The War of Freedom of Expression


"Taking on anti-Semites and Holocaust deniers in the sanctified
courtroom environment is like responding to someone who calls your mother
a prostitute. By defending you raise the question that maybe she really
was"
Anonymous source drawn
from Weiman and Win,
1986.

The right to freedom of expression can be described as a war. It is a
war that has lasted for centuries and may last for centuries more. It is a war
between freedom of expression and social intolerance. In this war there are
many battles. The battle on which this brief essay centers itself is the battle
between freedom of speech and laws limiting that freedom; more specifically the
ability to spread hate propaganda and the "hate laws". Included in the essay is
a brief outline of one skirmish that has taken place (Keegstra ). Those who
fight on the side supporting freedom of speech do so for several reasons. Braun
declares that it is a basic democratic right to voice your own opinion .
Douglas Christie has gained notoriety for his vigorous representation of high-
profile, controversial clients, charged under the hate laws. He advocates
freedom of speech for two main reasons: a) he finds it abhorrent that the state
can legislate thoughts and words, and b) he often agrees with the views held by
his clients. Others such as Noam Chomsky, a brilliant intellectual, argue not
for the views expressed, but the ability to express them. Lining up on the
other side of the battle you have: Derek Raymaker, David Kilgour, Victor Ramraj,
and Bruce Elman. They argue that there is definitely a moral place for laws
regarding hate speech, whether they are criminal or not. There was recently a
new development in the Canadian war for freedom of expression. Introduced in
April 1982 was a new and important strategic battleground.
With the Charter of Rights and Freedoms the war could be won or lost by
either side. It was not long before the Charter saw battle.
In 1984, Jim Keegstra was charged with violating section 281 of the
Criminal Code of Canada (now covered under section 318-320). Keegstra was a
respected school teacher and mayor of the small town of Eckville, Alberta. This
was no borderline fanatic; this was an elected official charged with promoting
hate. However by the time Keegstra's trial rolled around he was no longer the
mayor Eckville and his teaching license, revoked. The problem was, the very
nature of s. 281 lent itself to legal debate under section 2 of the relatively
new Charter of Rights and Freedoms. The defense counsel Doug Christie lost no
time in challenging the legislation's constitutionality. In response, Crown
prosecutor, Bruce Fraser, stated that Keegstra was being charged with promoting
hatred; not expressing it. The Crown also stated that freedom of speech is not
an absolute right . On November 5, 1984, Mr. Justice Quigley of the Alberta
Queen's Bench wrote an eighty page decision upholding the constitutionality of
section 281. In his decision he stated "It is my opinion that s. 281.2(2)
cannot be rationally considered to be an infringement which limits 'freedom of
expression' but on the contrary it is a safeguard which promotes it."
When the issue finally rose to the Supreme Court of Canada, the
advocates of hate laws had won a very shallow victory. The split of the court
was 4-3, leaving uncertainty as to who had actually won.
It is too subjective to view the problem of freedom of expression as
"good" versus "evil". The debate raises the main issue of whether or not the
people of Canada want the government to be passing any laws limiting our rights
to think and speak. While it is nearly unanimous that violently acting on these
views is illegal; the debate on laws against speech of any sort draws not only
racists, but simple liberals who believe in the freedom of speech.
Braun outlines the argument against any criminal limitations on freedom
of speech. First, he states that one of the basic premises of democracy is
that: "A self-governing people that have the right and ability to decide for
themselves whom to believe must surely have the right and ability to decide what
to act on." Another point made by Braun, in the same article, is that the
right to legislate against words, even narrowly defined such as words of
'incitement' "tends to erode the political process of talking and genuine
debate." Other such arguments rise up against the legitimacy of such hate laws.

Douglas Christie, in Zundel, declared that the right to a minority
opinion was at stake. In his address to the jury he asked "What are we
lobotomized idiots, that we can only accept the viewpoint of the majority? ...
Do we never