The War Of Freedom Of Expression Essay

, Research Paper

The War of Freedom of Expression

& # 8220 ; Taking on Jew-baiters and Holocaust deniers in the consecrated

courtroom environment is like reacting to person who calls your female parent

a cocotte. By supporting you raise the inquiry that possibly she truly

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was & # 8221 ;

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from Weiman and Win,

1986.

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The right to freedom of look can be described as a war. It is a

war that has lasted for centuries and may last for centuries more. It is a war

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between freedom of look and societal intolerance. In this war there are

many conflicts. The conflict on which this brief essay centres itself is the conflict

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between freedom of address and Torahs restricting that freedom ; more specifically the

ability to distribute hate propaganda and the & # 8220 ; detest Torahs & # 8221 ; . Included in the essay is

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a brief lineation of one brush that has taken topographic point ( Keegstra ) . Those who

battle on the side back uping freedom of address do so for several grounds.

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Braun

declares that it is a basic democratic right to voice your ain sentiment.

Douglas Christie has gained ill fame for his vigorous representation of high-

profile, controversial clients, charged under the hatred Torahs. He advocates

freedom of address for two chief grounds: a ) he finds it abhorrent that the province

can pass ideas and words, and B ) he frequently agrees with the positions held by

his clients. Others such as Noam Chomsky, a superb rational, argue non

for the positions expressed, but the ability to show them. Lining up on the

other side of the conflict you have: Derek Raymaker, David Kilgour, Victor Ramraj,

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and Bruce Elman. They argue that there is decidedly a moral topographic point for Torahs

sing hatred address, whether they are condemnable or non. There was late a

new development in the Canadian war for freedom of look. Introduced in

April 1982 was a new and of import strategic battlefield.

With the Charter of Rights and Freedoms the war could be won or lost by

either side. It was non long before the Charter saw conflict.

In 1984, Jim Keegstra was charged with go againsting subdivision 281 of the

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Condemnable Code of Canada ( now covered under subdivision 318-320 ) . Keegstra was a

respected school instructor and city manager of the little town of Eckville, Alberta. This

was no marginal overzealous ; this was an elected functionary charged with advancing

hatred. However by the clip Keegstra & # 8217 ; s test rolled around he was no longer the

city manager Eckville and his instruction licence, revoked. The job was, the really

nature of s. 281 Lent itself to legal argument under subdivision 2 of the comparatively

new Charter of Rights and Freedoms. The defence advocate Doug Christie lost no

clip in disputing the statute law & # 8217 ; s constitutionality. In response, Crown

prosecuting officer, Bruce Fraser, stated that Keegstra was being charged with advancing

hatred ; non showing it. The Crown besides stated that freedom of address is non

an absolute right. On November 5, 1984, Mr. Justice Quigley of the Alberta

Queen & # 8217 ; s Bench wrote an 80 page determination continuing the constitutionality of

subdivision 281. In his determination he stated & # 8220 ; It is my sentiment that s. 281.2 ( 2 )

can non be rationally considered to be an violation which limits & # 8216 ; freedom of

look & # 8217 ; but on the contrary it is a precaution which promotes it. & # 8221 ;

When the issue eventually rose to the Supreme Court of Canada, the

advocators of hatred Torahs had won a really shallow triumph. The split of the tribunal

was 4-3, go forthing uncertainness as to who had really won.

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It is excessively subjective to see the job of freedom of look as

& # 8220 ; good & # 8221 ; versus & # 8220 ; evil & # 8221 ; . The argument raises the chief issue of whether or non the

people of Canada want the authorities to be go throughing any Torahs restricting our rights

to believe and talk. While it is about consentaneous that violently moving on these

positions is illegal ; the argument on Torahs against address of any kind draws non merely

racialists, but simple progressives who believe in the freedom of address.

Braun outlines the statement against any condemnable restrictions on freedom

of address. First, he states that one of the basic premises of democracy is

that: & # 8220 ; A autonomous people that have the right and ability to make up one’s mind for

themselves whom to believe must certainly hold the right and ability to make up one’s mind what

to move on. & # 8221 ; Another point made by Braun, in the same article, is that the

right to pass against words, even narrowly defined such as words of

& # 8216 ; incitation & # 8217 ; & # 8220 ; tends to gnaw the political procedure of speaking and genuine

debate. & # 8221 ; Other such statements lift up against the legitimacy of such hate Torahs.

Douglas Christie, in Zundel, declared that the right to a minority

sentiment was at interest. In his reference to the jury he asked & # 8220 ; What are we

lobotomized imbeciles, that we can merely accept the point of view of the bulk? & # 8230 ;

Do we ne’er entrench the right to differ? & # 8221 ; Christie besides compared Zundel to

Galileo, who dared to articulate that the universe was unit of ammunition. He besides stated:

& # 8220 ; For the interest of freedom, I ask you ne’er to bury what is at interest

here. That accused bases in the topographic point of anyone who desire to talk their

head. Even if you don & # 8217 ; t agree with him, you must take it as a sacred

duty non to let the suppression of person else & # 8217 ; s honest

opinion. & # 8221 ;

Chomsky takes much the same route. Respected the universe over is non

needfully Chomsky & # 8217 ; s positions, but his ability to show them and his

apprehension of the jobs society faces. In a 1988 interview Chomsky stated

& # 8220 ; & # 8230 ; I wouldn & # 8217 ; t like the authorities to hold the power to make up one’s mind what you can

hear. & # 8221 ; With regard to a Gallic school instructor being tried for disproof of

history he said,

& # 8220 ; & # 8230 ; . Now that means that the province has the right to make up one’s mind what is

historical truth, and if it decides & # 8220 ; this is historical truth & # 8221 ; and you say

something else, you & # 8217 ; re a condemnable. In my position, that & # 8217 ; s a antic

dirt, I don & # 8217 ; t care whether what

the cat said is true, false,

indifferent ; I don & # 8217 ; t even give a darn what he said. The thought of giving

the province the right to make up one’s mind what & # 8217 ; s true, that & # 8217 ; s merely directly, flat-out

fascism. & # 8221 ;

Those who advocate the passing of & # 8220 ; detest Torahs & # 8221 ; such as subdivisions 318

through 320 of the Criminal Code, besides seem to be reasoning from a mostly

moralistic point of view. They besides province that it is highly hard for the

Crown to convict under the Torahs. True, yes it is, and that is the manner it

should be. Four advocates of these Torahs are Derek Raymaker, David Kilgour,

Victor Ramraj and Bruce Elman. They all put forth different statement, each

contention with its ain virtues.

Raymaker and Kilgour have stated that it is of import to acknowledge that

rights are ne’er absolute. They besides province that & # 8220 ; Rights are given strength

through the jurisprudence, and hence can be regulated through the jurisprudence in sensible

fortunes as prescribed in s.1 of the Charter. & # 8221 ; This is a hard stance

to take in a democratic and purportedly & # 8220 ; free & # 8221 ; society. Are rights given by the

province, or are they cardinal rights that the province must merely continue? This

is where the existent trouble lies. Peoples in western democracies recognize

ability to talk freely as an built-in right, and non as one liberally given to

us by our elected functionaries. In defence of the Kilgour and Raymaker statement,

they besides province that & # 8220 ; & # 8230 ; freedom of look can non merely be without a

system of damages for those groups who feel besieged by the hatemonger & # 8217 ; s

message. & # 8221 ; This is of import. However, it should non be handled by condemnable

jurisprudence. This issue could be addressed in civil jurisprudence and human rights statute law

without enforcing condemnable countenances on the & # 8220 ; hatemongers & # 8221 ; .

Victor Ramraj refers to both Ronald Dworkin and Lord Devlon in his paper

. Ramraj & # 8217 ; s statement can be broken down into two chief constituents ; foremost he argues

that the & # 8220 ; construct & # 8221 ; put Forth by the Charter as a whole was to advance equality

and the rights of minority and besieged groups. This is where positive and

negative autonomies enter the image. The rights of minorities non to be

condemned to listen to harmful messages and literature is a positive autonomy,

while the ability for person to orate or compose these positions is a negative

autonomy. This is a sensible statement, but is every bit limited as Kilgour & # 8217 ; s and

Raymaker & # 8217 ; s. Although people may acknowledge the predicament of minorities, that does

non intend that we must reprobate those responsible for distributing these positions to

condemnable action. Ramraj & # 8217 ; s 2nd chief statement is that there is really decidedly

a topographic point for ethical motives in the jurisprudence. This position is really clearly expressed in Lord

Devlon & # 8217 ; s & # 8220 ; Morality and the Criminal Law & # 8221 ; . This statement is hard to rebut,

after all this is itself a moral issue.

Finally, Bruce Elman represents the hardline attack to the issue of

restricting free address. In his 1994 paper, he wrote, & # 8220 ; Finally, there is of import

symbolic value in holding a jurisprudence forbiding the airing of hatred propaganda.

Our society must do a clear statement as to the values which we deem of

cardinal importance & # 8230 ; . we must be prepared to back up these values with condemnable

countenances if necessary. & # 8221 ; He besides states in the same essay that enforcing

condemnable countenance is less desirable than back uping these nucleus values through

human rights statute law or civil jurisprudence.

There are battalions of other statements for either side of the war ;

those described in this essay seem to capture more of society than do others.

As stated in the debut, the war between freedom of look and societal

intolerance may last for centuries. While the positions discussed in this essay are

non diametrically opposed, they are no where near to making a consensus.

Those who advocate & # 8220 ; detest Torahs & # 8221 ; look to be willing to negociate ; most agree that

there is no demand for condemnable countenances. Those that stand against any

ordinance of freedom of look are firm opposed to any countenances,

condemnable or otherwise.

Before I was assigned this paper, I had ne’er given much thought to this

topic. Choosing on which side to fall, is non an easy determination to do. I

hold highly high ethical motives and rules. I detest racism in all its signifiers,

and see it as one of the three eating elements blighting our society ( the

other two are drugs, and the subjectification of adult females ) . While I wish that

racialists could be shot into outer infinite, I have to side with Chomsky on this

argument. I agree that there is small topographic point for authorities intercession in

freedom of address. This is non an all across-the-board position, of class ; menaces

should be excluded, every bit good as words motivating injury. I would be willing to

concede to civil jurisprudence on the topic ; so long as it was really carefully tailored.

My ain feelings on the affair were best described by Justice McLachlin

in her dissent in Keegstra:

& # 8220 ; The vile of hatred propaganda is beyond uncertainty & # 8230 ; The danger here is non

so much that the statute law will discourage those dead set on advancing hatred & # 8230 ;

The danger is instead that the statute law may hold a cooling consequence

on legitimate activities of import to our society by subjecting inexperienced person

individuals to restraints born out of fright for the condemnable process. & # 8221 ;

The split in that tribunal determination has played an of import factor in the

continuance of the argument. Any given composing of the tribunal may turn out a

different determination. It will be interesting to see if the Supreme Court hears

the issue once more sometime in the close hereafter. In my position, make up one’s minding the issue of

freedom of address does non needfully affair, so long as we are debating it.

If we are debating it that means that society recognizes the possible jobs.

Equally long as society recognizes the possible jobs we will ne’er be capable to

the same conditions that led to the holocaust in World War Two Germany.

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