Free Speech or Hate Speech?
By Faisal Kutty
“I don’t know of anything more important than freedom of expression,” said former Supreme Court Justice Peter Cory commenting on the Court’s decision to uphold Jim Keegstra’s conviction for willfully promoting hatred in 1991.
The offensive Danish cartoons of the Prophet Muhammad have now ignited global interest in the subject. To date four Canadian media outlets have entered the fray.
Despite death and destruction, some free speech advocates have characterized this as a defining battle. It has now become a clash of extremes with both sides reeking of double standards. Muslim extremists, some of whom regularly insult others, and dictatorships are trying to claim the moral high ground by defending the sacred in clearly non-sacred ways. An equally hypocritical extreme in the West is pretending as if there are no limits and as if subjective restraint is not exercised daily.
Many of the nations where these cartoons have been published have laws against anti-Semitism and rightly so (for an excellent summary of the situation in Europe see Professor Ruti Teitel’s article http://writ.news.findlaw.com/commentary/20060215_teitel.html). In fact, about two weeks ago Italian prosecutors even announced charges against eleven individuals who displayed Nazi symbols during a football game. Meanwhile, media in Italy have reproduced the cartoons with impunity.
Indeed, even in Denmark there are limits. The offending newspaper, Jyllands-Posten, refused to publish caricatures of Jesus in 2003 because they would “offend.” Moreover, section 140 of the Danish Penal Code prohibits blasphemy while section 266b prohibits expressions that threaten, deride or degrade others on various grounds. Of course even limits and laws are viewed through political, social and philosophical lens and so the public prosecutor determined that these cartoons did not violate any laws.
Freedom of expression is alive and well in Canada, but cannot be used as a carte blanche. We have restrictions. We have libel laws and censorship of various forms in keeping with “community standards.” Moreover, criminal and human rights legislation also restrict free speech in the interest of protecting minorities and maintaining harmony.
Section 319 of the Criminal Code proscribes statements that incite or promote hate. Convictions have been few and far between because of the specific intent required, but it has withstood constitutional challenges.
Subsection 319(1) makes it an offence to incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.” To be convicted an accused must have communicated statements in a public place and ought to have known that the incitement was likely to have brought about a breach of the peace.
The SCC has held that the mens rea required is less than the intentional promotion of hatred, but the immediacy of the breach of the peace would make it extremely difficult to convict unless the cartoons were being provocatively displayed in a mosque or Muslim gathering.
The second and more relevant offence is set out in subsection 319(2) which makes it an offence to “communicate statements, other than in private conversation, that willfully promotes hatred against an identifiable group…” The mens rea will flow from the establishment of the elements of the criminal act. The trier of fact must not only consider the statement (broadly defined) objectively, but also with regard to the circumstances, the manner and tone used and the persons to whom the message was addressed. The SCC held in R. v. Keegstra that willful blindness (“knew or strongly suspected”) as to the consequences is sufficient to satisfy the mens rea requirement.
Though it can be argued that the cartoons in and of themselves may not be caught under subsection 319(2), I believe that there are strong grounds to lay a charge against those who republish them now. I base this viewpoint on at least five reasons, the first being that the news value has diminished given that anyone wishing to understand the controversy and see the cartoons can do so without having them republished. Secondly, at least two of the cartoons, especially the one showing the prophet with the bomb and the one calling for an end to suicide bombings because of a shortage of virgins, suggest that Muslims are necessarily and inherently evil (this is a reasonable interpretation), because a Muslim by definition tries to emulate the prophet. The issue for most is not whether the prophet should be pictured. It is his portrayal, essentially, as a poster boy for al-Qaeda and by extension, Muslims in general as violent and therefore worthy of hate. Thirdly, given the fact that Muslims — both observant and non-observant — have made it very clear that these are offensive and violate their dignity as a community (granted this is an alien notion in our individualistic society), republishing them is therefore intentionally provocative and can promote hatred. Fourthly, it can be reasonably argued that the intent behind their publication in the current climate will serve no real free speech purpose and may in fact expose Muslims to hate.
Lastly, I believe that the full context of its initial publication can shed some light on the intent behind its continued publication. They were published against a backdrop of ever increasing levels of Islamophobia and racism, where even the Queen of the land had called for the demonization of Muslims.
The following quote from the South African newspaper the Mail & Guardian is illustrative:
“Further, they were published in Denmark, which has been named by the European Union Commission on Human Rights as the most racist country in Europe. It has witnessed a large number of attacks against Muslims, some resulting in the killings of Muslim immigrants. And, they were published by a newspaper with historical ties to German and Italian fascism and which called for a fascist dictatorship in Denmark. Jyllands-Posten is also anti-immigrant and anti-Muslim. Within such a context, these cartoons are clearly hate speech. Their publication is an ontological attack against the foundations of Islam.”
Indeed, some commentators have argued that given the foregoing, the aim of the cartoons was nothing short of inciting hatred against “the terrorist within”.
However, conviction under ss. 319(2) would be extremely difficult given the evidentiary burden and indeed even initiating the prosecution requires the consent of the attorney general – a Herculean task for communities that often lack political clout. Moreover, the accused has a number of defenses available under ss. 319(3) which dilute the provisions effectiveness, but minimizes abuse.
Though not specifically designed to regulate speech it may be easier to pursue a hate-monger using the lower civil standard of proof required under human rights legislation. Such legislation is concerned with the broader effect of hate and not just the intended effect. Legislation in both British Columbia and Alberta have been successfully used to curb hateful speech. The SCC has not yet ruled on whether this would be ultra vires by infringing on federal jurisdiction over criminal law.
Muslims in Canada have acted responsibly. Editors must reciprocate and exercise their rights tempered by civic responsibility. The community will be looking to the various Attorneys General to enforce the laws against those who cross the line and join the bandwagon of hate in the name of freedom of expression.
As Mr. Justice Cory pointed out more than 15 years ago, laws against hate were justified because inciting hatred can be “as damaging as actual physical violence.”
“Limits on free speech,” said the justice, “must be considered as much as the right itself.”
Faisal Kutty is a lawyer with the firm of Baksh & Kutty. He is a board member with the Canadian Council on American Islamic Relations and general counsel for the Canadian Muslim Civil Liberties Association. His articles are archived at http://www.faisalkutty.com
An abridged version of this article appeared in Lawyers Weekly (February 24, 2006).