The truth is not a defense
A couple of years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article’s tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal.
Sigh – not just conservative magazines and blogs. Why is this so hard to grasp? Islam is not left-wing or liberal. Islam itself is far, far more conservative than most of the conservative magazines and blogs in the US. Islam is reactionary; Islam is in many ways medieval. It is not, repeat not, just conservatives who have strong reservations about ‘the rise of Islam.’ You don’t have to be a conservative to argue that the rise of Islam threatens liberal values – although being a conservative may tend to cause you to call liberal values ‘Western’ values, which is silly and wrong. (Newsflash: one of the values in question is universalism, which means that the values can’t be purely Western ones, and they’re not; they done spread.)
Things are different here. The magazine is on trial. Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated a provincial hate speech law by stirring up hatred against Muslims. They say the magazine should be forbidden [to say] similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their “dignity, feelings and self-respect.”
But what if the rise of Islam does in fact threaten liberal values? What then?
[T]he lawyer for Maclean’s, Roger D. McConchie, all but called the proceeding a sham. “Innocent intent is not a defense,” Mr. McConchie said in a bitter criticism of the British Columbia law on hate speech. “Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”
Oh. You can’t say it even if it’s true. That’s interesting.
I would like to believe that this aspect of any Provincial law is repugnant to Canada’s Charter of Rights and Freedoms. Unfortunately, there is the “notwithstanding” clause . . .
I don’t think it is hard to grasp, it’s just that there is a fair amount of crypto-racism in some of the criticism of Islam.
Hence, “liberal” people leap to it’s defence rather than the more rational action of attacking the cryptos.
I call it suicidal liberalism DFG.
Huh?! The lawyer for MacLean’s said it, I guess he was polishing up on his good ole rhetorical devices then – I hope he didn’t confuse the judge as he seems to have confused Ophelia. Or did the judge or the accuser actually say that ‘truth was not a defense’ (& even if he did, I guess there are fine juridical examples to be found where to say you merely did say the truth is in fact not a defense, but a we-say/you-say escape).
I do not see why muslims should not try to get the best of the law. Whilst I do see why they should not get what they’d think is the best, I do not see why the thing should be an issue before it’s to its conclusion. I don’t think hate laws are by definition bad law or provincial (even if voted by provincial authority) but I do think they’re suspect (that is however just our idea, not the idea).
JoB – I have been following this case with interest. True, it was the MacLeans Lawyer who, somewhat rhetorically stated ‘truth is not a defence’, however, a reading of the relevant section of the Canadian Human Rights Act reveals that truth, fair comment, opinion or other standard defences in libel cases do not apply:
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Of course the best way to fight this is to make use of it. Put in complaints about *everyone* whenever they open their mouths. IN particular, complain about other complainants’ speech. There is nothing so likely to make people change their minds about a law as when they fall foul of it.
I think that many muslims, including the current complainants, imagine that the law is there to protect Islam and that the “human rights” talk is merely a means to this end. A few complaints against them will change their minds.
This is a very troubling case for Canadian freedoms. You don’t have to agree with Mark Steyn to believe this. If the Human Rights Commission, which is an extra-judicial body, finds for the plaintifs, then, with any luck the whole matter will be taken to the Supreme Court, and decided there.
It is, in my view, very dangerous to put issues of freedom of speech to the adjudication of extra-judicial bodies. They are intended for local questions of hate speech, by employers, by people on street corners, but not large questions such as the publication of political analysis in national magazines. The HRC in this case should have recused itself. It does not have the means to deal with this case. If it finds against Macleans, then we have a very serious question about freedom of speech in Canada.
On the other hand, if the HRC does find in favour of the plaintifs, then it is time to start monitoring very closely the utterances of religious groups, which are just jam packed with hate speech all the time.
Just a quick comment regarding “Western values”…
One of the nuances that comes up, (on some of the American ‘conservative’ sites I’ve frequented, anyway – know thine enemy, etc), is that “Western” is a desperately unsubtle way of saying “christian”, without actually, er, saying it.
The notion of them subscribing to what we might better term “Enlightenment Values” without this particular religious caveat, well…that’s just crazy talk!
:-)
John, thanks, that’s very helpful. No, I definitely would not vote for such a piece of crap. That being said, it’s a mighty strange rhetoric unless he used it in the context of questioning these law’s constituionality. Did he?
As I said, ‘telling the truth’ is not, & cannot be, enough to bail you out of any juridical issue – it should not be too difficult to find exceptions based on non-crap law.
JoB, I think the lawyer was, to a degree, playing for the crowd. The composition of Human Rights Commissions (HRC) vary between provinces, but crucially, every case brought under section 13.1 of the CHRA has found in favour of the plaintiff, and the lawyers for MacLeans know this and I suspect are playing this case fairly straight on the basis that a ‘conviction’ will give them freedom to both show up the commissions for what they are and appeal the decision to a real court.
OB is correct of course, that this issue is one of concern for the entire political spectrum – if however you can stomach his right-wing rhetoric and provocative style, Ezra Levant (who awaits his own trial for publishing the Danish Cartoons) has been one of the most informative commentators on this case as well as the Kafkaesque abuses of due process by various HRC investigators and prosecutors:
http://ezralevant.com/
Er, whoops, that last was me, sorry JoB
Happened to me as well, John, no issue.
If he prepared for an appeal, I’d think he might need more than some rhetorical device. Putting words in judge’s mouths is, as far as I’m concerned, not a fair way of introducing an appeal. Is he now attacking the law (which would be fair, given your quote) or the interpretation of it by panels, or this interpretation made by previous panels or the specific interpretation of this panel.
I think he could do all of the above, I also think his rhetorical devices would be confusing any of these points. Sorry to be legalistic but that is, imho, the only way you can deal with this BS.
JoB, I am, of course, not privy to the strategy of MacLeans legal team, though I’m not sure that there was any attempt to put words in to the mouths of the tribunal panel (they are not court judges).
It seems clear to me that MacLeans will appeal any ruling against to the Canadian Supreme Court.
Section 13.1 or the CHRA was examined by the Canadian Supreme Court in 1990, and in a majority 4-3 decision the court upheld the clause as follows:
In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase “hatred or contempt”, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.
————
The trouble for the HRC is that in the MaclLeans case, and indeed in many of the previous section 13.1 cases, subjective opinion as to offensiveness has clearly supplanted the proper meaning of the clause.
JoB, it’s not rhetoric, it’s part of the BC act itself – it does explicitly say that truth is not a defense. I’ll go find a reference, but I did read that in some of the coverage yesterday. It’s a rather drastic clause, inserted, I’m sorry to say, by the NDP.
Sorry, I got that wrong, I think – the act doesn’t spell it out. But I think the McLeans lawyer’s point was and is that the act doesn’t give any of those as exceptions; it doesn’t say ‘except in cases where’ etc.
Section 7.1 is the relevant bit.
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b) is likely to expose a person or a group or class of persons to hatred or contempt
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
—
Likelihood of exposing someone to contempt covers one HELL of a lot of ground. That’s a really staggering piece of legislation.
Andrew Coyne’s blog from the trial is good value.
The original article by Steyn in MacLean’s magazine which got the “Islamophobia complaint” started is here: The future belongs to Islam.
Kathy Shaidle (who’s also in the process of being sued for writing things similar to Steyn) has been blogging regularly on this at Five Feet Of Fury. She’s also written a good summary of the kangaroo-court CHRC proceedings: The Kafkaesque Show Trial of Mark Steyn. The Wikipedia entry and Farewell Free Speech (interview with Coyne) are also good overviews.
Also, regarding truth as a(non)defense against perceived hate propaganda in Canada, there’s this, quoting our Dept. of Justice: The draconian government defence of hate speech laws:
I notice that someone from Calgary is going to deliver a lecture entitled “A paradox of hate speech laws,” at Dalhouse University in Halifax, on 20th June. Get in touch with the philosophy department.
First; First Amendment. First in importance and in position. Second is the militia one. And it wasn’t JoB who said truth is not a defense, it was the lawyer for Maclean’s.
The tension between individual rights and group rights is of course a red hot one, perhaps especially in Canada. Cf. Will Kymlicka and also Charles Taylor.
Sorry, first! The tension is espcially concerning in Canada, because Human Rights Commissions are politically appointed, provincial, extra-judicial forums with quasi-judicial powers. A recipe for disaster.
John, Ophelia, Geoffrey,
Thanks, I appreciate the issue now. As far as I can see the Supreme Court was pretty wise, but not quite decisive in the face of ´lower´ decisions. I´m not personally convinced this kind of law, whilst preferably to be avoided, is in & of itself avoidable. Here we saw the leader of a political party shouting a statement that ‘all Ali Baba´s were to go back to Mekka’ & stuff of that sort (not trying to be literal here), as it stands his party was convicted under a racism law which led to a lot of um-um from everywhere. I don´t think that it was a matter of life and death that it came to this conviction but I can well imagine that sometimes neo-fascism can be at a level that it would be.
Probably, I should apologize to lawyer man here but I still think his defence was too high on emotion, & too thin on law (but then again, I did not read it all).
Eric,
No I did not say that but I did say, & maintain, that telling the truth isn´t enough to win a juridical debate – you at least have to connect this truth to the matter at hand. Richard here did a prime example of telling a truth which had no relation to the matter at hand, it is too simple to go waving ´truth´, all the more because there´s the trend of people thinking truth is an easy to achieve thing, which is a bit like the thought that legal proceedings are ´a long detour to arrive at common sense´ where good legal proceedings are quite are only line of defense against those that go after Maclean´s.
JoB – huh? What Supreme Court? What leader of a political party? Are we talking about the same events here? The subject is a magazine article by a journalist, not a shouting by a political leader.
You’re wrong on the facts about what the lawyer said; it becomes clear from Andrew Coyne’s report that there really are no rules. The lawyer alas was not being rhetorical, he was making a factual statement: there is no defense.
Ah, I just saw your response to JoB, Ophelia, as I was putting up this one, so I won’t say any more. (I had closed it down, determined not say more, then changed my mind!) That’s just the point. The lawyer was saying that even truth is not a defence, and that really is a problem, surely. Richard’s ‘truths’ were about something else entirely, and not pertinent to the issue at hand. Mr. McConiche’s truth was but was not relevant. There’s a difference.
Ophelia – on the last point: I stand corrected. On the first point, sorry for the confusion – the reference to the Supreme Court was in response to John´s quote of their ruling whereas the reference to the political party ´shouting´ was to events over here in Flanders.
Eric, yeah, but my point is that truth is abused lightly.
“you at least have to connect truth to the matter at hand. Richard here did a prime example of telling a truth which had no relation to the matter at hand, it is too simple to go waving ´truth´, all the more because there´s the trend of people thinking truth is an easy to achieve thing”
My Flemish politician shouting an “All Ali-Baba´s back to Mekka” defended his shouting saying 1. Islam is backward & 2. muslims committed more crime. There is truth to both 1. & 2. (which is why he managed to get up to 30% of votes), but no justification for his shouting, at all.
JoB – thanks for clarification.
But about truth – that’s a red herring. Of course truth isn’t necessarily sufficient for a defense, but no one said it was; that’s not the point. In context it’s pretty obvious that that’s not what the lawyer was saying, so your claim is just a diversion. (Part of the context is for instance that truth is a defense in libel suits – at least, outside the UK it is. In the UK, apparently almost nothing is a defense, especially when the plaintiff is a certain litigious Saudi jillionaire who likes to get books destroyed.)
Oops, that was a cross-post, doubly – I was answering the earlier comment but Eric’s and JoB’s both arrived before I posted it.
Eric, I don’t want to boot you off (why would I?) – but again you are kind of reinventing the wheel. You’re posing your questions as if you were the lone voice asking them, but I’ve been talking about this stuff here for five years. Of course you’re not wrong to think we have a cultural problem here – or at least of course I don’t think you are. I just don’t quite get why you so often talk as if you were struggling against a gale of opposition. I’d have thought my views on the subject were obvious enough.
Have you never looked at In Focus, by the way?
Eric–if it makes any difference, I didn’t find what you were saying unwelcome, even if I was disagreeing with it. What I’d like to see from Muslims is the same as what you’re saying you would like to see. The difference is that I see more of it happening than you do.
That’s actually one reason why I dislike these laws–it’s a way of stifling internal dissent amongst Muslims. Is Irshad Manji guilty of hate speech against Muslims? Or Fatima Mernissi, or Yasmin Alibhai-Brown?
OB, fair enough but for the record: I was not implying anybody said it, I’m just trying to explore this tangential point because it struck me (& from the original quote in your post it was far from clear what the context was). This is by the way not a libel case, and my example was a similar case – & in this case truth should not be the defense – it should be whether or not one of the following obtaines:
1. it’s not here a matter of “hatred & contempt” as per the law & that strict interpretation given by Supreme Court
2. it’s a law (or a proceedings) which are fundamentally unconstitutional, so overturning a previous Supreme Court’s judgment
3. the specific proceedings violate an higher-order law – e.g. the rights for a proper defense, impartial judges (it seems from the last post at least this will stick)
Sorry, now I’m at it again ;-) I’m sure the lawyer is doing this – or something even much more grand – but this “truth” bit doesn’t sit well with me (examples of why, see above).
Eric, are you biting yourself?
Eric, I don’t know why you address me & then write as if you were delivering an introduction speech to the UN but
a. we have been over that
b. I didn’t comment on Canadian muslims
c. that was not the question you said a couple of posts ago that you would bite in
Sorry JoB.
1. I don’t remember that far back in these online discussions (regarding my biting into questions).
2. I write like that. Isn’t it a pain?
3. Muslims anywhere in democratic polities are on the table, as it were. If they want to be part of the society, they need to be involved. If they’re not, they get constructed as the other, and then they blame bigots like me for getting worried.
4. We may have been over that. I guess I just needed to go over it again. In that case you can just ignore me.
5. The problem is an ongoing one. Just read all the repetition in the different sections of B&W. If it wasn’t a big problem, it only needed to be said once.
Eric, short on memory & long on words – since you ask: yes that IS a pain. Your muslim situation is not THE situation – &, damned, I’m not involved in a bloody society so why should they?
What’s wrong with jihadist Muslims? And yes, this is a serious question.
And in an attempt to bring some context or grounding or something into the exchange.
How much, and in what ways, has your life or behaviour been altered by the recent Muslim ‘influence’ on society?
But it’s not just a question of my life. Yeah, I’m okay, but school-age girls in Afghanistan (and Eldorado, Texas) aren’t. I could perfectly well ignore that, but I think it’s better not to.
Well, Afghanistan is more afflicted by tribalism than Islam, but I get your point.
There’s not much hope for it now. I think both my examples and my argument have been misunderstood, but it’s too late to try again. I had contemplated another address to the UN, but it’s safer just to keep mum.
well I got what you were saying Eric although that is little help because I am crazy! I think the main reason that jews didnt band together was because one of the main libels that was used against them was that they had dual loyalties,so I think that they avoided mass action because they feared that it would be portrayed as a jewish fith colum.
Good point, Richard.
Eric,
I think we understand your point, but also disagree with it. Perhaps, like many Boards, it’s a a big storm about small degrees of difference.
In this case, I completely disagree that anyone has any obligation to tell society what they think. Regardless of whether it may be ‘good’ for them to do so.
That way lies the Gulag.
& Don’t stop posting.
Ophelia, Oops – everything struck from the records? That’s a disappointment – maybe it was not beautiful but I could not see anything really wrong with it. It’s not a matter of not being able to say things like that, I hope.
JoB – everything? Well obviously not, since there are 43 comments. But I deleted the last few. No, there was nothing wrong with it, but it was a tangent, it was very wordy, it got heated, it went nowhere, it had stopped – and I felt no need to preserve it forever. I don’t necessarily preserve every comment forever. It costs money to keep them.
Your call, obviously – but it makes me a little paranoid: is it a coincidence that of all OT the OT is dropped which discusses the J-word? The more because it was much less OT than appreciated – but your call, obviously/ungrudgingly, if the latter is English at all ;-)
Thank you Ms Benson!
“Islam is not left-wing or liberal. Islam itself is far, far more conservative than most of the conservative magazines and blogs in the US. Islam is reactionary; Islam is in many ways medieval. It is not, repeat not, just conservatives who have strong reservations about ‘the rise of Islam.'”
Why do we forget that those ‘conservative’ anti-islamists are the same people who used to sing the praises of Afghan ‘freedom-fighters’ and our ‘freedom-loving’ allies like Saudi Arabia?
Why do we forget that ‘progressive’ demonstrators against American intervention in Afghanistan are the same people who used to march in support of Soviet intervention?
Why is it that the clear and present danger of Islamist imperialism fails to distract westerners from their relentless, cold-war parochialism?
Thank you Ms Benson!
“Islam is not left-wing or liberal. Islam itself is far, far more conservative than most of the conservative magazines and blogs in the US. Islam is reactionary; Islam is in many ways medieval. It is not, repeat not, just conservatives who have strong reservations about ‘the rise of Islam.'”
Why do we forget that those ‘conservative’ anti-islamists are the same people who used to sing the praises of Afghan ‘freedom-fighters’ and our ‘freedom-loving’ allies like Saudi Arabia?
Why do we forget that ‘progressive’ demonstrators against American intervention in Afghanistan are the same people who used to march in support of Soviet intervention?
Why is it that the clear and present danger of Islamist imperialism fails to distract westerners from their relentless, cold-war parochialism?
JoB, of course it’s coincidence; there’s no shortage of discussion of “the J-word” here. Please don’t be silly. It was a tangent, it went on and on, it was bad-tempered, it was fucking boring. I’m not running an all-purpose discussion board here, and I’m certainly not offering an eternal archive.