Politicizing (Free) Speech; Politicizing Hate (Part II)

In my last blog entry, I tried to explain what Hate Crimes were, in Canada at least, and why it would break new ground if the federal government were to attempt to criminalize expressions of opposition to the government of other states (in general) and Israel (in particular). I tried to argue that hate crimes were a specific aspect of liberal conceptions of the law, were consistent with the idea of (and limits to) rights in society, and were designed to protect individuals from the violence that is often associated with racism, sexism, homophobia, or other forms of prejudice. It was not a political weapon that could be mobilized against civil society to force diverse groups within it to "tow the party line." It appears that the current government has decided it agrees with me ... well ... not me, per se, but with the broad scope of the argument I was re-articulating (since my views on this matter are hardly unique). You can read about the government's position here.

I generally don't comment on current affairs as they unfold because there is too much of a chance I will get things wrong. A bit of time and consideration, I think, can go a long way toward finding logical and reasonable compromises. Some people feed of the heightened emotion of immediate political controversy and some people even want it. Considered analysis, I think, requires something different and so I tend to try to get at least a bit of distance between a subject in the news and my thinking on it.

In this case, however, I think that immediate comment was needed for a couple of reasons and I will pick up on what I was saying last time to continue the argument I was making. I think it was needed because there are people who do equate opposition to the current Israeli government with antisemitism. It is not and to make that equation -- as, it appears, a minister of the crown did -- is politicizing prejudice. It is an attempt to manipulate racism to attain personal or partisan political goals. In this case, Canadians are fairly skeptical about the policies of the current Israeli government and fair enough. A great number of Israelis -- perhaps the majority -- are skeptical about their own government. To equate opposition to a policy (occupation of Palestinian territories, housing expansion, and the like) with antisemitism is not understand what antisemitism is.

Let's follow up this argument by looking at trajectories of current politics and their results.

Redefining Policy:

Yet, for reasons that are confusing -- if important -- the Canadian government has moved in exactly the opposite direction. And, this is the other reason to draw attention to the issue. Not only is it important to distinguish a hate crime from political opposition; it is also important to look at what this kind of argument -- opposition to the policies of the current government of Israel are the same as antisemitism -- tells us about the state of Canadian public life and the changing dynamics of Canada.  This is what I want to address in this blog.

The reason people believed that the federal government was considering redefining hate to equate it with any opposition to current Israeli policy is that it made sense. The federal government, under the Conservatives, has been very slowly redefining all matter of things. This is not surprising and should not surprise us. After all, that is what we would expect conservatives to do and that is why they are conservatives. I've blogged on this before but let me say clearly that that is the goal of politics. It is not just about policy but about the philosophy of nation ... how the country operates and what it takes as its values. Conservatives are conservatives because they do not share liberal or socialist or environmentalist values. Hence, there is always something more at stake in public life beyond the immediate policies being discussed.

Over their time in power, the Conservatives have changed the Citizenship Test (moving it away form the development of the welfare state and commitments to equality and toward war as the defining mark of Canada), Status of Women (removing its commitment to equality between men and women and defining it only in terms of research), Stats Canada (removing its ability to collect detailed information about Canadians), Elections Canada (no longer allowed to promote voting among Canadians), internationalization (limiting access from Mexico and Czech Republic), heritage (militarization), Middle East policy (shift to unconditional support for Israel from neutral "honest broker" position), income tax (find ways of benefitting "traditional" families so that woman at home families don't pay as much tax), etc. There are, I am sure, other things as well.

What has happened -- and I'm just describing it; not passing judgement on it -- is that we have a series of subtle shifts without overthrowing traditional laws and policies.  There has been an extended redefinition of the role of federal agencies, ideas, values, etc. that, taken together, reposition Canada and reposition what it means to be Canadian, at least in the eyes of the federal government. Status of women continues to exist, but the federal government is no longer committed to gender equity. Stats Canada still exists, but the federal state is no longer interested in detailed demographic studies that might or might not provide evidence of changes to or continuities in Canadian society. Canada is still active in the Middle East but it is no longer trying to contribute to peaceful solution to regional conflicts with which all parties can live. People believed that this type of shift was underway because it was not new. Instead, it seemed like an extreme version of shifts we have already seen.

Law, Policy, the Constitution:

One of the changes that has occurred is that the federal government finds itself more and more in opposition to court rulings. I've lost the news story (and so if someone has it, please send it to me) but I recently read a news story scorecard of Harper/Supreme Court conflicts. The Harper government has lost repeatedly when its policies have been challenged as unconstitutional (or, even just not good law). When this happens, the government usually complains about the courts impinging on policy in areas that are rightly its (the government's) prerogative.

The other side of the coin is that it is, in fact, not the courts that are challenging the Harper government. The courts, of course, don't initiate legal action. If you don't know that and have been complaining about the courts overstepping their jurisdiction ... you likely should learn how the courts in Canada operate. Judges don't sit around and say "gee, I think I will take on Harper today." They can act only if a case is brought to them.  It is, as I have said before, a right of  citizens to take matters to the courts and it is a good way of solving problems and conflicts. At the least, it is consistent with the rule of law. The courts, then, rule on issues and they cannot rule on matters from a political perspective. Nor, would we want them to. They rule from a legal and constitutional perspective. We don't want judges saying "I"m a Conservative/Liberal/Socialist, etc., so I will rule this way." We want them ruling on the law.  I know that there are political implications to legal rulings but this is something different from allowing political considerations to determine and rationale rulings.

What happens, then, is that citizens take the government to court and the government loses because it is violating the constitution. In a society that is based on the rule of law, the government cannot be exempt from the law. If it is, the society is no longer based on the rule of law but instead the arbitrary attributes of government. What the government (any government) is, therefore, asking for when it says that the courts should not rule on its policies because it is the government is to be exempt from the rule of law. In other words, they are not simply saying "the courts should not rule on X or Y" but saying "this government's policy should not be subject to the law and constitution and the courts should deny citizens the ability and right to take matters before them." In other words, they are saying that the rights of citizenship should be contracted.  My view is that many people like this idea when the courts rule in a way they don't like but ... that people would very quickly come to dislike the precedent it set because it would subvert the rule of law.

Conclusions:

Why mention any of this? For a number of reasons:

1. The courts are serving as a break on the Harper government because its efforts to redefine policy and law are violating the constitution. This does not make the courts bad. They are simply doing their job. For me, it raises a question: why would a government consistently try to violate the constitution?  I don't have an easy answer to this question but I think it relates to conservative skepticism about individual rights.

2. That if the current government tried to redefine hate crimes, this would be challenged and the courts would uphold that challenge. A hate crime, the courts would almost certainly rule, is something different form opposition to policy X or Y being carried out by the a foreign government.

3. That the government has, however, thought about equating opposition to Israeli policy with a hate crime tells us something about this governments, its perception of Israel, and its perception of the relationship between citizens and the state. In effect, it says that the current government seems to feel that any opposition to Israel (which is, ipso facto, opposition to Canadian foreign policy) can be defined as a hate crime. Think about that.

4. This also tells us something about propaganda. We live through a time where propaganda from the state is becoming more overt. I'll make up an example to illustrate my point. A budget bill that cuts benefits to poor people is called "The Prosperity Law" even though it will make people poorer. There has always been a politics of manipulation but it seems to be ramped up in recent years. We used to laugh at American legislature for the type of manipulative naming and now we find Canadian legislature doing the same thing.

5. This rise in propaganda is often justified by the line "this is our view" which is, of course, no justification at all. I said in my last blog entry, the fact that you believe something does not make it true and its remarkably arrogant to believe that it does.  Yet, there is -- connected to this rise in propaganda -- and odd rise in the believe that "well, I believe" is a good answer.

6. I think that this has an effect on political alienation because ordinary people seen politicians manipulating language to serve their own ends. If a minister of the crown says "It is OK to equate opposition to the Israeli government with hate," the boundary between hate and opposition becomes blurred and confused. If we call cutting benefits "prosperity" and ignoring the past "heritage" ... why would anyone believe anything? Why would they participate in politics?  There is, in other words, a negative consequence to this type of politics of naming.

What I am trying to say is this: whether or not the current government defines opposition to its Israeli policy as hate is important but it is also only one part of a broader change that has gone on in Canadian society and Canadian politics. The government might not do it. Good. It was a bad idea that would have been thrown out by the courts and hence a waste of time and money. But, we can use it to illustrate the changes that have gone on in Canada and what living in a conservative Canada actually means.

A Final Final Word

I might note that almost none -- I counted one person of principle on my twitter feed -- of the defenders of "free speech" opposed the idea of calling opposition to the current Israeli government "hate." This is telling. Over the last few years, we've seen a number of politically right-wing commentators and semi-organizations defend free speech, which they claim is menaced by leftists. I've tended to argue against this and tried to show they the arguments made by these  self-appointed defenders of free speech are spurious. But, we should note that none of them came out in opposition to the idea I've been discussing.  Does this show the politics of their perspective. They are all for free speech for some people but not others? I don't know, but it does make it more difficult for me to take them seriously.

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,
“communicating”
« 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;

“statements”
« 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.