has very real effects. We see those effects in inequality in society. We see it in gay bashing, in the gender gap in pay, in racist attacks on individuals, and, Canadians believed, we would see it much more if we did not make people take responsibility for their actions. If they can demonstrate that what they are saying is true or that there is a reasonable possibility that it is true ... fair enough but simply saying "I believe it, ergo, I can say it" is not good enough (again, I'd argue its immature in the way I defined the term above). You cannot propagate something that is untrue in a way that causes harm to other people. Free speech ends at that place that it harms someone else (this is a basic and long-standing tenant of liberalism).

Traditionally, the more extreme wings of conservatism in Canada have not been fans of hate speech and have tended to oppose its extension, particularly to protect GLBT people and their claims to equality. Hate speech is not the same as human rights protection in other areas but it is closely linked to it. More sober and reasoned conservatives, by the way, (Joe Clark, Dalton Camp) have never had a problem with hate crimes as I have described their operation above, but more conservative political movements have in ways that liberal and social-democratic (Liberal and NDP) political groups have not. Both liberals and socialists/social-democratic (or, whatever one happens to call them) in Canada have tended to support laws against the propagation of hate. Conservatives, on the other hand, have been more wary and so the current embrace of it is a bit of a turn. What is going on here?

Hate Crimes and Public Policy

Hate crimes are also connected to foreign policy. Canada is, of course, not the only country to have hate crime legislation. Hate crimes are, however, not usually about foreign policy. They are connected to it in a multifold sense. First, in the sense that the shadow of the Holocaust hangs over hate crime legislation, whether we like it to or not. The Holocaust is not the only genocide in history, of course, but it is the best known and most discussed. It is an ever present symbol of what happens when hate runs out of control and it should be. Second, it is also a symbol of what happens when one ignores hate. And, ignoring hate, as the genocide in Rwanda most recently demonstrated, is easier to do when it occurs elsewhere. The repercussions are the same, of course. Ignoring the widespread propagation of hate produces violence, but it is easier to ignore if it is something going on "over there" in some "unknown" part of the world. Still, following Rwanda, there was a general recognition on the part of a wide range of commentators and later governments that something needed to be done about hate in other countries. That one should not stand idly by while genocide occurred. Exactly how one country should address this problem is not always crystal clear but the basic idea that something should be done is an important step forward, if we are to protect innocent lives. It is, therefore, a crime in Canada to have engineered a genocide in another country. Canada can and will prosecute genocidaires in Canada for crimes they have committed elsewhere in the world. I have no problems with this nor, I suspect, do most Canadians.

But, and this is an important point, disagreeing with Canadian foreign policy has never been a hate crime and this is where the proposed new government offensive in this regard -- to make it illegal to take action in civil society that is in opposition to the course of policy laid down by the Canadian government with regard to Israel -- is so new. So far, and from what I can tell, the government intends to take action only against those who disagree with its policies with regard to Israel. I could be wrong and, if so, someone let me know.

Before addressing this issue, it is important to note that hate crime legislation does not prevent vigorous public debate on controversial issues. In other words, it does not stop the type of vibrant debate that is healthy for a democracy. In Canada, for example, we had an extensive and vigorous debate on equality in marriage. This is OK. Everyone, I think, knows how I side up on that debate. I found some of the things said by the opponents of equality to be silly, confusing, contradictory, irrelevant, etc., but, I never argued that they were hate nor did any other responsible advocate for equality. In Quebec, there was a vigorous debate on "secularism" that had clear implications for specific groups of people. That debate had its disturbing elements, to be sure. But, no one ever used hate crime legislation  to force anyone into line. The PQ, for instance, did not look to prosecute those who argued against their charter for propagating hate; the current Liberal government has not charged anyone who advocated for the secular charter with hate, after they have come to government. Same thing regarding equality in marriage. Whatever one thought of the arguments against equality, the government never prosecuted people for holding those views and organizing to articulate their views and promote their perspective. Nor, I think most of us will agree, should they have.

Thus, hate crimes legislation is not intended to limit debate in the public sphere. It is designed to address an important problem: hate and the violence it engenders. It is designed to ensure that people take responsibility for their actions and designed to ensure protection for citizens (again, my rights end where I begin to harm someone else).

Summing Up

What have I established so far? The first thing, I suppose is that I'm wordy. This issue requires more space than I originally intended. The more important matters are, however, that:

1. Hate crimes legislation was designed to protect society and is consistent with the traditional liberal and social-democratic emphasis on the protection of the individual. I have rights to the extent that they do not harm others. Hate crimes are illegal because they are about inciting violence.
2. It is based on the idea that people are (or, should be) responsible for their actions. If I cause harm to another person, say, by encouraging someone to hit them or kill them, I am responsible for that action because otherwise that violence might not have occurred.
3. Hate crimes legislation does not make it illegal to say specific things but imposes a test on the articulation of hate. One can articulate hate if one can demonstrate that it is true or that there is a reasonable possibility of it being true.
4. Canada can and will prosecute hate that occurred in other countries, particularly that associated with genocide.
5. The operation of hate crimes legislation in Canada has never been used to limit public debate. Indeed, we have a couple of key instances recently (equality in marriage and the "secular charter") that were rife with prejudiced language and potentially disturbing views, but no one was prosecuted for hate. In other words, despite some disturbing discourse, hate crimes legislation in Canada has not previously been used to limit public debate or force the public to conform to government policy.

On all these points, this step on the part of the current government seems -- if they follow through with it -- to break new ground. It uses hate crimes legislation to criminalize opposition to an aspect of Canadian foreign policy related to Israel.

The degree to which this is consistent with the current (Conservative) government's policy is the subject I will address in the next blog. I'll argue that in some ways it is. It represents, as it were, an effort to change the way in which laws operate in Canada, particularly laws that were designed to protect individuals.

Relevant Sections of the Criminal Code:

Hate Propaganda

Marginal note:Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “genocide”
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Marginal note:Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
Definition of “identifiable group”
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12.
Previous Version
Marginal note:Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Marginal note:Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Marginal note:Defences

(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Marginal note:Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.
Marginal note:Exemption from seizure of communication facilities

(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.
Marginal note:Consent

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
Marginal note:Definitions

(7) In this section,
« communiquer »
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

“identifiable group”
« groupe identifiable »
“identifiable group” has the same meaning as in section 318;

“public place”
« endroit public »
“public place” includes any place to which the public have access as of right or by invitation, express or implied;

« déclarations »
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
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