by Propaganda
previous concerns: a large volume of advertising may be thought to curry favour with
the media whose pockets are thus lined with lucrative contracts.
ConTRoLS on HATE PRoPAgAnDA
The need for some kind of control over hate propaganda was mentioned in Chapter
6 in connection with the Report of the Special Committee on Hate Propaganda in
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Canada (also known as the Cohen Committee). Internationally, there is also a consensus for such a need, and agreements to institute and enforce such controls have
been implemented. But international agreements tend to combine calls for prohibi-
tion against, say, racist speech, with ringing affirmations of the right to freedom of
expression. This leaves the judiciary much to do in the way of interpretation. The UN
International Covenant on Civil and Political Rights1 is one such agreement. Under
Article 20, it prohibits propaganda for war and advocacy of national, racial, or reli-
gious hatred that might lead to violence or discrimination. Balancing this is Article
19, which guarantees the right of individuals to freedom of expression and the right to
hold opinions without interference as long as these rights do not infringe on the rights
of and respect for others or with national security or public order. The United Nations
also passed the International Convention on the Elimination of All Forms of Racial
Discrimination, which condemns propaganda and organizations based on racist or
discriminatory theories and which vows to adopt measures to counter incitement to
or acts of such discrimination.
The European Convention on Human Rights in its Article 10 also provides for a
balancing of free speech rights—both freedom to hold opinions and ideas and to receive
and impart information without interference by governments—against other rights,
such as national security, public safety, prevention of crime, protection of health, pro-
tection of reputation, and maintaining the authority and impartiality of the judiciary.2
The Canadian Constitution since 1982 has incorporated a Charter of Rights and
Freedoms, which builds in restrictions on the extent to which rights, such as freedom
of expression, might otherwise undermine perfectly good and sensible law. The main
restriction of this kind is section 1 of the Charter, which “guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.”3 It incorporates many of the
exceptions that judges in the United States have found necessary to recognize, despite
the uncompromising wording of some of the US Constitutional Amendments.
Hate Propaganda and the Supreme Court of Canada
We will briefly examine two cases that have been at the centre of constitutional debate
about hate propaganda in Canada. The first involves Ernst Zundel, who published
materials denying the Holocaust, the massive and systematic killings of Jews in areas
under Nazi domination during World War II. The statute under which he was ini-
tially convicted—the “spreading false news” statute, s.181, of the Criminal Code of
Canada—was considered by the Supreme Court of Canada to be too broadly drawn,
and it was struck down. When a statute is too broad, it threatens more speech than
the kind targeted by the legislation.
A few points of interest pertaining to the Zundel case are worth mentioning. The
“spreading false news” provision did not require the consent of the attorney general
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to launch a prosecution, in contrast to Canada’s hate propaganda law, s.318 and s.319
of the Criminal Code of Canada. In striking down that statute, the Supreme Court
weakened the power to stifle hate propaganda because an offended individual cannot
launch a criminal action merely by going to a Crown attorney. For exactly this rea-
son, it removed or reduced at the same time a possible source of intimidation against
free speech. Secondly, the “spreading false news” statute, unlike the hate propaganda
provisions, is specifically linked to speech that is false and, furthermore, speech that
the speaker knows to be false. In other words, this statute criminalizes lying speech that causes harm. It shares this feature with s.300 of the Criminal Code, which states
that “Everyone who publishes a defamatory libel that he knows is false is guilty of an
indictable offence and liable to imprisonment for a term not exceeding five years.” To
the extent that we rely on Mill for the philosophical underpinnings of free speech
protections, we have reason to question whether they support the protection of lying
speech. Recall that Mill was concerned to defend the professing and discussing “as a
matter of ethical conviction” of any doctrine “however immoral it may be considered.”
Someone who lies is not defending what the lie purports to say “as a matter of ethical
conviction.” The liar may want to defend the use of the lie as an instrument to accom-
plish something good, but that is very different from defending what the lie purports
to say. From the standpoint of Mill’s most basic defence of free speech—the argument
for giving truth the best possible chance of a hearing—lying speech hardly warrants
any protection at all. From a practical standpoint, it may still make sense to include
lying speech in the protected category, simply because of the difficulty of establishing
that false communications are not lies. But that is different from saying that as a matter
of principle lying speech deserves protection on its own merits.
Zundel was acquitted eventually because the law under which he was convicted
was found to be overbroad. By contrast, an Alberta high school teacher was found
guilty of violating provisions of the hate propaganda legislation in the Criminal Code
of Canada. James Keegstra was charged in 1984 under what is now s.319(2) of the
Criminal Code for teaching and requiring his students to repeat in class and on exams
that “Jewish people seek to destroy Christianity and are responsible for depressions,
anarchy, chaos, wars, and revolution. According to Mr. Keegstra, Jews ‘created the
Holocaust to gain sympathy’ and, in contrast to the open and honest Christians, were
said to be deceptive, secretive, and inherently evil.”4 He was convicted; the conviction
was reversed on appeal, but he was reconvicted upon retrial after the Supreme Court
of Canada upheld the constitutionality of the law in 1990.
The Supreme Court had to decide whether the section of the Criminal Code
under which Keegstra was charged was an infringement of freedom of expression as
guaranteed by the Charter, and if so, whether the infringement could be justified by
s.1 of the Charter. Secondly, it had to decide whether the presumption of innocence,
also guaranteed by the Charter, had been infringed by virtue of putting the burden of
proof in a truth defence on Keegstra to support the truth of what he allegedly said,
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instead of requiring the Cr
own to prove its falsity beyond a reasonable doubt. In the end, although it ruled that the law did infringe both rights, the infringements could
be justified by s.1 of the Charter.
In his judgment on the case, Chief Justice Brian Dickson reviewed some of the
US constitutional history of freedom of expression. He noted that the 1952 ruling in
Beauharnais v. Illinois,5 wherein the US Supreme Court upheld a statute against group defamation, had been subsequently weakened but not overturned. Interestingly, in the
light of the Zundel case, he noted that the effect of some subsequent decisions had been
to “protect public invective as long as the speaker has not knowingly lied and there exists
no clear and present danger of violence or insurrection.” However, doubts about the
tenability of the Beauharnais ruling were raised in 1978 by the decision that a municipal ordinance prohibiting public demonstrations inciting “violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic,
national or regional affiliation,” was unconstitutional.6 The ruling gave members of the
American Nazi Party the right to march in the Jewish suburb of Skokie, Il inois, where
many Holocaust survivors resided. Despite the ruling, in the end no march was held.
Dickson favoured the Beauharnais ruling, noting that a growing body of aca-
demic writing supported the idea that the First Amendment can be squared with
restrictions on racist and sexist speech. US constitutional history shows that the courts
are not always content-blind when evaluating the extent to which different forms of
expression merit protection.7 Dickson concluded that, despite the uncompromising
wording of the First Amendment—“Congress shall make no law ... abridging the free-
dom of speech, or of the press ...”—it is far from clear that a law such as the Canadian
hate propaganda legislation would necessarily be found unconstitutional in that coun-
try. He also mentioned the pernicious effects on society of hate propaganda, drawing
on material from the Cohen Committee, including the quotation from Justice Jackson
of the US Supreme Court in Beauharnais about how hate propaganda’s “sinister
abuses of our freedom of expression ... can tear apart a society, brutalize its dominant
elements, and persecute even to extermination, its minorities.”8
Dickson thought hate propaganda ranked low among the kinds of expression
meriting protection when considered in light of the core values that the Canadian
Charter of Rights and Freedoms was designed to uphold. He said, “I am of the opin-
ion that expression intended to promote the hatred of identifiable groups is of limited
importance when measured against free expression values.” In giving his reason for
this opinion, he eschewed relativism regarding truth. His position is that we do have
greater and less certainty about different things, and this is not a purely subjective
matter. We can be fairly sure that some things are erroneous, and erroneous things are
going to be less helpful for discovering truth. He depicted hate propaganda as detri-
mental to truth and unlikely to lead to a better world.
Dickson argued that the word “hatred” must be defined according to the con-
text in which it is found. In his view, the word “connotes emotion of an intense and
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extreme nature that is clearly associated with vilification and detestation.” He also identified it with specific characteristics as follows:
Hatred is predicated on destruction, and hatred against identifiable groups therefore
thrives on insensitivity, bigotry and destruction of both the target group and of the
values of our society. Hatred in this sense is a most extreme emotion that belies rea-
son; an emotion that, if exercised against members of an identifiable group, implies
that those individuals are to be despised, scorned, denied respect and made subject
to ill-treatment on the basis of group affiliation.9
Whether or not one agrees with this contextual interpretation of hatred as a
rendition of ordinary English usage, the result of this legal, authoritative analysis is
to narrow the scope of the term for purposes of the law. As if to anticipate that not
everyone will automatically think of hatred in the way he describes, Dickson indicated
that future juries should be directed by judges in such a way as to “include express
mention of the need to avoid finding that the accused intended to promote hatred
merely because the expression is distasteful.” That warning will help, he thought, to
avoid limiting freedom of expression more than is necessary.
Dickson wrote the judgment of the Supreme Court of Canada. This means that
the scope of “hatred” for purposes of the law is what he said the scope is. To whatever extent ordinary English may be vague about the scope of “hatred,” that vagueness is
removed by the decision of the Court.
Some qualifications should be made here. First, hate propaganda is not defined
in terms that require falsity in the statements. One very effective way of fomenting
hatred is by uttering a selection of truths to create an unbalanced view of another
individual or group. Secondly, according to Mill, truth is not a matter only of corre-
spondence between what a person believes and reality; it can be a matter of the vitality
with which a belief is held, and that vitality can be stimulated by lively opposition.
Dickson recognized this point in a later caveat, saying, “It can also be argued that it is
partly through a clash with extreme and erroneous views that truth and the democratic
vision remain vigorous and alive,” but that did not cause him to alter his opinion. It
is not difficult to see why this consideration should be less than fully persuasive. The
frame of mind of the hate propagandist, as narrowly defined, is not one of openness to
discussion. Beliefs gain vitality when they are challenged under circumstances where
there is something to be gained by defending them, not where rampant prejudice
excludes a fair hearing. Also, there is the idea that there will be some truth somewhere
in what motivates the hate propagandists. By allowing them to express themselves, we
will have a better chance to discover whatever truth may be behind the nonsense they
often propound. Dickson did not say that because hate propagandists have very little
chance that “their vision of society will lead to a better world,” their speech should
be criminalized, but that in the overall balancing process this feature should count to
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some extent in the decision to give constitutional acceptance of such criminalization.
That is why it is important to see all the nuances of the argument from truth.
In my view, hate propaganda has the potential for setting off a destructively vicious
spiral of racially or ethnically motivated attacks by one group on another. As such, it war-
rants the seriousness of criminal sanction—but only as a last resort. The chil ing effect
can be greatly reduced if people are instructed to see the law as one of rare application. It is a matter of educating attorneys general as to how the law should be app
lied.
Wayne Sumner, in his article “Hate Propaganda and the Charter of Rights,” gives
reasons for turning away from a civil libertarian view of the anti-hate law to one at least
not hostile to it. First, such law seems to have a chilling effect on the actual targets of
the legislation, the hate-mongers themselves. Another is a disposition among otherwise
perfectly ordinary Canadians to be receptive to messages of hatred and intolerance,
such as those spread by Zundel and Keegstra. Further, the targets for Canadian hatred
have multiplied—not only Jews but francophones, native peoples, blacks, Asians, and
Muslims have been subjected to racially or ethnically motivated attacks. More recently,
“sexual orientation” has been added to the categories designating an “identifiable
group,” and the judiciary could conceivably use constructivist principles to deem the
law to include women as an identifiable group. Sumner concedes that the empirical evi-
dence to support the law is not strong, but neither in his view is there much support for
the civil libertarian position that the law has been ineffective and counterproductive.
In light of the safeguards built into it, he feels that “there is no convincing case against
the statute in its present form” but that we should hold our views on the matter with
“considerable modesty and circumspection,” given the many uncertainties involved.10
Consistent with his view that empirical evidence is vital to proper determination
of whether the law should be upheld or not, he has more recently returned to a civil
libertarian position and now opposes the law, based on careful scrutiny of costs and
benefits of the law between the time of his earlier writing and that of his publication of
The Hateful and the Obscene in 2004. Referring to laws imposing a content restriction on hate speech, he writes, “legislation of this sort cannot survive an objective cost-benefit analysis: the equality benefits it promises are too tenuous and uncertain to balance the
liberty costs which it imposes.” He acknowledges, though, that “calculations of social
consequences on a large social scale are always open to doubt,”11 and that with changing
circumstances the balance of evidence could tilt in the other direction again.12