The limits of freedom of speech
Most Canadians strongly believe that freedom of speech is a value and a principle that is the lifeblood of democratic society.
The Jewish community shares this appreciation and places a premium on free thought, discourse and open debate. Freedom of speech is consistent with our tradition of lifelong learning, questioning and discussion.
But throughout history, Jews have been victims of hate, repression and discrimination. That is why the organized Jewish community, through such governing organizations as Canadian Jewish Congress (CJC), has also recognized that most freedoms are not absolute. When necessary, there must be limits on freedoms in order to protect the integrity and security of minority communities from harm.
This harm can follow as a result of hateful, vicious or even disrespectful expression – particularly when that expression encourages others to target minority communities and cause physical, emotional or psychological distress. There are different kinds of harm – but the effect of hate on survivors of the Holocaust and their children can be particularly traumatic.
This explains why more than 40 years ago, the organized Jewish community responded affirmatively to the creation of the Cohen Commission, following anti-Semitic rallies in Toronto’s Allan Gardens. The Cohen Commission, in turn, ultimately led to the enactment of the current but rarely used hate propaganda provisions in the Criminal Code. These provisions have been employed to prosecute purveyors of hate such as James Keegstra and David Ahenakew. Not surprisingly, in some of these cases, the accused have defended themselves on the basis of the freedom of expression provisions in Section 2(b) of the Canadian Charter of Rights and Freedoms.
The constitutional protection of freedom of expression is, of course, strongly supported by most Canadians. But many members of the Jewish community and others, such as the drafters of the Charter itself, realize that rights are not absolute. In fact, our constitution states that all rights in the Charter are subject to reasonable limits in this free and democratic society.
The anti-hate provisions in the Criminal Code are not the only legislative restrictions on free speech. Both federally and provincially, anti-discrimination laws – commonly referred to as human rights legislation – also contain prohibitions against certain kinds of expression that are viewed as discriminatory in nature.
These laws, however, have recently come under attack for being used in inappropriate circumstances. The attacks have focused on Section 13 of the Canadian Human Rights Act and similar sections of anti-discrimination legislation in British Columbia, Alberta and elsewhere. Most recently, they arose out of complaints by a Muslim organization against cartoons, originally published in a Danish newspaper, and other depictions and descriptions viewed as anti-Muslim. This led to a number of controversial complaints and then to suggestions by some that the anti-discrimination laws affecting expression should be abolished.
What is the position of the organized Jewish community regarding these anti-discrimination provisions? The CJC supports these laws to ensure that another level of protection is afforded minorities in Canada.
At the same time, Congress proposes that a review of the substance and administration of these laws be undertaken to ensure that a line can be drawn between permissible and offensive speech, and that these laws are only used in appropriate circumstances.
The Canadian Jewish community is not alone in its concerns. In April 2007, the B’nai Brith Anti-Defamation Commission in Australia supported a government proposal to order Internet service providers to refrain from hosting racist and anti-Semitic websites.
Some believe freedom of speech is absolute and that there should be no legal limits or constraints on its exercise. They argue that there should be a marketplace of ideas from which the truth would emerge. But there are limits on any marketplace. No commercial marketplace should allow the sale of toys that are dangerous to children or foods that are harmful to health. That is why consumer goods are regulated. Equally, laws are needed to ensure that hateful and discriminatory expression does not cause harm to vulnerable groups in society.
For hundreds of years, the law has recognized the harm caused by defamatory speech. Anti-hate and anti-discrimination laws essentially achieve the same objective by prohibiting group defamation.
In Psalm 34, we are warned, “Guard your tongue from evil and your lips from speaking guile.” As a community, we should strongly support free speech while, at the same time, we should continue to censure unbridled expressions of hatred.