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The Keestra case: Freedom of speech and the prosecution of harmful ideas

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Introduction

Over the past few years, the prosecution of Jim Keegstra and Ernst Zundel for expressing racist ideas have placed civil libertarians at the centre of a prolonged public debate over whether the speech of racists and hate-mongers should be permitted expression in a democratic community. Many members of the public who questioned the prosecution of Keegstra and Zundel, including a few leaders of minority groups, doubted that either would be effectively punished or silenced by such action.

It is difficult to disagree with this assessment given the notoriety and media attention that each received (and continues to receive). However, such considerations do not really amount to a defence of free speech, but a choice between the lesser of evils. The question still remains: Was the democratic principle of free speech meant to encompass hateful expression? Public discussion of these cases lacked any thorough-going consideration of the issues involved in answering this question. Not surprisingly, neither Keegstra nor Zundel made the issue of free speech a substantial part of their defences, preferring instead to use the courts as a vehicle for demonstrating the truth of their cockamamy views about international Jewish conspiracy and “revisionist” accounts of the Holocaust. This article provides the civil libertarian account of why even the hateful railings of the likes of Keegstra and Zundel deserve the protection of the democratic forum. It was written after the prosecution of Jim Keegstra in the summer of 1985 and published by The Canadian Forummagazine in April 1986 under the title “The Politics of Speech”.

Is there anything left to say about Jim Keegstra and his punishment? The slow news months of the Canadian summer [of 1985] made room for hundreds of stories, articles, editorials, reports, letters, and cartoons that addressed the utterances and fate of this dreary man whose mind may safely be said to be one of the most underdeveloped regions of Alberta.

Virtually everyone in Canada has certainly, by now, given some thought to the claim to national significance of a person who believes that both Trudeau and Kissinger are conscious tools of the Kremlin, and who thinks that it makes sense to accuse Jews of conspiring (for centuries, yet) to persuade the human race to embrace an ideology of equal rights. It is tempting to judge that too many trees have already died to make the newsprint for our prolonged peep at this cultural marginalia. Such a judgement would certainly be justified if it were only Mr. Keegstra who has been fixing the attention of the nation and its press. The defendant has been, however, merely an occasion (the second in very recent memory) for Canadians to renew their struggle with the old idea of prosecuting speech crime. Keegstra may soon be restored to the obscurity which his indictment interrupted, but the deep source of the significance of his case is fated—indeed, deserves—to remain newsworthy. The big news is that we—the true North, strong and free—are willing to use the force of the law to suppress offensive talk. This is a durable story, and civil libertarians have a part to play in the thorough telling of it.

The B.C. Civil Liberties Association is, of course, “for” free speech and “against” censorship. We are not, however, “for” Keegstra and “against” those who sought his prosecution. Our position is, unhappily or not, more complicated than that. It certainly does not, at the very least, lend itself to expression in a few clauses, however judiciously chosen by either ourselves or the reporting media. Perhaps now, when at least some of the passion aroused by the Keegstra case has been spent, is the appropriate moment for us to have our say.

Civil libertarians think Keegstra’s obsessive “historical” ravings were at once an abuse of his position as a teacher of high school students and incontrovertible evidence of professional incompetence. No person can legitimately take shelter under the freedom of expression protections of a democracy when the expressions at issue are made while undertaking the public responsibility of educating children. The elementary and high school systems are not viewed by civil libertarians as part of the public forum we seek to protect from censorship. We doubt that it makes sense to apply a notion such as censorship when we judge professional wisdom of what is chosen for the attention of not yet fully-fledged minds.

Far from arguing that Keegstra had a civil right to continue spreading his dreck at Eckville High, civil libertarians wonder (along with the rest of Canada, we hope) why it took twelve years for the local school board to exercise its appropriate authority and fire him. But at least Keegstra was finally fired, and was finally removed from his position as Mayor of Eckville. We were slow off the mark, but Canadians finally did the right thing with the right tools. Keegstra was punished: we had set him aside.

Only to pick him up again in January 1984 as a defendant in a hate propaganda case. It is at this point that the position of civil libertarians diverges sharply from that of so many other thinking Canadians. When Keegstra was charged under the provisions of Section 281.2 of the Criminal Code, he was not being charged with an abuse of his professional position as it touched the welfare of minors (unsurprisingly, since it is not the function of the Code to regulate professional conduct as such), but rather with the general offence of wilfully promoting hatred against an identifiable group. Civil libertarians hold the view—and we have held it since the Cohen Commission recommended the present law in 1965—that the hate propaganda provisions of the Code represent an unacceptable departure from democratic practice that is grounded in an ill-informed notion of what democracy means. Believing this we must believe and urge that Mr. Keegstra should never have been made the subject of criminal prosecution.

Let me state our position (perhaps it would be more forthright to say “our dilemma”) bluntly: we hold that the wilful attempt to promote hatred against an identifiable group is immoral, but we also argue that the expressions that form such attempts must be protected from legal sanction or obstruction. (We emphasize that protection should be limited to “expressions” because we are at least sometimes misunderstood as holding the view that even racist “acts” should be protected as a sort of civil right. Related to this confusion is the interesting claim that there really isn’t any morally or politically relevant difference between talk and action, and that the non-existence of such a difference makes our position nonsensical. Treatment of this form of moral dyslexia would require a separate and more extensive article than this one.) We realize that these two judgements: “Yes, it’s immoral. No, there shouldn’t be a law against it.”—make an odd couple. Having identified the expressions of Keegstra as hateful—and not just aesthetically hateful, but hateful in the serious sense that they strike at our rightful recognition of one another as equal participants in a community—how can we avoid the implication that there ought to be a law to protect us from this threat? Those who oppose the civil libertarian position claim to smell an ideology under this compost of paradox, and dismiss us as impractical and irrelevant ideologues… or much worse. They are, we admit, partly right in this—we do have some ideas; we disagree, however, about the value and significance of those ideas.

We disagree because our main idea as civil libertarians is, in fact, the idea of democracy; and the idea of democracy is not just “our” idea as civil libertarians—it is, if you will, the idea of Canada. The central idea of democracy is, of course, that the only form of government consistent with the dignity of full personhood is self-government. Any other form of government however wise, provident, enlightened, efficient, or seemingly inevitable—is inconsistent with the adulthood of our species. It’s a great idea and, seemingly, an irresistible one. It is impossible to call to mind any contemporary state, however totalitarian in fact, that does not seek to legitimize its dictates by invoking “the will of the people”. We remind (congratulate?) ourselves when we reflect upon nominal democracies that we are citizens of the real thing. We really do rule ourselves; we really are the sovereign authority in Canada. Parliament, legislative assemblies, and municipal councils do not rule us: these are but among the instruments that we use in governing ourselves. All of us are called, as citizens of a democracy, to a perpetual term of office as members of a ruling assembly—and as such we all have work to do that can never be delegated. The hands and minds of sovereign citizens must be free to do their work of ruling, and thus it is that citizens claim a range of liberties and rights not as petitioners or subjects before governments, but as the central branch of government, the legitimate source of all political authority in the state.

If we take seriously the idea that the ruler of Canada is the Canadian people, then we must take seriously a direct corollary of that idea: the mind of every Canadian citizen is an element of the thinking, deliberating and judging intelligence that is the real boss in this country. Seeing this, we must also see that those minds can never tolerate any subordinate authority in the State to pre-empt their ruling work by controlling the access to the public forum of thoughts or expressions. For what kind of ruling authority could accept a censor without realizing that in doing so it was effectively relinquishing its power to confront and make sense of the world by its own lights? A censoring authority controls access to information, and in doing so it controls the minds of those who are subject to it. A ruler who accepts a censor accepts a regent, and the acceptance of a regent is a form of abdication of the sovereign role.

It is these considerations that are at the heart of a democratic people’s insistence upon the paramount status of the right to freedom of expression in the hierarchy of rights it claims as indefeasible Not even a “moral majority” can undertake, in a democracy, to exclude offensive expressions even morally offensive expressions from the protection that we jealously accord the communication of thoughts and ideas in the public forum. The freedom of our forum is not the capricious symptom of some distaste we share for subjecting our public utterances and musings to reasonable limits. It is a condition that our chosen form of government imposes upon us no matter what the demands of taste—even moral taste—wish to impose. Any retreat on this matter signifies the onset of a kind of spiritual amnesia; and if we forget that we rule, we shall not rule.

All this may seem relatively easy to take, perhaps even platitudinous until we get down to cases. Surely we didn’t mean to include that! Not him! Don’t tell us that the advice to hate an identifiable group falls within the range of thoughts and expressions which we must not use the force of the law to suppress! What conceivable role can hate-mongering play in the lofty deliberative work of a ruling people? The answer to this question depends upon the answer to another question: Is it not precisely in those areas of human conflict and disagreement that matter the most to all of us that feelings run highest and form an inextricable element of contending expressions? Or, to put it more bluntly: Who said the deliberative work of a ruling people was going to be “lofty”? The discussion of politics and religion is excluded from genteel barber shops precisely because such subjects are guaranteed to bring forth heartfelt expressions which are inconsistent with easy fellowship and the presence of straight razors. And if you don’t think that race and creed are located in the heartland of contentious concern, ask your barber. The contributions of “the People” (remember us?) to the rather anarchic business of a country thinking out loud simply cannot be limited to the controlled prose of academic journals without being substantially censored. Though it may be regrettable, it is nonetheless true that hatred is a garden-variety emotional posture of persons who are engaged, heart and soul, in the business of disapproving.

A case in point: in a recent issue of the New York Review of Books, there was a caricature, by David Levine, of Prime Minister Botha of South Africa. Botha is depicted by Levine as a glum visage nestling under the helmut of a Nazi soldier. Would it be going too far to suppose that Levine was expressing disapproval of Botha’s policies that was far enough up the scale to count as hatred? And were those Afrikaaners represented by Botha linked, with him, to those features of totalitarianism that the hateful shape of that helmut symbolizes for us? Was Levine promoting hatred of persons or of policies? Are persons and their policies easy for us to distinguish when our deeply-felt antipathy is aroused? And what if Levine had plunked his hat down on someone else? Yasser Arafat. A caricature of a Palestinian. Or, if that doesn’t grab you . . . Ariel Sharon. A caricature of a Jew. Moral, racial, and religious sensibilities are prodded and affronted by such expressions, and the drive to rejoin and rebut is naturally transfigured into the drive to punish by elimination and suppression. But the proddings of our democratic sensibilities (never natural, always the tender creatures of assiduous cultivation) must tell us then that we cannot choose to protect or punish expressions by counting up the numbers of the oxes that are gored, or by attending to their colour. For if that is our policy, we are clearly foreclosing public expression on matters that belong on the agenda of those who rule.

A democratic people that is self-conscious about its project of self-government cannot take refuge in legal instruments of censorship and repression when its way of thinking is threatened by public expressions of racial or religious hatred. It cannot delegate to either its legislative or judicial agents the related tasks of judgement and engagement that the continuing presence of hateful speech imposes upon it. And judge and engage we must! The insistence of civil libertarians that we provide political freedom even for the ideas of Keegstra and Zundel is not to be equated with any soft-headed notion of general tolerance. A commitment to the protection of free expression is not a programme of glad suffering of fools and foolishness. We must all, as both ruler and as individuals, live lives of judicious intolerance for hateful ideas and expressions. It is, of course, tiresome to engage the thin-witted and their noisome ideas, and it is irksome to realize that there is no respite from this duty to be hoped for. Both experience and reason concur, however, in recognizing that only such a programme of democratic responsibility can be at once effectual in changing minds (slowly, oh so slowly) and consistent with our recognition in one another of a collegial identity.

Even those who hear all of this and own the general force of it often have a special objection to make in connection with cases such as Keegstra’s and Zundel’s These two men have taken into their mouths one of the most horrific and significant elements of the Jewish experience and made it filthy with a denial of its very existence. The “idea” that the Holocaust did not occur is so palpably wounding that it is arguable that its expression stands apart from other thoughts and words in a class all of its own. Here, it is objected, is a special thought which demands, even if no other thought does, formal repudiation by the State. No other reaction, it is argued, can begin to restore the balance of our senses; no lesser response could reaffirm and hence at least partly restore our sanity

I have no right to speak of the Holocaust. I am not a survivor; I am not a relative or friend of one of the murdered; I am not a Jew. Nevertheless, I must, as must all morally alive persons, struggle to understand what the lesson of the Holocaust is. If we don’t let the world teach us, the world will teach us a lesson. But what were we taught? What must we grasp in order to avoid being taught another lesson? This is too huge a question to be handled in an adequate way here, but let me identify at least one misinterpretation of the oracular voice of history.

Proponents of this interpretation hold that the Holocaust teaches us that we must not be wholehearted in our commitment to the project of self-government. We must not trust the uncensored, unobstructed expression of thoughts and ideas that is the mark of a people who rule themselves. We must, in order to forestall evil actions, forestall at least some evil thinking and saying. We have to draw the line somewhere, and those who remember what happened will choose to draw it short of the historical revisions offered by Jim Keegstra and Ernst Zunde1. This is not the lesson of the Holocaust—and on this point I have a right and duty to speak as a citizen.

Before the Nazi deluge, Germany had a system of hate propaganda laws that were far broader and more strict than those of the Canadian Criminal Code. Prosecution of anti-Semitic expressions were initiated, fought, and carefully reported by the Central Verein Deutscher Staatsburger Judischen Glaubens (Central Union of German Citizens of the Jewish Faith). The records of the Central Verein reveal that over 200 prosecutions of anti-Semitic propaganda went forward over a period of about 15 years, and of these, about 10 percent were regarded by legal staff of the Central Verein as objectionable in the sense that they eventuated in verdicts that were either absolutely unjust or too lenient. This means that by their own standards of success the German Jewish community enjoyed a success rate of about ninety percent in prosecuting anti-Semitic insults. In at least one reported case, a street conversation between two persons that was overheard by a Jew was the basis of a prosecution. Nor was the scope of the prosecutions limited to small fry: Joseph Goebbels was convicted twice — sentenced once to six weeks imprisonment and once to three weeks for insulting Bernard Weiss, a Jewish deputy police commissioner in Berlin; Julius Streicher and Karl Holz, editors of the Nazi newspaper Der Sturmer, were convicted and sentenced to prison terms of four months and one year respectively. It is true that some managed to stall long enough to avoid actual imprisonment, and that some few members of the judiciary were sympathetic to the defendants; but in general both the judiciary and the German people acceded to a remarkable campaign on the part of German Jewry to use the power of the State to punish anti-Semitic propaganda.

The point of this story is not that the work of the Central Verein was a failure. The point is that the success of the prosecution of anti-Semitic propaganda and insults was of that tragic kind that we term self-defeating. The prosecution became, unsurprisingly, a sustained public drama that fed—though most certainly did not inspire—the emerging mythologies of Jewish conspiracy and Aryan martyrdom. The role played by these myths in the developing insanity of fascism does not need to be recounted here.

It would be stupid to pretend to discover the cause of the Holocaust in the work of the Central Verein. It would be equally idle, however, to represent a program of censorship as the weapon to use in the pacification of racist minds. In fact, if history has any practical lesson to offer in this connection, it is that minds and ideas—evil or otherwise offer a protean resistance to repression. And when we consider the forms of repression that can imaginably be embraced by a democracy (our hate propaganda laws, for instance) it is difficult to foresee their use producing any result other than the provision of a public focal point for minds and ideas that positively thirst for publicity and a sense that they belong at the centre of things rather than at the edge.

The history lesson that bears remembering now is that the failure of German democracy was, most emphatically, not attributable to German resistance to the control of hateful expressions. German democracy failed because the citizens of the Weimar Republic did not take responsibility for the course of their politics. They disengaged; they stood by; they waited for direction; they forgot that as self-governing women and men they must always think and live the lives of rulers. Their acquiescence to censorship of hate propaganda was not an anomaly: it was a symptom of their general conditions of readiness to be ruled. And they got their ruler….

In fact, because of the heart-stunning scale of the evil of those who came to rule in Germany, it can be said that we all “got” the Nazis. They provided us with a lesson in unbuttoned enthusiasm for thought and speech control that has made the swastika the emblem of all those whose politics run to the repression of minds and ideas. Millions died in the successful struggle to defeat a Germany gone mad. Many thousands of Canadians died, a significant proportion of them in the belief that they were making the world “safe for democracy.” Those words (offered first by President Wilson) have been, as we all know, made sour for us by our powerful neighbours; but they still mean now what they meant then. And they never meant “safe” is the same as “happily ever after.” They meant “safe” in the sense of “possible again.” We can, just possibly, still take seriously our commitment to govern ourselves. We shall have to do and bear much in the process—not the least of which is the determined provision of political freedom not only for the thoughts that we love, but also for the thoughts that we hate. And as the great teacher put all spiritual temporizers in their place: “If not now, when?”