The Nizkor Project: Remembering the Holocaust (Shoah)

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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.  Voilů!  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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