Alan Borovoy When Human Rights Go Too Far 01-Jun-2000

Alan Borovoy When Human Rights Go Too Far 01-Jun-2000

Remember, free speech is sometimes most important when it expresses strong disapproval. But where does strong disapproval end and "contempt" or even "hatred" begin? � Alan Borovoy

When Human Rights Go Too Far

by A. Alan Borovoy
General Counsel
Canadian Civil Liberties Association
and author, The New Anti-Liberals

The Globe & Mail, 1 June 2000

Having campaigned vigorously many years ago for the creation of Canada's first human rights commission, I have been disquieted by the recent erosion of respect in human-rights circles for the importance of free speech. There would be little problem if the issue were simply speech connected to discriminatory acts. It has long been unlawful � and properly so � for businesses to advertise, "No blacks allowed". But human-rights commissions have also been moving against expressions of opinion.

Certain human-rights statutes now target statements "likely to expose" people to "hatred or contempt" on grounds such as race, creed, gender, and sexual orientation. Recently, the Canadian and B. C. human-rights commissions took action under those provisions over opinions expressed by Holocaust denier Ernst Zundel and Vancouver journalist Doug Collins. These two men understandably attract little sympathy. But a wise concern for human rights must address not only current cases but also longer-term implications. In short, who else could be targeted under these statutes?

The issue is not the desirability of suppressing hate propaganda, but rather the virtual impossibility of formulating a law so precise that it will net the vituperations of a Zundel without catching a lot of legitimate speech as well.

Consider this situation: One group in this country once called another group "a selfish, devilish operation desperately attempting to gain control over all peoples of the Earth". This statement was made not by anti-Semites about Jews but by Jehovah's Witnesses about the Roman Catholic Church. It expressed the Witnesses' belief that the Church was involved in the very real persecution they suffered under the mid-20th century Quebec government of the repressive Maurice Duplessis. Despite his best efforts to prosecute the Jehovah's Witnesses for this kind of material, Mr. Duplessis was unsuccessful. Happily, there was no law then against such speech. For vulnerable groups like the Witnesses, the right to censure their perceived oppressors has always been crucial. Today, however, the Jehovah's Witnesses could well be nailed for any repeat performance. Thus, the crunch question is: in order to stop a non-entity like Ernst Zundel, to what extent is it worth the risk of muzzling tomorrow's Jehovah's Witnesses?

It might have been acceptable if these laws against hate speech had simply banned incitements of violence. But "hatred" and "contempt" are such vague terms. Remember, free speech is sometimes most important when it expresses strong disapproval. But where does strong disapproval end and "contempt" or even "hatred" begin?

In targeting statements "likely to expose" people to "hatred or contempt", these human rights laws do not require an intention to promote hatred or contempt and there are no defences for truth or reasonable belief in the truth. Suppose, then, a complaint were filed regarding some of the serious scholarship in which it is contended that in certain places occupied by the Nazis, their Holocaust-related activities were enthusiastically supported by the indigenous populations. Couldn't such scholarship be seen as "likely to expose" the people of those places to "hatred or contempt"? Could these human rights laws, therefore, make it an offence to tell the truth about the Holocaust?

Currently the Saskatchewan Human Rights Commission is in proceedings against the Saskatoon Star-Phoenix and a self-styled Christian fundamentalist who had placed an ad in that newspaper. The ad showed a diagonal line drawn through the image of two men holding hands. To be sure, a repugnant ad . Nor was it redeemed by the inclusion of biblical citations. If the newspaper had rejected it, I would have applauded. Illegality is another story.

The Saskatchewan commission argued that barring the ad would interfere minimally with the fundamentalist's freedom of religious expression. According to the commission, he was still free to read his bible, donate money, talk to his fellow believers, and distribute bibles. But, in order to have their views even considered, activists must often employ attention-getting measures. To confine proselytizers to polite discussion is to replace freedom of communication with freedom of soliloquy.

Although the Ontario Human Rights Code has no such anti-hate provision, the Ontario commission has nevertheless been following suit. This commission is now acting against a printer who had refused to print the stationery of a gay and lesbian organization. As a "born-again Christian", the printer insisted that he conscientiously objected to this job. While I share the commission's disdain for this printer's views about homosexuality, I believe that his position should be defended. We should insist that he serve gay people but not gay causes.

In the mid-1990s, a former administration of the Ontario commission proceeded against certain convenience stores for selling allegedly pornographic magazines including Penthouse and Playboy. The complaint was that the stores had created a "hostile environment" for women and had thereby discriminated against them. According to this logic, book stores and even libraries would violate the Human Rights Code by disseminating The Satanic Verses by Salman Rushdie. In view of the many Islamic reactions to Rushdie's "blasphemy", couldn't his book be seen as creating a "hostile environment" for Muslims? If this complaint had succeeded, the Human Rights Code could have become an authority for pervasive censorship.

Thus, tomorrow's Jehovah's Witnesses might well blame the human-rights community for enabling a reincarnated Premier Duplessis to persecute them more easily. I don't believe Canada's human rights activists would wish to create such a legacy. Nor do I believe that such a risk is necessary in order to contain the influence of our society's hate-mongers.

The foregoing was taken from Alan Borovoy's recent address to a conference of the Canadian Association of Statutory Human Rights Agencies, Banff Alberta

Originally published on the Canadian Civil Liberties Association web site at www.ccla.org/pos/columns/human.shtml

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