dave@lsuc.UUCP (David Sherman) (10/11/85)
Rick McGeer has expressed the opinion that convictions under
the Criminal Code of Canada for publishing hate literature or
for publishing false news are a violation of the right of
freedom of speech under Canada's Charter of Rights and Freedoms.
I do not agree.
The following column appeared in The National, the newspaper of
the Canadian Bar Association, September 1985 (p. 37). It was
written by Albert S. Frank, a lawyer in Edmonton.
Reprinted with permission.
* * * * * *
The recent prosecution and convictions of Mr. Zundel and Mr. Keegstra
have dramatically brought to public attention the laws concerning
hate literature. In reaction to these events, Mr. Monopoli, in the
May 1985 issue of The National, wrote an article suggesting that
such prosecutions violate the principle of freedom of speech ("Zundel's
conviction could be Pyrrhic Victory"). In his opinion, no matter
how obnoxious and repugnant hate literature might be, people should
have the freedom to create and spread such material. However, I
wish to suggest that it is perfectly consistent with our respect
for freedom of speech to prosecute hate propagandists.
It is inherent in the notion of human rights that the rights
of an individual must be restricted for the sake of other
individuals. Your right to freedom of action must be limited
out of respect for my rights. If we allowed you a completely
unfettered right of freedom of action, you could physically
attack me or violate my rights in other ways. Surely a respect
for your rights does not require an utter contempt for my rights.
If we take the contrary view, that your right to freedom of action
is absolute, then we are saying that I have no right, not even
a right to live, since you could use your absolute freedom of
action to murder me if you wished. A general respect for human
rights therefore requires that rights be restricted, not absolute.
Like other rights, freedom of speech can be abused to harm others.
A person who uses words to threaten physical violence to get money
is committing robbery, and thereby violating the rights of the victim,
every bit as much as if he said nothing and, instead, waved a weapon
and gestured at his victim's wallet. The criminal law makes this
and other abuses of freedom of speech illegal.
Hate literature is another abuse of freedom of speech which violates
the rights of its victims and can therefore properly be restricted.
Hate literature violates a right which our common law has long
recognized, a person's right in his reputation. According to the
well-established law of defamation, a person has a right to legal
protection from those who would attack his reputation, just as he has
a right to legal protection against those who would attack his person.
According to Black's Law Dictionary (5th ed.), "Defamation is that
which tends to injure reputation; to diminish the esteem, respect,
goodwill or confidence in which the plaintiff is held, or to
excite adverse, derogatory or unpleasant feelings or opinions
against him ... unprivileged publication of false statements."
Thus, the common law recognizes that the right of freedom of
speech does not extend to permit a person to violate the rights
of his victim by making false derogatory statements about him.
Even politicians, who deliberately put themselves in the public
eye and involve themselves in public controversy, are entitled
to such protection, as is illustrated by the case of _Christie v.
Geiger et al._ (Dec. 4, 1984, Alta. Q.B., Foisy J.).
If an individual is entitled to protection against defamation,
surely a large group of individuals should be entitled to protection
as well. Unfortunately, our civil law is not presently a very useful
tool for the protection of the rights of groups. In Canada there
are severe restrictions on class action lawsuits. Furthermore,
the law of defamation itself is designed for the protection of
the individual plaintiff, not the group of plaintiffs.
As was stated recently in the case of _Booth v. B.C.T.V. Broadcasting
System_, 139 D.L.R.(3d) 88 at 92, in cases where the words complained
of are clearly defamatory the issue "is whether the words were
published of and concerning the particular plaintiff who is claiming."
If the civil law cannot protect against a violation of the rights
of groups of citizens, then it is appropriate for the criminal law
to do so. It is especially important to do so since hate literature
has the potential to cause much greater harm than an attack on a
particular individual.
Few people in human history have faced death because of defamatory
statements made particularly against them but millions of people have
been killed because they happened to belong to an ethnic or religious
group which had been the object of hate propaganda.
However, even leaving aside the most extreme results of hate
literature, it would be absurd if a man could sue to protect
his reputation from an accusation of selling shoddy merchandise,
but he and his fellow victims could not obtain either civil or
criminal protection against defamatory statements accusing them
of every evil act known to mankind and of being behind every
disaster which has befallen the human race in the last few centuries.
Nor should we fear that hate literature laws will inhibit proper
discussion of public issues. A true statement, however harsh,
may always be stated. Furthermore, the discussion of public
issues does not require personal attacks. A person could not
be sued or prosecuted for a scathing and inaccurate criticism
of government policy. A citizen has the right to be wrong about
a public issue.
However, if a person goes beyond saying that he thinks a policy
is wrong, foolish or appalling and makes personal attacks on the
politicians promoting these policies, he may be sued and rightly so.
Our devotion to democratic discussion does not require that we
permit false _ad hominem_ attacks on politicians or on anybody else.
The same principles justify the civil law of defamation and the
criminal laws concerning hate literature; they stand or fall
together. Those who are of the opinion that hate literature
is an unacceptable restriction of freedom of speech must, to be
consistent, urge that the tort of defamation be abolished for
precisely the same reason.
It is possible to believe that our defamation and hate literature
laws are acceptable in principle but unsatisfactory in practice.
I have spoken to many people who think that it would be better
to sue hat propagandists than to prosecute them, a view which I
share. The civil law should be reformed to allow class action
lawsuits against those who defame groups.
Until or unless the civil law is reformed, it is good that the
criminal law is available. We must not forget the seriousness
of group defamation. The fact that the hate propagandists use
words in their attacks does not make their behaviour any less a
violation of rights or any less serious than smashing synagogue
windows or burning a cross on a lawn.
* * * * * *
(The National, Canadian Bar Association, September 1985. Copied
with permission.)
Dave Sherman
The Law Society of Upper Canada
Toronto
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