Noa Mendelsohn Aviv, Director, Freedom of Expression Project, Canadian Civil Liberties Association, was the third and final speaker on the morning panel of the Joseph Howe Symposium.  She was immediately preceded by Nova Scotia Human Rights Commission Director Krista Daley, whose remarks are posted here.

What follows is based on my own audio recording made at the symposium.  The transcript of that recording has been lightly edited for intelligibility.

(This post is far longer than the previous one of Krista Daley’s remarks, even though both had the same allotted time, because Ms Aviv read from a prepared text and spoke much faster than Ms Daley.)

Noa Mendelsohn Aviv

Before we start talking about what’s legal and, more importantly, what should be legal, I want to talk very briefly about the phenomenon of language creep—the shifting meanings, associations, and emotions that we associate with words over time.

Like, the metamorphosis of the word “gay”.  This once meant happy, then it meant funny in a sinister kind of way, and now it means homosexual and proud, usually, as in most gay pride and gay rights movement’s names.

Or take for example the word “America” and the United States flag.  It wasn’t that long ago that for many people around the world these stood as symbols for democratic principles, basic rights and freedoms, but today, to many people around the world, including in North America, the American flag feels distasteful.  It represents, to many, imperialism, arrogance, and a violation of those very same principles and freedoms.

Which leads us to today’s topic: freedom of expression.  This has been a fundamental right, the virtues of which have been extolled through the ages by philosophers, thinkers, judges, and so forth—and yet for many free speech has lost its purity and its sheen.  And it’s little wonder when we look at who has been flying this flag.

Take, for example, the Canadian Association for Free Expression, a lovely little group with a website that has contributions from Nazi-affiliated Paul Fromm.  The website keep us updated on such Canadian heroes as Doug Christie, the discredited anti-Semite David Ahenakew, and poor old Ernst Zundel (the website follows his trials and tribulations).  In short, the Canadian Association for Free Expression is a website by white supremacists, for white supremacists, about white supremacists, and I felt dirty just having to do the research on it.

But when it’s not the white supremacists talking about free speech, who else is it?  Well, often it’s the religious fundamentalists who want to vilify gays, or it’s the Islamophobes who want to spread hatred and fear about a group that has become more and more vulnerable in our society.

So, it’s not surprising that this most vital of democratic freedoms now earns a shudder and sense of disgust from many good caring individuals.  The equality seekers who believe in the dignity and worth of all individuals have grown deeply suspicious of supporters of freedom of expression and everything they stand for.  And, as you may be able to detect, I have a lot of sympathy for this position.

But. Oh, before we get to the “but”, I should also say that CCLA as an organisation has worked for many decades for equality rights in employment, reproductive freedom for women, same-sex marriage, and the list goes on.  CCLA also supports the human rights commissions—and we need to state this because of all the rhetoric that’s out there—in their primary and original goal of fighting acts of discrimination in employment and housing and so forth.

And, despite the excess of horrible kangaroo courts jokes that are out there, these commissions are simply administrative tribunals.  They are no more marsupial or jumpy or hoppy or pouchy than many other administrative tribunals that are out there that are also run by non-judges using informal rules.

So, when it comes to questions of equality, I personally and the organisation I work for stand together with the equality seekers.  Despite this—I would say, because of it—we still strongly support robust protection for free expression.

Briefly, here are some the reasons—and forgive me if some of these are obvious.

First of all, living in a democracy, we need to be able to criticise government policy or, like Joseph Howe, government officials.  We need to be able to blow the whistle on employers and other power brokers.  We need to talk about each other’s baheviour as well and argue about questions of morality and behaviour.  What is fair, unfair, right, wrong?  We need to search for truth and we know that the best way to think critically is to puzzle through different sides of the argument.  That means they all have to be out there.

We need our freedom of expression in order to shed light on injustice.  Those of you who saw the horrible incident involving Robert Dziekański being tasered and killed at the Vancouver Airport will know how effective that video was in restricting the use of tasers by police forces across this country. Robert Dziekański might have died without that kind of impact if the video hadn’t been distributed on YouTube.

And finally, despite this sense that freedom of speech and equality are often seen as being irreconcilable to each other, we know as an organisation that has fought for equality, we rely on the fact that expression is the weapon of the weak, that every battle for equality has required that minority voices and disadvantaged voices be heard.

So, one thing that we’re hearing a lot from those who wish still to restrict speech—offensive speech, hateful speech—is, “OK, Noa, keep the good stuff, keep those whistle blowers.  It’s just the nasty horrible stuff we want to restrict.  Our laws tell us that they can tell the difference, our tribunals tell us that they can tell the difference.”  I contend that they can’t, and I’ll get into some of the details in a moment.

The law is too blunt an instrument and so what we’ve witnessed in recent times is a strange conglomeration of press, religious publications and speakers, and even equality seekers who’ve had to cope with human rights complaints against them.  And, in any event, what the law doesn’t tell us is: What if the hatred we’re expressing is against a group that’s worthy of hatred, like white supremacists?  And how are we going to tell if the group is worthy of our contempt or not if we can’t talk about it?  How do we distinguish between a debate that is about the unethical promotion of hatred and inequality and other topics of debate?

And, maybe most importantly, what happens when we—whoever “we” might because there’s probably a lot of different we’s in this room—become the minority?

So, here are my examples. I’ve got a whole bunch of them because this is a complicated question and reality has shown how complicated it is.

A few years ago, the question of same-sex marriage led to a raging debate across this country.  Parliament and the Supreme Court received countless submissions from groups on both sides of the argument.  Those who opposed same-sex marriage brought foward religious, moral, psychological, sociological, and other resources and arguments about why same-sex marriage was bad for society, bad for children, etc., and you can imagine how hurtful, offensive, and even hateful some of those arguments surely were.

But what would the alternative to this debate have looked like?  Should the Supreme Court have made a decision like this without hearing all sides?  Should Parliament have said, “Sure, come on in and bring your submissions, except for you people who are anti-equality”?  The debate was a real one, the question of fundamental importance, and the results tremendous.  Canada was one of the first and still one of the only countries in the world to have recognised same-sex marriage.  It would have been far less of a victory if it had been accomplished in an unbalanced, undemocratic kind of way.

So, how do we separate the good speech from the bad?  Well, none of the submissions to Parliament or the Supreme Court went before a human rights commission, but a tiny little conservative Catholic magazine called Catholic Insight did have a complaint lodged against it for having made the same kind of arguments relying on the same kinds of religious, psychological, scientific, etc., texts.  And the Canadian Human Rights Commission eventually dismissed the complaint.  The process works?  Well, the magazine is still facing judicial review of that decision and so far has spent, according to them, over $20,000 in legal fees.  Is that a victory?

What if the gay rights activist wanted to respond in kind and say fighting words against the Catholic magazines and others who support them?  Or what if a group of feminists get up, as happened not so long, and denounced the practice of polygamy and all who practice it?  Would this be the good equality-seeking speech that we like, or would it be hateful speech against a particular religious group?  You tell me.

Or take the publishing of the Danish Mohammed cartoons.  These cartoons, besides being provocative, really were offensive.  They included a lot of stereotypical images of Muslims.  But they were also the subject of enormous international attention, as we know.  Should they have been banned from public view?  That complaint before the Alberta Human Rights Commission was also dismissed.  It took a mere two years and a reported $100,000.  Yet another victory for free speech, right?

As we know, the complaints against Maclean’s magazine were dismissed because they were not hateful enough.  But if we look at the hallmarks of hate as set up by that same commission, it’s very hard to understand how they reached their conclusion.  In that article, Muslims were compared to mosquitoes; they were portrayed as violent, aggressive, interested in world domination—how more hateful can you get?

I’ll give you two more examples and then move on to another point.

“Israeli apartheid”—Now there’s a term that has university administrators completely befuddled.  Is this legitimate political expression of advocacy for the disadvantaged and oppressed, or is it thinly veiled and unfair anti-Semitism?  Does it have to be one or the other?  The attempt to put this kind of speech in categories is what our hate speech laws require.

And if you think Israeli apartheid is an offensive term, listen to this.  I’ll skip bits of it, but it starts like this.  I quote:  “Pick a Muslim country, any Muslim country, and the most brutal humiliations will grab you by the vitals.  In Pakistan, an average of two women every day die from honour killings, often with Allah’s name on the lips of the murderers.  Then, we go on to Mali, Mauritania: slavery by Muslims; in Sudan: slavery by Muslims, Christians being shot point blank by Muslims, and so on.”

I skip on and I’m quoting still: “Even in Toronto, whose culture differs markedly from that of Bangladesh, a cruel crude brand of Islam thrives.”

That’s a horrible passage, isn’t it?  Well, those of you who read the Maclean’s article might remember that this wasn’t in it.

[Holds up copy of The Trouble With Islam, by Irshad Manji. Cover at left.]

This was written by Irshad Manji, a self-identified Musim woman who is trying to call for reform in her faith.  She’s never been subjected to a human rights complaint so far.  But how would the commissions know whether this is hate speech or self-critical speech calling for reform?  And again, can we tell the difference?  Does it matter?

So, if the chilling of everybody’s speech—and it is everybody—is affected by these hate speech restrictions, what are the benefits?  What have we gained by them?  I appreciate that some of the speech really is hard to take; it really is hurtful and has an impact.

But law is not the only way to effect change.  What these laws are doing is creating risks, and there are other means at our disposal, like social pressure and disapproval.

David Ahenakew said some horrible things about Jews, about them deserving to die under Hitler during the Holocaust, etc., etc.  After he said these things, his world fell in.  He was vilified, he was ostracised.  It was public pressure and outrage, not the law, that resulted in his being stripped of his formal leadership position in the First Nations community, stripped of his Order of Canada.  It was because of public pressure that he publicly apologised, that he lost the respect he had been held in, that many leaders in the First Nations community distanced themselves from him and reached out to build bridges with the Jewish community.

So, first of all, this guy showed his true colours and some good resulted from the horrible things that he said.  They did try and convict him under hate laws—what have the hate laws accomplished in the David Ahenakew case?  So far, three years-plus in, no conviction, but every time there’s an appeal we have to hear once again the awful stuff that he said.

I’ll conclude with the following thoughts.

First of all, as some of us probably have noticed, the world we live in is not a perfect place.  And so, those of us who have idealistic values, it’s going to be disappointing to conclude that we’re not going to reach a perfect answer.  But we’re not.

Secondly, if we truly accept that there is value in diversity of opinion, in freedom of conscience, in freedom of belief, then we’re going to have to accept that other people are going to vocally express beliefs that we find silly or offensive and in some cases even repulsive.

From a more mercenary perspective, at least in this way we’re helping to secure a basic foundation of values that will protect us and our beliefs, even when we—whoever “we” is—are no longer in the majority.  For now, that is the equality-seekers, but not all equality-seekers agree on all fronts.

Finally, free expression, despite those people who are still fighting it, is a flag worth flying.  It has value not just in its own right—for creativity, for innovation, for self-fulfillment—but it’s a right on which many of our other freedoms depend, including equality.  We can’t search for truth, fight for a fair society, protect minority interests, shed light on injustice, without having open and robust debate, without having a free press, without having free expression tucked into our back pockets in case we need it.  Because chances are we’re going to need it.

Thank you.

Possibly related posts

• 2 December 2008 -- Joseph Howe Symposium videos posted
• 5 November 2008 -- Halifax Free Speech Debates
• 4 November 2008 -- Binks asks a question, but gets no response
• 3 November 2008 -- Ezra Levant’s speaking notes

Tags: Civil liberties, Joseph Howe Symposium, Noa Mendelsohn Aviv
Filed under: Canada, Canadian Politics and Government
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