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February 24, 2006
Free Speech or Hate Speech?
By Faisal Kutty
“I don’t know of anything more important than freedom of expression,” said former Supreme Court Justice Peter Cory commenting on the Court’s decision to uphold Jim Keegstra’s conviction for willfully promoting hatred in 1991.
The offensive Danish cartoons of the Prophet Muhammad have now ignited global interest in the subject. To date four Canadian media outlets have entered the fray.
Despite death and destruction, some free speech advocates have characterized this as a defining battle. It has now become a clash of extremes with both sides reeking of double standards. Muslim extremists, some of whom regularly insult others, and dictatorships are trying to claim the moral high ground by defending the sacred in clearly non-sacred ways. An equally hypocritical extreme in the West is pretending as if there are no limits and as if subjective restraint is not exercised daily.
Many of the nations where these cartoons have been published have laws against anti-Semitism and rightly so (for an excellent summary of the situation in Europe see Professor Ruti Teitel’s article http://writ.news.findlaw.com/commentary/20060215_teitel.html). In fact, about two weeks ago Italian prosecutors even announced charges against eleven individuals who displayed Nazi symbols during a football game. Meanwhile, media in Italy have reproduced the cartoons with impunity.
Indeed, even in Denmark there are limits. The offending newspaper, Jyllands-Posten, refused to publish caricatures of Jesus in 2003 because they would “offend.” Moreover, section 140 of the Danish Penal Code prohibits blasphemy while section 266b prohibits expressions that threaten, deride or degrade others on various grounds. Of course even limits and laws are viewed through political, social and philosophical lens and so the public prosecutor determined that these cartoons did not violate any laws.
Freedom of expression is alive and well in Canada, but cannot be used as a carte blanche. We have restrictions. We have libel laws and censorship of various forms in keeping with “community standards.” Moreover, criminal and human rights legislation also restrict free speech in the interest of protecting minorities and maintaining harmony.
Section 319 of the Criminal Code proscribes statements that incite or promote hate. Convictions have been few and far between because of the specific intent required, but it has withstood constitutional challenges.
Subsection 319(1) makes it an offence to incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.” To be convicted an accused must have communicated statements in a public place and ought to have known that the incitement was likely to have brought about a breach of the peace.
The SCC has held that the mens rea required is less than the intentional promotion of hatred, but the immediacy of the breach of the peace would make it extremely difficult to convict unless the cartoons were being provocatively displayed in a mosque or Muslim gathering.
The second and more relevant offence is set out in subsection 319(2) which makes it an offence to “communicate statements, other than in private conversation, that willfully promotes hatred against an identifiable group...” The mens rea will flow from the establishment of the elements of the criminal act. The trier of fact must not only consider the statement (broadly defined) objectively, but also with regard to the circumstances, the manner and tone used and the persons to whom the message was addressed. The SCC held in R. v. Keegstra that willful blindness (“knew or strongly suspected”) as to the consequences is sufficient to satisfy the mens rea requirement.
Though it can be argued that the cartoons in and of themselves may not be caught under subsection 319(2), I believe that there are strong grounds to lay a charge against those who republish them now. I base this viewpoint on at least five reasons, the first being that the news value has diminished given that anyone wishing to understand the controversy and see the cartoons can do so without having them republished. Secondly, at least two of the cartoons, especially the one showing the prophet with the bomb and the one calling for an end to suicide bombings because of a shortage of virgins, suggest that Muslims are necessarily and inherently evil (this is a reasonable interpretation), because a Muslim by definition tries to emulate the prophet. The issue for most is not whether the prophet should be pictured. It is his portrayal, essentially, as a poster boy for al-Qaeda and by extension, Muslims in general as violent and therefore worthy of hate. Thirdly, given the fact that Muslims — both observant and non-observant — have made it very clear that these are offensive and violate their dignity as a community (granted this is an alien notion in our individualistic society), republishing them is therefore intentionally provocative and can promote hatred. Fourthly, it can be reasonably argued that the intent behind their publication in the current climate will serve no real free speech purpose and may in fact expose Muslims to hate.
Lastly, I believe that the full context of its initial publication can shed some light on the intent behind its continued publication. They were published against a backdrop of ever increasing levels of Islamophobia and racism, where even the Queen of the land had called for the demonization of Muslims.
The following quote from the South African newspaper the Mail & Guardian is illustrative:
“Further, they were published in Denmark, which has been named by the European Union Commission on Human Rights as the most racist country in Europe. It has witnessed a large number of attacks against Muslims, some resulting in the killings of Muslim immigrants. And, they were published by a newspaper with historical ties to German and Italian fascism and which called for a fascist dictatorship in Denmark. Jyllands-Posten is also anti-immigrant and anti-Muslim. Within such a context, these cartoons are clearly hate speech. Their publication is an ontological attack against the foundations of Islam.”
Indeed, some commentators have argued that given the foregoing, the aim of the cartoons was nothing short of inciting hatred against “the terrorist within”.
However, conviction under ss. 319(2) would be extremely difficult given the evidentiary burden and indeed even initiating the prosecution requires the consent of the attorney general – a Herculean task for communities that often lack political clout. Moreover, the accused has a number of defenses available under ss. 319(3) which dilute the provisions effectiveness, but minimizes abuse.
Though not specifically designed to regulate speech it may be easier to pursue a hate-monger using the lower civil standard of proof required under human rights legislation. Such legislation is concerned with the broader effect of hate and not just the intended effect. Legislation in both British Columbia and Alberta have been successfully used to curb hateful speech. The SCC has not yet ruled on whether this would be ultra vires by infringing on federal jurisdiction over criminal law.
Muslims in Canada have acted responsibly. Editors must reciprocate and exercise their rights tempered by civic responsibility. The community will be looking to the various Attorneys General to enforce the laws against those who cross the line and join the bandwagon of hate in the name of freedom of expression.
As Mr. Justice Cory pointed out more than 15 years ago, laws against hate were justified because inciting hatred can be "as damaging as actual physical violence."
"Limits on free speech," said the justice, "must be considered as much as the right itself."Amen.
(Faisal Kutty is a lawyer with the firm of Baksh & Kutty. He is a board member with the Canadian Council on American Islamic Relations and general counsel for the Canadian Muslim Civil Liberties Association. His articles are archived at www.faisalkutty.com.)
Gallup - February 13, 2006
Muslims and the West: A Culture War?
by John L. Esposito
Newspaper cartoons of the prophet Mohammad have set off an international row with dangerous consequences, both short and long term. The controversial caricatures first published in Denmark and then in other European newspapers, target Muhammad and Islam and equate them with extremism and terrorism. In response to outcries and demonstrations across the Muslim world, the media have justified these cartoons as freedom of expression; France Soir and Germany's Die Welt asserted a "right to caricature God" and a "right to blasphemy," respectively.
One of the first questions I have been asked about this conflict by media from Europe, the United States, and Latin America has been, "Is Islam incompatible with Western values?" Are we seeing a culture war? Before jumping to that conclusion, we should ask, whose Western democratic and secular values are we talking about? Is it a Western secularism that privileges no religion in order to provide space for all religions and to protect belief and unbelief alike? Or is it a Western "secular fundamentalism" that is anti-religious and increasingly, post 9/11, anti-Islam?
What we are witnessing today has little to do with Western democratic values and everything to do with a European media that reflects and plays to an increasingly xenophobic and Islamophobic society. The cartoons seek to test and provoke; they are not ridiculing Osama bin Laden or Abu Musab al-Zarqawi, but mocking Muslims' most sacred symbols and values as they hide behind the facade of freedom of expression. The win-win for the media is that explosive headline events, reporting them or creating them, also boosts sales. The rush to reprint the Danish cartoons has been as much about profits as about the prophet of Islam. Respected European newspapers have acted more like tabloids.
What is driving Muslim responses? At first blush, the latest Muslim outcries seem to reinforce the post-9/11 question of some pundits, "Why do they hate us?", with an answer that has become "conventional wisdom", "They hate our success, democracy, freedoms" … , a facile and convenient, as well as wrong-headed, response. Such answers fail to recognize that the core issues in this "culture war" are about faith, Muhammad's central role in Islam, and the respect and love that he enjoys as the paradigm to be emulated. They are also more broadly about identity, respect (or lack of it), and public humiliation. Would the mainstream media with impunity publish caricatures of Jews or of the Holocaust? As France's Grand Rabbi Joseph Sitruk was quoted by The Associated Press: "We gain nothing by lowering religions, humiliating them, and making caricatures of them. It's a lack of honesty and respect," he said. He said freedom of expression 'is not a right without limits.'"
A recently completed Gallup World Poll, which surveyed those in predominantly Islamic countries from Morocco to Indonesia, enables us to find data-based answers about Islam by listening to the voices of a billion Muslims. This groundbreaking Gallup study provides a context and serves as a reality check on the causes for widespread outrage.
When asked to describe what Western societies could do to improve relations with the Arab/Muslim world, by far the most frequent reply (47% in Iran, 46% in Saudi Arabia, 43% in Egypt, 41% in Turkey, etc.) was that they should demonstrate more understanding and respect for Islam, show less prejudice, and not denigrate what Islam stands for. At the same time, large numbers of those surveyed cite the West's technological success and its liberty and freedom of speech as what they most admire. When asked if they would include a provision for freedom of speech, defined as allowing all citizens to express their opinions on political, social, and economic issues of the day if they were drafting a constitution for a new country, overwhelming majorities (94% in Egypt, 97% in Bangladesh, 99% in Lebanon, etc.) in every country surveyed responded yes, they would.
Cartoons defaming the prophet and Islam by equating them with terrorism are inflammatory. They reinforce Muslim grievances, humiliation, and social marginalization and drive a wedge between the West and moderate Muslims, unwittingly playing directly into the hands of extremists. They also reinforce autocratic rulers who charge that democracy is anti-religious and incompatible with Islam.
Where Do We Go From Here?
Core principles and values, like freedom of speech, cannot be compromised. However, freedoms do not exist in a vacuum; they do not function without limits. In many countries, hate speech (such as Holocaust denial, incitement to racial hatred, advocating genocide) is a criminal offense prohibited under incitement to hatred legislation. Our Western secular democracies represent not only freedom of expression but also freedom of religion. Belief as well as unbelief needs to be protected. Freedom of religion in a pluralistic society ought to mean that some things are sacred and treated as such. The Islamophobia that is becoming a social cancer should be as unacceptable as anti-Semitism, a threat to the very fabric of our democratic pluralistic way of life. Thus, it is imperative for political and religious leaders, commentators and experts, and yes, the media, to lead in building and safeguarding our cherished values.
And what about Muslim responses? Muslim leaders are hard pressed to take charge, asserting their faith and rights as citizens, affirming freedom of expression while rejecting its abuse as a cover for prejudice. A sharp line must be drawn between legitimate forms of dissent and violent demonstrations or attacks on embassies that inflame the situation, and reinforce Western stereotypes. The many Muslim leaders, from America and Europe to the Muslim world, who have publicly urged restraint and strongly condemned violence, play a critical role.
Globalization and an increasingly multicultural and multireligious West test the mettle of our cherished democratic values. As the current cartoon controversy underscores, pluralism and tolerance today demand greater mutual understanding and respect from non-Muslims and Muslims alike.
(John L. Esposito, is Professor at Georgetown University and author of What Everyone Needs to Know About Islam and Unholy War: Terror in the Name of Islam. Esposito is a Gallup Senior Scientist and co-author of the forthcoming Can You Hear Me Now: What a Billion Muslims Are Trying to Tell Us)
http://poll.gallup.com/content/?ci=21454
February 13, 2006
The cartoons from hell
By Eric S. Margolis
One does not know whether to laugh or to cry.
The inflammatory and racist cartoons of the Prophet Mohammed originally published by a sensation-seeking Danish newspaper have turned into a cause célèbre and are producing a firestorm of hysteria and racism around the world.
Mobs of enraged Muslims have rioted from Morocco to Indonesia and burned Danish and Norwegian embassies. Editors of other European newspapers that foolishly ran the offensive cartoons piously insist they did so to defend the sacred right of free speech.
This writer detests any form of censorship, including so-called `hate laws’ that are really modern forms of heresy and blasphemy statutes.
But free speech, as the great American jurist Felix Frankfurter said, does not include the right to scream `fire’ in a crowded movie theater. And that’s just what the European newspapers did. They were trying to boost circulation and pander to anti-immigrant right wingers by attacking Islam.
Nor is it a coincidence these grave insults occurred in Denmark. Its current rightwing government has been close to President George Bush, sent troops to Iraq and Afghanistan, and has not done enough to talk to Denmark’s small Muslim community.
While the Danish government had no direct responsibility for the cartoons, it helped foster a climate of hostility to Muslims and was clearly playing to rightwing voters. In fact, anti-Islamism is becoming a staple for many parties of the right.
This whole ugly cartoon business is really about anti-Islamism – the modern version of 1930’s anti-Semitism. Today, promoting hatred and scorn for Islam and Muslims has become one of the few socially and legally acceptable modern prejudice in western society.
Just questioning the Jewish holocaust in Germany or Austria can result in a jail sentence. The historian David Irving is in an Austrian prison right now for having questioned some details of the Jewish holocaust over a decade ago.
In the west, it’s totally taboo to make claims like homosexuality is wrong, or women are less intelligent than men. No American, Canadian or European newspaper editor would ever dream of running grossly anti-Jewish cartoons. But it’s OK to slander Islam.
The Danish paper that ran the racist cartoons `to defend free speech’ refused in 2003 to run satirical cartoons of Christ, saying `it would provoke an outrage.’ So much for claims of defending free speech.
America’s four leading evangelical Protestant leaders, reverends Jerry Falwell, Franklin Graham, Pat Robertson, and Marvin Olasky preached a `crusade’ against Iraq. Graham branded Islam `an evil and wicked religion.’ They called the prophet `a terrorist.’ Among American evangelical Christians, 87% supported invading Iraq and hoped to convert Iraq’s Muslims to Christianity. Yet they condemn Islam as a violent faith.
Italian writer Oriana Fallaci churns out best-sellers calling Islam a dirty, backwards creed of violent thugs.
In Paris, a Jewish newspaper editor, who should know about promoting hate against minorities, ran the Danish cartoons in his newspaper.
In liberal Holland, it’s cool to despise Muslims. In America, pseudo-historians like Bernard Lewis and professional hate-mongers like Daniel Pipes scourge Islam and Muslim movements.
One Danish cartoon of Prophet Mohammed shows him with a long, hooked nose, thick lips, a sinister, malevolent glare on his ugly, semitic face and a curved dagger in his hand. Change the caption `Prophet Mohammed’ to `Jew swine’ and you have the exact double of Nazi anti-Semitic hate cartoons of the 1930’s straight out of `Die Sturmer.’
That’s what this is all about. Modern anti-Semitism, reborn. These cartoons are emblematic for what many Europeans are whispering: `we hate Muslims. We want all Muslims out of Europe. Make Europe Muslimfrei!’ In the 1930’s, Europeans held the same loathing for Jews.
There is no doubt all Muslims and Islam have been gravely offended. But having said this, too many Muslims have been reacting hysterically by rioting and burning embassies. The Prophet Mohammed and Islam don’t need rioters and arsonists to defend them.
In an act of incredible childishness, Iran’s largest newspaper says it will solicit and run cartoons of the Jewish holocaust, proving there is no sickness as contagious as stupidity. Iranian newspaper editors can be just as idiotic as Danish ones.
Muslims suffered 150 years of the most brutal European imperialism and exploitation. Millions of Muslims were slaughtered by European and Russian colonialists, though we never hear about this green holocaust. Europe’s 20 million Muslims are third-class citizens. Muslims have every right to anger.
But where were all these angry Muslims when Serbs were massacring 250,000 Bosnians, gang-raping thousands of Bosnian Muslim girls and women, and blowing up mosques? Why have there been almost no protests over Russia’s horrifying genocide in Chechnya? Or India’s brutalities in Kashmir. Or the US invasion of Afghanistan and Iraq, and Australia’s turning East Timor into a political, economic and military protectorate?
Muslims have shamefully remained silent. Or bought arms and goods from nations oppressing Muslim nations. So why now all the rage over some crass racist cartoons in a Danish newspaper, of all places?
If Muslims are to fly into a rage, let it be over these major violations of human rights, not a nasty insult in far-off Denmark.
At least protesting by boycotting exports of nations that are hostile to Islam or persecuting Muslims is a sensible response against injustice. Rioting and burning are worthy of adolescents and simply reinforce lies being spread by anti-Islamic hate-mongers that Muslims are violent and backwards.
http://www.ericmargolis.com/
margolis@foreigncorrespondent.com
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