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341. History shows very clearly that Nazi censorship of the
news media (accompanied by propaganda) facilitated the Holocaust.
No historian or political scientist supports a contrary
proposition.
342. Hitler could not have enjoyed continued support from
Germany's elite or even from ordinary Germans if the German news
media had published stories during the 1941-1944 period about the
shooting or gassing of millions of Jews, not to mention the
killings of many Gypsies and Orthodox, Catholic and Lutheran
Christians.
343. Hitler could not have tolerated daily German newspaper
photographs depicting pits full of nude corpses of women and
children or newsreel footage showing the disoriented skeletal
inmates of concentration camps.
344. For good political reasons, the Nazi regime took pains
to conceal the horrific truth from the German population
generally and from Allied governments. Even today, revisionists
seeking to whitewash Hitler find it necessary to dispute the
Holocaust (particularly the gas chambers) for obvious political
reasons. "
(EE) The Alleged Harm Of Hate Speech Has Been Greatly Over-Stated
By The Government, And Is Not A Valid Basis For Restricting
Speech Which Is Not Criminal.
345. This submission of the Press Council has several
branches. First, there is no valid social-science study
supporting the existence of the alleged harm.
346. In the instant case, it certainly cannot be said that
hate speech has rendered minority groups incapable of
participating in political debate. In fact, the evidence
demonstrates that certain vocal and organized minority groups had
the ear of government in relation to the 1993 amendment whereas
the news media had no input whatsoever before the amendment was
tabled in the Legislation. The documents obtained under Freedom
of Information (Exhibit 57, tabs D and E) reveal the following.
There was a meeting between the Attorney General and the
Committee for Racial Justice on June 19, 1992 [page 27],
following which an amendment was proposed to the Police Act
(Uniform) Regulations anticipated to have an impact on the
wearing of turbans by Sikh police officers and preparation of a
cabinet submission to address issues of racism. It is obvious
[page 28] that the Sikh community was consulted and had no
hesitation about expressing its views that the Police Commission
position was "inadequate". Exhibits 26 and 27 also show the
involvement of the Committee for Racial Justice and the SACAR in
direct representations to the government.
347. A briefing note for the Minister of Education and
Minister Responsible for Multiculturalism and Human Rights
indicates that "Mrs. Hagen and Attorney General Colin Gabelmann
will be meeting with Mr. Aziz Khaki, president of the Committee
for Racial Justice on Thursday, Januayr 21, 1993. " Mr. Khaki
will be raising the issue of strengthening the B.C. Human Rights
Act to strengthen the government's ability to deal with hate
literature and hate activities." It is obvious from the balance
of the memo that the ethnic community had the ear of government
and definitely had not been silenced. It was the news media that
was silenced because it was completely excluded from the process.
348. Even before the 1993 amendment to the BC Human Rights
Code, minority groups enjoyed significant protection from hate
speech in the form of both federal and provincial legislation
specifically tailored to meet minority concerns. Those
minorities are not politically marginalized. There is no
evidence whatsoever that they refrained from any form of
political speech because of hate speech.
349. The successful participation of minority groups in the
political process, despite hate speech, is demonstrated by
changes in the law which enhanced their legal position including
the amendment to the Criminal Code which eliminated the offence
of homosexuality and changes in the franchise to permit Chinese
and East Indians to vote.
350. Although Jews are a minority, the fact that the
Canadian Jewish Congress exists and has been able to file and
bring this complaint demonstrates that hate speech has not
chilled Jewish participation.
351. There is no evidence that members of any minority who
otherwise would do so have declined to vote in federal,
provincial or municipal elections because hate speech in this
province.
352. In the United States, where free speech rights are
vigorously protected under the First Amendment, hate speech did
not stop speeches, petitions, public relations campaigns, or any
of the hundreds of other ways the civil rights movement in the
1960's brought significant changes to American law. (See
Appendix A)
353. Historically, free speech has enabled minorities to
bring the majority around to their point of view. We need look
no further than the facts of this case to see that purported
instances of "hate speech" provoke an enormous amount of counter-
speech. This whole prosecution is a form of "counter-speech".
No reasonable person could argue that Jewish organizations have
not been vocal when the Holocaust is questioned. Take the
participation of the Canadian Jewish Congress or that of the
B'nai Brith as intervenors in the numerous cases which have
reached the Supreme Court of Canada. Take the participation of
the Chinese Benevolent Association in this case. By their very
presence, the intervenors argue against the validity of the
proposition that offensive speech "silences" minorities.
354. In California Law Review [Vol. 79:825] "A Libertarian
Critique of University Restrictions of Offensive Speech", David
F. McGowan and Ragesh K. Tangri state at 879-880:
There is good reason to questions whether
offensive speech truly renders social
minority groups outsiders incapable of
participating in collective self-
determination. In the first place, there are
wide areas of democratic choice in which an
individual's status as a member of a social
minority group most likely will be relatively
less important than some other characteristic
she possesses. That a person is a member of
a social minority group should have little to
do with, for example, her views on the
regulation of energy, or whether to increase
taxes, pursue alternative forms of energy, or
pass stricter laws against pollution. To the
extent that in large areas of policy an
individual'' identity as a member of a social
minority is less relevant than other
characteristics, therefore, there is a broad
range of debate in which offensive speech is
relatively less likely to be used and in
which there is a somewhat lesser chance that
members of social minorities will be deterred
from participating.
Within the set of policy choices that overtly
consider race, however, the argument must be
considered directly. At the risk of
appearing simple, we note initially that the
debate over these regulations is
controversial precisely because various
social minority groups have been able, by
reference to the relevant political
processes, to get regulations enacted
protecting them from such speech. Indeed,
social minority groups have been sufficiently
successful in obtaining protective
regulations that at least one of them has
been stricken as unconstitutional (see, e.g.,
Doe v. University of Michigan, 721 F. Supp.
852 (E.D. Mich. 1989)). To that extent, at
least, we may say that although offensive
speech is demeaning and perhaps interferes
with the ability of members of a social
minority group fully to realize their
personality, such speech does not exclude
them from the political process nor prevent
them from becoming part of effective
political majorities that implement sanctions
against such speech.
_
The question is how to combat such costs, and
in particular whether they justify
governmental constriction of the marketplace.
We believe the answer is no.
_
Democracy, however, does not require - and
could never obtain - absolute individual
equality. Some voters, for example, are
simply smarter than others; even voters of
equal intelligence may have different
interests such that they are more or less
willing to bear the cost of becoming
relatively more informed on any given issue.
This argument reflects a more Aristotelian
notion of equality - equality as proportion
rather than as similar treatment simpliciter.
Additionally, to uphold a regulation based
upon individual inequality would require us
to identify the characteristics
differentiating the offense experienced by
different groups, which, as we have seen, is
an elusive task?. At one level, we may say
that when faced with relatively marginal
conflicts such as the one posed by offensive
speech, we prefer market-place skepticism to
a strong version of equality because to do
otherwise would sanitize the marketplace such
that participation in it would be
approximately equal but frivolous.
There is more to the argument than this,
however. Persons offended by racist or
homophobic speech, for example, are, in an
admittedly formal sense, treated precisely
the same as any other person. Thus, should
they wish to reply with equally offensive
speech, they are free to do so. Should they
choose to respond with rational discourse
demonstrating the irrationality of the prior
insult, they may do so and all concerned will
be the better for it.
_
The question then becomes whether formal
equality is so insufficiently protective of
the sensibilities of social minority groups
that members of such groups cannot use
meaningfully the protections of the First
Amendment.
This is a difficult question to discuss in
the abstract. Speech that is offensive to
members of social minorities might well cause
them to feel alienating from society, but it
does not follow that they will stop
participating in the process of self-
governance. We find it difficult to believe,
for example, that members of social
minorities who otherwise would do so will
decline to vote because of the absence of
racist speech regulations, or even because
they were the subject of epithets. We find
it equally unlikely that offensive speech
will stop parades, speeches, petitions,
letter-writing campaigns, or any of hundreds
of other ways in which social minorities
attempt to bring political majorities around
to their point of view. Historically, such
abdication has not been the case. (See, e.g.
Gregory v. City of Chicago, 394 U.S. 111, 113-
30 (1969) (Black, J., concurring). Justice
Black's concurrence describes a march led by
civil rights leader Dick Gregory to the home
of Mayor Richard Daley, which the marchers
then picketed. The opinion also describes in
general the public demonstrations for
equality prompted by Brown V. Board of
Education, 347 U.S. 483 (1954). Gregory, 394
U.S. at 114; see also H. Kalven, Jr., The
Negro and the First Amendment (1966).). If
anything, one might expect the use of
invective to stir social minority groups to
demand redress from political leaders. There
is simply no reason to believe that absolute
(or even substantial) freedom from emotional
distress is a precondition of a democratic
society.
Apart from theoretical probabilities, this
debate asks a largely empirical question that
simply is not susceptible to syllogistic
resolution. Perhaps the most we can say is
that to empower social minority groups
sufficiently for their members to feel free
to take advantage of their first amendment
rights we must grant the government the power
to determine both the degree of offensiveness
beyond which speech may be regulated, and the
validity of the felt offense - whether the
social minority is normatively justified in
feeling offended by any given type of speech.
These powers are enormously broad; assuming
no group may justifiably claim protection
from the offense they feel from "true" speech
they include ceding to the government the
power to determine the truth or falsity of
speech. There could be no plainer violation
of marketplace theory. To borrow again from
Judge Easterbrook:
A power to limit speech on the ground
that truth has not yet prevailed and is not
likely to prevail implies the power to
declare truth. At some point the government
must be able to say _ "We know what the truth
is, yet a free exchange of speech has not
driven out falsity, so that we must now
prohibit falsity." If the government may
declare the truth, why wait for the failure
of speech? Under the First Amendment,
however _ the government may not restrict
speech on the ground that in a free exchange
truth is not yet dominant.
In the absence of compelling evidence
indicating that the marketplace literally
cannot function without such regulations, the
risks inherent in allowing the government so
much latitude justify rejecting the argument
for restrictions, even if there is a cost in
terms of overall participation.
Our final observation about offensiveness
goes not to the role of the marketplace but
rather to the nature of the society for which
it operates. As we have seen, scholars with
both communitarian [see supra note 213 and
accompanying text] and self-governance [see
supra notes 263-65 and accompanying text]
orientations argue that offensive speech
denies members of minority groups equal
membership and participation in governing the
community. As the above arguments
demonstrate, the claim is more about the
participation of groups than the
participation in of any individual within
those groups. Professor Lawrence's assertion
that the market systematically undervalues
the speech of minorities takes as its premise
that the problem stems from the speaker's
group membership and not from what she is
saying.
The kind of remedy that those seeking speech
restrictions desire reinforces the notion
that it is fundamentally groups and not
individuals who are at stake.
_
Perhaps most importantly, individualism is
strongly associated with belief in
individually arrived at, as opposed to group
determined, truth. The corollary is that in
collectivist cultures, it is commonly
understood that "the group that possesses the
truth should run things."
Social science research thus provides
descriptive support for the individualist
assumptions that ground much First Amendment
theory. This is not to ague normatively that
one type of society is preferable to another
(if for no other reason than that the
criteria of preference are likely to be
societally contingent). It is to point out
that since our society is demonstrably
premised on the belief that the person,
rather than the group, is the relevant social
unit, offensive speech restrictions derived
from rationales which privilege group over
individual rights will run counter to many of
our most fundamental premises.
_
Most importantly, New York Times Co. v.
Sullivan [376 U.S. 254 (1964)] established
that not all libelous speech is beyond the
protection of the first amendment. New York
Times' emphasis on falsity led the Court
later to conclude that statements that could
not be proven false could not support an
action for defamation. Statements about
supposedly generic tendencies of a given
group likely will be perceived as statements
of opinion, because listeners will understand
such statements as characterizations rather
than as assertions of fact. Such statements
would therefore receive full first amendment
protection.
Anthony Lewis, in Make No Law: The Sullivan Case and
the First Amendment (Random House, New York: 1991],
discusses the Sullivan case and its importance to the
civil rights movement at pages 34 to 42:
"5. Silencing the Press
_
"To print the truth" sounds straightforward.
After the Sullivan trial it was anything but
that. The rules applied by Judge Jones made
it forbiddingly difficult to write anything
about the realities of Southern racism in the
1960's without risking heavy damages for
libel. Any publication that sent a
correspondent into Alabama, circulated a few
copies there or sold a few ads could be
forced into the state courts. An official
who was not named in a news article or
advertisement could claim, and easily
persuade a jury, that an account of local
conditions inferentially reflected on him.
If the text, read that way, would tend to
injure his reputation, it would be presumed
to be false. The newspaper could overcome
that presumption of falsity only by proving
that every material part o the challenged
statement was accurate. There would also be
an irrebuttable presumption that the
plaintiff had been injured by the
publication, even though there was no
evidence that anyone thought the worse of him
because of it. A local jury could award
damages in any amount.
With perhaps inadvertent candor, the
Montgomery Advertiser headlined a story about
the libel cases: "State Finds Formidable
Legal Club to Swing at Out-of-State Press."
That was the effect, and that was the
purpose. Sullivan and Governor Patterson and
the others were out to transform the
traditional libel action, designed to repair
the reputation of a private party, into a
state political weapon to intimidate the
press. The aim was to discourage not false
but true accounts of life under a system of
white supremacy: stories about men being
lynched for trying to vote, about cynical
judges using the law to suppress
constitutional rights, about policy chiefs
turning attack dogs on men and women who
wanted to drink a Coke at a department-store
lunch counter. It was to scare the national
press_newspapers, magazines, the television
networks_off the civil rights story.
_
The strategy of intimidation by civil libel
suits spread. The Columbia Broadcasting
System was sued for $1.5 million for a
television program about the difficulties
Montgomery blacks had in registering to vote.
Officials in the other Southern states copied
those in Alabama. By the time the Supreme
Court decided the Sullivan case, in 1964,
Southern officials had brought nearly $300
million in libel actions against the press.
Suppose the strategy had worked. Suppose
that Southern judges and juries had had the
last word, that the press had had no higher
recourse in the American system. Suppose
that the Southern officials had collected
those hundreds of millions of dollars in
damages and that the press, or much of it,
had stopped covering the racial story except
with anodyne reports. Would it have made a
difference in the progress of the civil
rights movement? Would it have slowed the
political revolution that overtook the South,
ending the tradition of enforced white
supremacy and bringing blacks into the
political process? Would history have been
changed? Dr. King's own strategy indicates
that the answer to those questions is yes.
Dr. King's model was Mohandas Gandhi, who
undermined the British colonialism in India
by campaigns of nonviolent protest. Gandhi
succeeded because he had an audience, the
British public, that could be touched by his
message and was outraged by the repressive
methods used to put his movement down.
_
The print and broadcast press aroused not
only the public but the politicians of the
North. The South's political defenses
against federal interference with its racial
practices were bound to crumble when the rest
of the country cared enough to make a serious
challenge to racism.
_
Commissioner Sullivan's real target was the
role of the American press as an agent of
democratic change. He and the other Southern
officials who had sued the Times for libel
were trying to choke off a process that was
educating the country about the nature of
racism and was affecting political attitudes
on that issue."
Susan Gellman, in Hate Speech and a New View of the First
Amendment, (1995), 24 Capital University L.R. 309, challenges
the proposition that hate speech silences the speech of others as
suggested by Charles R. Lawrence III, If He Hollers Let Him Go:
Regulating Racist Speech on Campus, 1990 Duke L.J. 431; Mari J.
Matsuda, Public Response to Racist Speech: considering the
Victim's Story, 87 Mich. L. Rev. 2320; Catharine A. MacKinnon,
Not a Moral Issue, 2 yale L. & Pol'y Rev, 321;and Owen Fliss.
Gellman writes at pages309-311, 312, 314, 315:
"_
A. Does Hate Speech Really Silence Others'
Speech?
Professor Fiss and others have advanced the
proposition that hate speech silences or
inhibits its victims' speech as a means of
reconciling regulations of hate speech with
the First Amendment. The problem with this
view is obvious: the government may have
"good," pro-social reasons for disapproving
of hate speech, but it still amounts to
content-based and even viewpoint-based
regulation of government disapproved speech.
Therefore, the question is whether there is a
way to punish or limit hate speech without
violating the First Amendment.
Professor Fiss asserts that because hate
speech silences others, it can be regulated
because doing so will ultimately maximize the
amount of speech or viewpoints in the
marketplace (maybe now we should call it the
"mall") of ideas. Voil…! We liberal
libertarians have our cake and eat it too -
but only if we are right about the assumption
that hate speech really does silence the
speech of others. Does it?
Consider the response in the past months to
the speech of Rutgers University President
Francis Lawrence; Louis Farrakhan;
Representative Dick Armey; Detective Mark
Fuhrman; or the Michigan student jailed for
disseminating, via the Internet, a sexually
violent short story about a classmate. There
are innumerable examples; we need look back
no farther than this morning's newspaper to
find instances of purported "hate speech"
provoking an enormous amount of speech, not
inhibiting it.
I have no empirical data, nor do those who
advance Professor Fiss's view. The effect of
hate speech of either silencing or provoking
the speech of its targets might be an
impossible thing to quantify. Nonetheless,
my fear is that, in our enthusiasm to justify
punishment of hate speech without admitting
that we are compromising our commitment to
the liberty values of the First Amendment, we
could be laying a faulty foundation that will
ultimately cause the analytical structure to
topple. For example, even if hate speech
does, at least sometimes, inhibit others'
speech, so would many other things that I
suspect Professor Fiss would not like to see
punished: for example, an orderly rally of
the John Birch Society or Act Up, or
publication of Mein Kampf or The Bell Curve.
Conservative academics and feminists
sometimes complain that they feel silenced by
"politically correct" environments. Nor need
the content be blatantly racist or hateful in
order to inhibit people; sexist advertising,
Christmas displays, sports team logos, and
Columbus Day observances make various groups
feel marginalized and misunderstood, and
thus, according to Professor Fiss's theory,
less likely to exercise their First Amendment
rights. I doubt that many of us feel that
those expressions constitutionally can be
prohibited on that basis, much less that
would the First Amendment Speech Clause
requires it.
_
Robert Post has noted that the proposition
that racist speech inhibits its victims'
speech is in a sense self-contradictory:
Because those participating in public
disclosure will not themselves have been
silenced (almost by definition), a heavy,
frustrating burden is de facto placed on
those who would truncate public discourse in
order to save it. . . . And the more eloquent
the appeal, the less compelling the claim,
for the more accessible public discourse will
then appear to exactly the perspectives
racist speech is said to repress. . . .
Finally, to the extent hate speech does
appear to silence others, perhaps it is
actually the structure and climate of racism,
not specifically the shock of hate speech,
that is truly the inhibiting factor If I
know I am among anti-Semites, none of them
has to say or do anything for me to fell
intimidated from speaking out. If racism
itself, not racist speech, is the real
problem, the costs to liberty of restraints
on hate speech would not be offset by any
gain to minorities; as Professor Post puts
it, "restraints on racist speech would impair
public discourse without at the same time
repairing the silence of victim groups."
Thus, there may well be no balancing to be
made between liberty and equality interests.
Equality has its serious threats, to be sure,
but exercise of liberty is not necessarily
one of them.
_
_All this begs the question of the point of
the First Amendment, which leads to the
assumption underlying Professor Fiss's
argument - that the First Amendment Speech
Clause exists to encourage robuts public
debate and thus than any speech (or at least
any uncivil "hate speech") which inhibits
construction public speech by others may be
restricted consistently with the First
Amendment. However, the First Amendment
Speech Clause serves other values as well.
One of these is the speaker's liberty
interest simply in speaking, irrespective of
the value of the speech as a contribution to
public debate. Closely allied to this value
is the view of the entire First Amendment as
a sort of "emergency brake" on the power of a
majoritarian democracy, without which the
freedoms of minorities (ethnic, religious,
sexual or ideological) could easily be
stifled.
_
We live in sensitive times; there is very
little that can be said on topics such as
race, gender, and ethnicity that someone is
not willing to call "hate speech" simply
because that person is offended or disturbed
by its message, no matter how civilly
expressed. Moreover, racist ideas can be the
most dangerous when they are politely and
civilly expressed, as they tend to be by
those with meaningful political, social, and
economic power.
In ARIZONA STATE LAW JOURNAL, [Ariz. St. L.J.] Paternalism,
Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado
and Yun, Charles R. Calleros states:
"_
In particular, they understate the efficacy
of community education and counterspeech,
omitting discussion of recent examples of
successful counterspeech and of
counterproductive measures to suppress
offensive speech. Ironically, in this
respect, they turn the "paternalism" argument
on its head by advocating administrative
sanctions in place of individual _
Those who continue to focus single-mindedly
on the "top-down" solution proposed by
disciplinary codes not only raise
constitutional problems, but also ignore a
potent weapon against discrimination and
hostility: a "grassroots" movement leading
to continuous community work in the form of
education, counselling, and counterspeech.
_"
CONCLUSION
The Press Council does not ask the Tribunal to
make a prerogative declaration that section 7(1) of the
Human Rights Code violates the Charter because only a
superior court has the inherent jurisdiction to grant
such a declaration of invalidity. The Press Council
merely asks the Tribunal to apply the law and to find
that this whole proceeding, including the filing of the
complaint, the investigation, the decision to refer the
complaint for hearing, the notice of hearing dated May
5, 1997, and this hearing itself were an unjustifiable
infringement of Charter rights enjoyed by the newspaper
and its columnist.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 20th DAY OF
JUNE, 1997.
_______________________________________
Roger D. McConchie (LADNER DOWNS),
Counsel for The British Columbia Press Council
_______________________________________
Michael A. Skene (LADNER DOWNS),
Counsel for The British Columbia Press Council
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