The Nizkor Project: Remembering the Holocaust (Shoah)

The Role of the Public Institution in Promoting Equality and Tolerance

by Robert M. Goldschmidt
on behalf of the Jewish Federation of Victoria and Vancouver Island <1>


Introduction

The conflict between equality and freedom of speech was once again brought to the surface in Victoria, British Columbia on June 19, 1998, when the Greater Victoria Library Board (the "GVLB") rented one of its meeting rooms at the Juan de Fuca branch of the library to the so-called "Canadian Free Speech League" ("CFSL"). <2> A previous meeting of the CFSL was attended by Heinz Koppe, former head of the British Columbia branch of the Ku Klux Klan; Tony McAlear, found to have twice breached Canadian hate crime laws through telephone "hate lines"; Eileen Pressler, head of the anti-Semitic "Council of Public Affairs" and; Paul Fromm, former Ontario school teacher fired for associating with racists. Other CFSL meetings have honoured the likes of British Holocaust denier David Irving, who was arrested at a CFSL meeting and deported; Lady Jane Birdwood, convicted of breaching British hate crimes laws; and other Holocaust deniers and white supremacists.

The GVLB allowed this meeting to take place over the strong objections of numerous community members and groups. Approximately 400 people attended a rally outside the Juan de Fuca Public Library prior to the meeting, protesting the GVLB's meeting room policy. In addition the GVLB received many letters of protest. The Jewish Federation of Victoria and Vancouver Island formally requested the GVLB to adopt a policy that would prohibit the rental of its meeting rooms to organizations which espouse views that are likely to promote discrimination, contempt or hatred against groups identifiable by race, national or ethnic origin, colour, religion, age, sex, marital status, family status, sexual orientation or disability. (This will be referred to throughout the paper as a "protolerance policy".)

The refusal of the GVLB to adopt a pro-tolerance policy is:

This paper will focus on the action of the GVLB, but pertains to all public institutions.

A moral and ethical failure

The failure of the GVLB to adopt a pro-tolerance policy is a moral and ethical failure because it ignores the tremendous harm to society caused by bigotry. Since all of the legal and policy reasons for public institutions adopting pro-tolerance policies are based on the harm caused by the spread of hate propaganda, we must first examine what that harm is. To say that the damage done by hate speech is that it offends our taste, trivializes the issue.

The Holocaust and numerous other examples of the dangers of unchecked bigotry should be enough to convince any public institution to adopt such a policy. All Holocaust survivors are acutely aware of the dangers of allowing the proliferation of hate propaganda. Most survivors lost their parents, brothers, sisters, aunts, uncles, cousins, and fhends to Nazi murder. They also endured the torture of concentration camps. This rampage of suffering and death was brought about on the basis of an ideology-- an ideology of bigotry-- an ideology that gained legitimacy and acceptance in a modernized, cultured country, through public speech.

The facturn submitted by the New Brunswick Human Rights Commission in the case of Ross v. New Bninswick School District No. 15 et al.<3> states:

After Auschwitz, it is simply not feasible to consider the constitutional values of freedom of expression and freedom of religion where these are proclaimed to shield anti-Semitic conduct, without contemplating the centrality of that ideology to the scourge of death and destruction which swept across Europe during the era of the Third Reich.<4>

Now deceased Holocaust survivor Primo Levi described the early period of his deportation to Auschwitz as follows:

Thus, in an instant, our women, our parents, our children disappeared. We saw them for a short while as an obscure mass at the other end of the platform; then we saw nothing more.<5>

***

... for the first time we became aware that our language lacks words to express this offence, the demolition of a man. In a moment, with almost prophetic intuition, the reality was revealed to us: we had reached the bottom. It is not possible to sink lower that this; no human condition is more miserable than this, nor could it conceivably be so. Nothing belongs to us any more; they have taken away our clothes, our shoes even our hair; if we speak, they will not listen to us, and if they listen, they will not understand. They will even take away our name: and if we want to keep it, we will have to find ourselves the strength to do [so], to manage somehow so that behind the name something of us, of us as we were, still remains.

***

It is in this way that one can understand the double sense of the term 'extermination camp', and it is now clear what we seek to express with the phrase: 'to lie on the bottom'.<6>

When reading the above, we must keep in mind that this massive display of inhumanity could not have been achieved without the spread of hate propaganda. Primo Levi and many other survivors have begged the world to at least learn the lessons of unchecked bigotry. He stated:

Many people - many nations- can find themselves holding, more or less wittingly, that Oevery stranger is an enemy'. For the most part this conviction lies deep down like some latent infection, it betrays itself only in random, disconnected acts, and does not lie at the base of a system of reason. But when this does come about, when the unspoken dogma becomes the major premise in a syllogism, then, at the end of the chain, there is the Lager [death camp]. Here is the product of a conception of the world carried rigorously to its logical conclusion; so long as the conception subsists, the conclusion remains to threaten us. The story of the death camps should <7> be understood by everyone as a sinister alarm-signal.

The GVLB fails to understand the alarm signal glaringly broadcast by the death camps. Have we all failed to learn the lessons of the Holocaust? What about "ethnic cleansing" in Bosnia, Apartheid in South Affica, slavery in the United States, ethnic struggles in Affica, worldwide violence against women, violence against homosexuals, the murder of a Sikh man in Vancouver by white supremacists and other hate motivated crimes, the treatment of aboriginals in Canadian Residential Schools, the treatment of the Japanese during World War R, the treatment of the Chinese in British Columbia at the turn of the century, sexual harassment, and countless other examples of what transformations can occur if bigotry and fear of strangers are allowed to spread and gain legitimacy.

Unfortunately, an ideology of White supremacy has long been considered within the bounds of respectable, defensible opinion in Canada. In the colonial era, Aboriginal peoples were portrayed by church and state as "heathens" and "savages" and somehow less than human. These images provided justification for the extermination, segregation and subjugation of Aboriginal peoples.

In addition to bigotry ultimately leading to violence, allowing the spread of bigotry inflicts harm on the individuals being attacked. There is psychological damage to self esteem of the targets of hatred. As Justice Dickson stated in the case of R. v. Keegslra<9> persons that are the subject of a bigotry based attack will be humiliated and degraded, possibly impacting on the person's self worth.

On the contrary, the advantages of promotion of tolerance and equality in society include the fostering of creativity, the preservation of the dignity of human beings, the full participation of everyone in society and the entrepreneurial advantages of a diverse work force.<10>

A denial of the Charter's equality rights

The GVLBs refusal to adopt a pro-tolerance policy amounts to a denial of the equality rights of members of the communities served by the GVLB. The Canadian Charter of Rights and Freedoms, Section 15, guarantees equality for all, and specifies that "in particular", individuals shall not be discriminated against on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Section 27 of the Charter compels the Charter to be interpreted consistent with the preservation and enhancement of the multicultural heritage of Canadians.

A fundamental aspect of inequality and discrimination is the spread of bigotry through speech. Hate propaganda is group libel. As long as we permit racial, ethnic and other such groups to be defamed at will, we will never have equality. University of Michigan Law Professor Catherine MacKinnon points out the direct connection between inequality and hate speech. She argues that:

... group libel, most of it concededly expression, promotes the disadvantage of unequal groups; that group based enmity, ill will, intolerance and prejudice are the attitudinal engines of the exclusion, denigration, and subordination that make up and propel social inequality; that without bigotry, social systems of enforced separation, gcttoization, and apartheid would be unnecessary, impossible and unthinkable; that stereotyping and stigmatization of historically disadvantaged groups through group hate propaganda shape their social image and reputation, which control their access to opportunities more powerfully than their individual abilities ever do; and that it IS impossible for an individual to receive equality of opportunity when surrounded by an atmosphere of group hate.<11>

... group defamation in this sense is not a mere expression of opinion but a practice of discrimination in verbal form, a link in systemic discrimination that keeps target groups in subordinated positions through the promotion of terror, intolerance, degradation, segregation, exclusion, vilification, violence and genocide. ... an equality approach to such speech would observe that to be liquidated because of the group you belong to is the ultimate inequality.<12>

In the Ross case the Supreme Court of Canada quoted R. v. Edwards Books and Art Ltd<13> which warned that the courts need to be cautious that the Charter does not become an instrument whereby persons seek to "roll back" legislation designed to promote equality. This warning should be well taken. Hate groups attempt to use the Charter to justify the destruction of equality rights, also guaranteed by the Charter.

Not only do hate groups attempt to use the Charter to defeat equality rights of minorities, they now use libel laws to prevent their own criticism. The law of libel taken together with the difficulties of preventing hate speech allows hate groups to commit group defamation at will, and then use the threat of a libel suit to stifle the speech of members of the subordinated group. We have seen this occur recently in many new libel suits, such as the one brought by the CFSL against M.L.A. Moe Sihota.

It seems that injury to the reputation of individuals is seen as real and present, while injury to the reputation of groups is ignored. As Professor MacKinnon states,

Reputational harm to those who are allowed to be individuals -- mostly white men -- is legal harm. Those who are defined by, and most often falsely maligned through their membership in groups -- namely almost everyone else -- have no legal claim. Indeed, those who harm them have something of a speech right to do that harm. This arrangement avoids the rather obvious reality that groups are made up of individuals.<14>

Former U.S. Supreme Court Justice Frankfurter stated, "A man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. <15>

The GVLB's refusal to adopt a pro-tolerance policy aids therefore in the unfettered ability of hate groups to defame the targets of their choice. This lack of policy initiative directly results in the failure of minority and other groups living in the communities served by the library to achieve the equality rights guaranteed by the Charter.

An Act of Discrimination under the B.C. Human Rights Act

The B.C. Human Rights Code, Section 8, prohibits discrimination against persons, regarding facilities customarily available to the public, because of race, colour ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, or sexual orientation. Consider this scenario: The British Columbia branch of the Ku Klux Klan wants to hold a strategy meeting in the public library, promising that they will not commit any crime in their meeting. They will not even discuss their views of hate, but will only work on a strategy for getting their message to the public--perhaps an internet provider will speak at the meeting to further this goal. Does not the library's allowance of this group to use this public facility amount to discrimination against a black person's right under the Human Rights Code to use public services in an environment free of discrimination and harassment?

This is the poisoned environment set out in the Ross case. The New Brunswick Human Rights Code also requires institutions that provide services customarily available to the public to do so in a manner which does not discriminate on the basis of race, etc. In Ross, a teacher in the New Brunswick school system published anti-Semitic writings outside of class over an extended period. Supreme Court Justice La Forest, writing for the court, stated:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it deffies the values that transcend society through the educational medium The school is an arena for the exchange of ideas and must therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally fl= to participate. As the board of inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it.<16>

The court agreed that it was not sufficient for a school board to take a passive role and found that the employment of the bigoted teacher created a poisoned environment characterized by a lack of equality and tolerance. The school board's inaction constituted a violation of the New Brunswick Human Rights code.

While it is true that the court in part relied upon the influence a teacher can exert over students, the court also upheld a very significant intrusion on the rights of an individual to pursue the livelihood of his choice. In the public library or other public institution setting, there is not the teacherlstudent relationship, but there are the same principles of a library being a "communication centre for a whole range of values and aspirations of a society" and of a library being an "arena for the exchange of ideas." Libraries are also central to the education of children. Further, the intrusion to the organization, caused by not allowing them to use a meeting room is far less that not allowing someone to pursue his chosen career.

The net effect of allowing the use of public space by an organization which has an agenda to promote hatred against identifiable groups is quite similar to allowing the direct promotion of hate propaganda. The granting of the meeting space gives the appearance of public acceptance and legitimacy of the group. It aids the furtherance of the goals of the organization. Allowing a hate group to use public space does the same psychological harm to members of target groups, as it shows the apparent acceptability of the group's views as discourse.

The impact on the free speech rights of the group in denying access to the public facility and the impact on the rights of the public to free access to information would be minor. The meetings could easily be held at a private, non-publicly funded location. The meetings are typically by invitation only and therefore offer no free access to information. Also, the granting of meeting space in a public library is far removed from the main functions of a library. Libraries are not convention centres. Granting meeting space is not part of the GVL13's Mission Statement. Their ability to rent space is purely a tangential aspect of their operations. Given the above, when one weighs the degree of infringement on the speech or assembly rights of the hate group against the harm caused to the surrounding community, it is clear that disallowing the group to use the space is the proper choice.

A rejection of national and international policy

In addition to the historical and current harm caused by the spread of bigotry, the Charter's equality guarantee, and the Human Rights Code, the need for a pro-tolerance policy is also compelled by provincial, national, and international laws and policies. Provincially, the British Columbia Multicultural Act, Sections 3 (e) (f) and (g) state that it is the policy of the government of British Columbia to "reaffirm that violence, hatred and discrimination on the basis of race, cultural heritage, religion, ethnicity, ancestry or place of origin have no place in the society of British Columbia" and to "work towards building a society in British Columbia free from all forms of racism..." and to "recognize the inherent right of each British Columbian, regardless of race, cultural heritage, religion, ethnicity, ancestry or place of origin, to be treated with dignity."

Nationally, the Criminal Code of Canada, section 319(2) states that 'Wery one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence..." An identifiable group means "any section of the public distinguished by colour, race, religion or ethnic origin." This sets a standard which should be followed by public institutions. The GVILB, however, instead of using this as a foundation for a pro-tolerance policy, uses it as a means of avoiding a policy. Undoubtable, if there was no Criminal Code provision outlawing hate propaganda, the GVLB would claim that such conduct is not illegal, so why should they take action. (This issue is discussed in more detail below.)

Internationally, the United Nations Fourth Statement of Race (Paris, 1967) speaks to this issue:

17. ... National legislation is a means of effectively outlawing racist propaganda and acts based upon racial discrimination. Moreover, the policy expressed in such legislation must bind not only the courts and iudges charged with its enforcement but also all agencies of government of whatever level or whatever character. (Emphasis added).

It is not claimed that legislation can immediately eliminate prejudice. Nevertheless, by being a means of protecting the victims of acts based upon prejudice, and by setting a moral exampi backed by the dignity of the courts, it can, in the long run, even change attitudes. (Emphasis added).

Furthermore, Canada is a party to the International Convention on the Elimination of all Forms of Racial Discrimination, which states in Article 4:

State Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof,

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. (Emphasis added).

A rejection of the stance taken by all five political parties of Canada

The Supreme Court of Canada in the case of Canada v. Taylor<17> found that the commitment of Canada to the international conventions to eradicate discrimination includes the prohibition of the dissemination of hate propaganda. Therefore, based upon the above laws and policies, there is an overwhelming legal mandate for all public institutions to adopt a policy to discourage racial and other forms of discrimination.

A rejection of Municipal law and policy

An example of the appropriate stand of a public institution with respect to tolerance values was the refusal by the House of Commons to grant Holocaust denier Ernst Zundel access to a news conference room on Parliament Hill. All five federal parties supported the denial. This action sent a powerful and important message to Canadians that the public promotion of bigotry is not acceptable in this country. This action was taken by our legislators, which should set the example for other public institutions. Contrary to the leaders of our nation, the GVLB would have granted Zundel access to their meeting rooms.

The board of the Public Library system in Ottawa recently denied Paul Fromm the right to use a library meeting room, tabling further discussion of the matter. This is in fine with a 1992 regulation adopted by the Regional Municipality of Ottawa-Carleton, designed to prohibit any group which espouses views likely to promote "discrimination, contempt or hatred" to any person on the basis of race, etc., from using public facilities. The City of Victoria adopted a similar resolution in 1996, but the GVLB rejected the City's resolution, stating that it was free to operate library facilities as it wished.

An aid to the spread of bigotry.

If we, as a society, are to be successful at promoting tolerance and equality, the public institution must take the lead and set an example. Public institutions, such as public libraries, universities, schools, and community centres, are focal points of community life and values. Public institutions maintain positions of respect and authority and as such, the actions and policies of a public institution have a significant and direct impact on the surrounding community and in part establish the norms of behaviour in a given community.

We cannot effectively combat bigotry by legislation alone. All of the anti-racist laws and policies of our country and the world will not significantly impact the spread of bigotry, without the support of our public institutions. There must be official, authoritative promotion of equality for people of all races, gender, religion, etc. if we are ever to achieve the Charter's guarantee of equality.

The role of the public institution in promoting tolerance is comparable to the role of management to set corporate standards of behaviour. Corporations have learned that they must make clear policy statements that words or acts of prejudice will not be tolerated. For example, it took a major lawsuit to bring down rampant racism at the U.S. Denny's Restaurant chain. Racism spread because there was no clear message from upper level management condemning such conduct. Commenting on the Denny's case, psychologist, author, and former senior editor of Psychology Today, Dr. Daniel Goleman, stated:

... everything we know about the roots of prejudice and how to fight it effectively suggests that precisely this attitude-- turning a blind eye to acts of bias- allows discrimination to thrive. To do nothing, in this context, is an act of consequence in itself, letting the virus of prejudice spread unopposed. ... As an IBM executive put it, 'we don't tolerate slights or insults in any way; respect for the individual is central to IBM's culture.'

***

In this endeavour, those in positions of authority play a pivotal role: their failure to condemn acts of bias sends the tacit message that such acts are okay.<18>

Dr. Goleman goes on to say that the more effective diversity training courses set explicit ground rules that prohibit bias in any form.

In short, it is more practical to try to suppress the expression of bias rather than trying to eliminate the attitude itself, stereotypes change very slowly, if at all.

***

For the plethora of diversity training programs that are sweeping thought the corporate world, this means a realistic goal is to change the norms of a group for showing prejudice or harassing; such programs can do much to raise into the collective awareness the idea that bigotry or harassment are not acceptable and will not be tolerated.<19>

President John F. Kennedy, spoke to the people of the United States in the summer of 1963, when the National Guard had to be brought in to enforce an order of the United States Supreme Court allowing the admission of two Black students to the University of Alabama. President Kennedy stated, "But legislation, I repeat, cannot solve this problem alone. It must be solved in the homes of every American in every community across our country... Those who do nothing are inviting shame as well as violence."

Organizations who espouse views which promote discrimination or hatred based on race, etc. ("hate groups") desire to meet in public institutions, such as a public library, in order to give them the semblance of respectability. This air of legitimacy is probably one of the most dangerous aspects of allowing hate groups to meet or speak in such places. While the GVLB says it is opposed to the viewpoints espoused by hate groups, the action of allowing a hate group to use the library facilities for the purpose of furthering the agenda of the hate group, speaks louder than the attempt to distance themselves from the group. As Dr. Goleman states, it is the turning of a blind eye which allows discrimination to thrive. It is the perception of legitimacy which increases the chances of the spread of bigotry.

The GVLB has no policy which prohibits the use of meeting rooms to groups who actively promote hatred against any group identifiable by colour, religion, race, etc. Such a policy must be established by every public institution in this country. It is just as necessary in the public institution setting as it is in the corporate setting. The library points out that its primary function is not combatting racism but promoting the free expression of ideas. Promoting tolerance, however, is the function of every public institution. In the corporate setting, promoting tolerance is not the function of IBM. Nevertheless, MM and other corporations must have policies which prohibit bigotry and harassment.

Social anthropologist, Frances Henry states:

The first task of an institution committed to racial equity is to make a clear statement that racism in any form will not be tolerated. Unfortunately, most major Canadian institutions operate as if the realities of a racially diverse population have nothing to do with the way they carry out their activities.<20>

An abdication of the duty to the community

Public institutions are concerned that it would be too burdensome to judge whether or not a group promotes hatred. First of all, there is no indication that any single agency such as the GVLB, would need to make these decisions very often. In Victoria, the GVLB has only received complaints of the use of its meeting rooms by hate groups on two occasions and both occasions concerned the CFSL.

Public institutions need to set up a clear policy and a system for handling such complaints in the same way that complaints of sexual or other harassment are handled. Complaints about groups promoting hatred would have to be reviewed on a case by case basis to determine whether or not the organization does promote hatred against identifiable ethnic and other groups.

While there may be borderline cases, this does not mean that the best answer is to ignore the problem. The Supreme Court of Canada realized that just because pornography is difficult to define with any precision is not a reason to avoid the issue. As Justice Sopinka stated in R v. Butler<21>, "Standards which escape precise technical definition, such as 'undue', are an inevitable part of the law." If a board of a public institution could not, after reviewing the evidence, determine whether or not the group in question promotes hatred, then they would simply rule in favour of the group. The board has a responsibility to the communities they serve to make these difficult decisions.

There are many types of complaints that involve difficult line drawing. These include sexual and other harassment, discrimination, wrongful termination of employment, and other examples. There was once a time when one's co-worker could put up a sexist calendar or make racist or sexist jokes with no repercussions. Can you imagine if the response to a harassment complaint was, "We are sorry, but it is too difficult to define 'sexist' or 'racist'. We do not approve of improper conduct, but who are we to make these kinds of rulingsT' If the public institution has an express policy of not granting meeting or speaking space to hate groups, perhaps hate groups will not apply to rent the facilities.

The failure of the "criminal code" policy

The only restriction contained in the GVLB's meeting room policy is as follows:

The Library will not knowingly permit any individual or groups to use its facilities in contravention of the Criminal Code of Canada.

This "Policy" falls far short of a direct policy against the spread of racism. The GVLB is apparently content with allowing any organization to use its facilities in contravention of all of the civil laws of municipalities, the province and the nation, such as the B.C. Human Rights Code.

The existing "policy" is totally unworkable and meaningless. Would the person or group using the facilities have to have been previously convicted of a crime or would the GVLB make some determination that the activity violated the Criminal Code? If a prior conviction is necessary, than someone with no criminal record, exposing themselves in the Library, would be permitted to do so. If the GVLB is going to make a determination that the activity is in "contravention of the criminal code", then they must specifically rule on whether the complained of group, during the meeting, communicates statements, which wilfully promotes hatred against any racial or other identifiable group in violation of section 319(2) of the criminal code. To do so, the GVLB would have to attend every meeting.

As discussed above in the KKK example, such a policy would allow convicted hate mongers, rapists, paedophiles, child pornographers, etc., access to the public library meeting rooms, to actively support and promote these "causes", as long as the activity during the meeting was not, in the opinion of the GVLB, "contrary to the Criminal Code of Canada". If a group of child pornographers for example, called the "Canadian Free Sexuality League", held the view that children are sexual beings and need to be free to participate in the expression of sexuality with the help of adults, this group would be allowed to meet in the public library, in order to discuss how they can change child pornography laws and how they can get their views across to the public.

Another problem with this Criminal Code "policy" is that the GVLB cannot really make determinations that a group is "in contravention of the Criminal Code of Canada". That determination can only be made by a judge or jury. The GVLB could only make an allegation that the criminal code is being violated and could only make such an allegation to the police. At that point, the complaint may or may not be followed up by the Crown to pursue the matter, whereupon the defendant would be presumed innocent until proven at a trial to have violated the Criminal Code beyond a reasonable doubt. Such is a long and costly procedure. The allegation of criminal conduct and a complaint to the police would be far more intrusive on an organization then simply disallowing the group to use library facilites for failure to meet the policy requirements of the GVLB.

Could you imagine a sexual harassment policy that only said, "We will not knowingly allow someone to act in a manner in contravention of the Criminal Code of Canada"?

A blind, poorly reasoned allegiance to the value of freedom of expression, which fails to take heed of the rulings of the Supreme Court of Canada.

At the meeting of the GVLB, in which a discussion was held and a vote was taken on whether or not the GVLB should change its meeting room policy, one member of the GVLB stated that if hate groups are denied access to library meeting rooms, perhaps environmental groups would object to meetings of loggers. Another GVLB member stated that this a battle between two protagonists and the GVLB should not get into the middle. Another stated that the GVLB does not want to become "an arbiter of taste". This demonstrates the total lack of understanding of this public institution on the depth of the underlying basis for a policy to fight bigotry and on the limits of freedom of expression.

There are certain crimes and wrongs that are exclusively or predominately conveyed through expression. Examples include, child pornography, defamation, price fixing, and bribery. The fact that these crimes involve the expression of ideas does not remove them from their illegality. The same is true of hate speech. Professor MacKinnon points out that the signs, "White only" and "Jews not wanted here" are only words. Cross burning is a pure act of expression; no one cries for the burnt grass. Yet given the history of the Ku Klux Klan, cross burning is clearly recognized as an act of terrorism and intimidation. Words and expression are the means by which violence against minority groups are normalized. "Those who challenge racist attitudes, policies, or practices are often accused of "censorship" and their concerns are dismissed as examples of "political correctness"<22> This is not a plea for censorship anymore than defamation laws are about censorship.

Canadians sometimes forget that the Canadian Charter of Rights and Freedoms is not a carbon copy of the American Bill of Rights. Unlike the American Constitution, the Canadian Charter of Rights and Freedoms warns right at the beginning in section one, that the rights granted in the Charter are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In the Oakes<23> case, the Supreme Court of Canada stated that when determining whether Charter fights can be limited under Section 1, the courts must be guided by the values and principles essential to a free and democratic society. The court stated that these values include:

... respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.<24>

The Supreme Court of Canada in the Ross<25> case, citing the RJR-MacDonald<26>case, noted that the core values underlying freedom of expression include "the search for political, artistic and scientific truth, the protection of individual autonomy and self -development, and the promotion of public participation in the democratic process."

In the Keegstra case, Justice Dickson stated that the dissemination of hate speech is only tenuously connected with the core values underlying the guarantee of freedom of speech. He stated that expression which promotes hatred against identifiable groups is of limited importance when measured against free expression. In fact, he noted that this type of expression works to undermine democratic values.

I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s.2(b) rationale.<27>

The Supreme Court in Ross concluded that expression of hate "silences the view of those in the target group and thereby hinders the free exchange of ideas feeding our search for political truth. "<28> The rulings of the Supreme Court of Canada therefore clearly hold that the prohibition of hate speech is a reasonable limit, which is demonstrably justified in our free and democratic society. We are justified in restricting the full exercise of the freedom of expression in the hate speech context because the harm caused by expressions of hate propaganda seriously offends the values fitndamental to our society.<29>

Despite the clear rulings of the Supreme Court, many people still get quite fearful at any hint of a restriction on free expression. This may be in part due to the history of free speech issues. Much of the North American experience in free speech cases is derived from attempts to restrict the political speech of communists in the McCarthy era.<30> We learned of the harm brought upon careers and families, from the paranoid stifling of political dissent.<31>

The risk is that marginal, powerless, and relatively voiceless dissenters with ideas we will never hear, will be crushed by governmental power. This has become the 'speech you hate' test: the more you disagree with content, the more important it becomes to protect it. You can tell you are being principled by the degree to which you abhor what you allow. ... If some speech is conceded to be risky, more speech to the contrary will eliminate that risk. Most of all, Government can make no judgment as to content....

***

This approach is adhered to with a fundamentalist zeal even when it serves to protect lies, silence dissent, destroy careers, intrude on associations and retard change<32>

This concern of the power of the government being used to crush the dissent of the powerless does not apply in the hate speech context. Hate groups use the power of the government to defame and subordinate minority and other historically disadvantaged groups. As stated above, they try to use the Charter to "roll bacV equality laws and then use libel laws to prevent their own criticism. When hate propaganda laws are properly looked at as equality laws, the invocation of a free speech tradition designed to keep government offthe backs of dissenters is totally inappropriate.<33> There is no requirement that the state remain neutral on issues of equality and inequality because equality is a substantial and pressing concern and a compelling state interest.

Public exposure and open debate

Some people suggest that we are better off having such groups "out in the open", exposed to public criticism, rather than operating clandestinely underground. Hate groups choose to get out into the public, because they need public participation and support to thrive. Ultimately, they seek public acceptance. When bigotry becomes attached to governmental legitimacy it is empowered. Public, and eventually governmental acceptance of the views of bigotry, were the foundation of the Holocaust and other attempts at genocide or slavery.

The idea that open debate is the answer to hate speech, has no historical or empirical evidence. The reverse, in fact, is true. Studies have shown that when people in a group hear someone making ethnic slurs, it leads others to do the same.<34> Germany learned the lesson that a society cannot count on open public debate to expose the lies of racism. Germany no longer tolerates hate speech.

Hate speech is not about political and social debate. Prejudice is a psychological phenomenon of human beings, it is not a value or intellectual theory.<35> Bigotry is about a psychological need to belong to a powerful group, to feel superior to others, and to find someone to blame for problems.

Prolonged hatred is a psychological problem which develops as a result of the weakness of one's ego, or the failure to achieve a sense of identity. Hatred is a form of immaturity, whereby the racist maintains his own sense of the "purity" of his or her identity, by splitting off members of his group from members of the group he hates. This is done at the expense of the hated group.<36> The racist's strength comes from the depletion of others. There is a healthy form of hate, which is a vehement emotion elicited from a realistic impetus. This type of hate is similar to acute anger and should easily dissipate with time.<37>

Racism is therefore conveyed and spread through speech in a psychological way, more so than ordinary speech conveys intellectual ideas. Hate speech, brought out into the open, spreads like a disease because it feeds these human needs. The population of Germany was not persuaded to become mass murderers by some intellectual, logical, political idea. The Holocaust does not comment on the failure of the intellect of the Human species; it is, however, a testament to the psychological weakness of human beings, which under the right conditions leads to total disregard for life.

Furthermore, once the hate speech is allowed to be hurled at the public, the damage is done. We would never say that the appropriate remedy for libel is open debate. If someone is falsely and publicly accused of being a paedophile, do we just instruct that person to take it and go out in public to make counter arguments to prove that he really is not a paedophile?

The slippery slope argument

In the United States, the National Rifle Association (the "NRA") opposes the ban of semiautomatic assault rifles. The NRA believes that the Second Amendment to the U.S. Constitution gives them the right to bear arms. If the right to bear arms is compromised by the ban of assault rifles, they argue, the door will open to the possible prohibition of other weapons, such as hand guns. The argument would work equally well for grenades and bazookas. This is the argument of indivisibility and blind allegiance to a concept. This is the argument espoused by some free speech advocates.

Although Canadians hold different attitudes about gun-control, the fallacy of the argument in the American gun control context is exactly the same as the fallacy in the hate speech context. Hate speech is the assault rifle of language. We do not apply our laws as abstractions. We must be cognizant of the context and purpose behind a law. Assuming the Second Amendment to the U.S. Constitution gives Americans the right to bear arms, the drafters of the U.S. Constitution could never have intended the amendment to be used by organization or individuals to stockpile weapons of mass destruction.

Conclusion

Canadian and world history are filled with examples of cruelty and discrimination inflicted upon people because of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, sexual orientation and disability. The most glaring example of our time is the Holocaust. Civilized nations have attempted to reconcile this inhumanity through constitutional guarantees, human rights codes, criminal codes, and international agreements. Nevertheless, perhaps due to the psychological seductiveness of feeling superior to others, the battle to eradicate bigotry continues.

A major stumbling block in this battle is the disastrous attitude that freedom of expression includes the freedom to commit group libel and to promote the ideas that formed the backbone of the world's examples of bigotry based crimes. When our public institutions, such as the GVLB, open their doors to hate groups to use publicly funded facilities for the pursuit of their agenda of bigotry, they too promote bigotry. It is not the hate group that presents the biggest threat- it is the public institution. The hate group can be dismissed as a wacky fringe element; the Public Library cannot.

If we are to have any chance of winning the battle against bigotry, all of our public institutions must adopt policies which send a clear message that racism and other forms of bigotry are not debatable areas of discourse. Public institutions must adopt policies which promote equality and tolerance of all people of Canada.


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© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.