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Hate Censorship or Jewish Freedom of Speech:
A Choice Only a Masochist Would Envy.
By Dr. Stefan Braun
A remarkable, I dare say historic, event occurred
in the Canadian Jewish community recently. It is one that
carries important lessons for Americans thinking to follow the Canadian hate
censorship route to freedom from fear and bigotry. In a heart-wrenching essay
entitled, “Live and learn: confessions of a Jewish Professor,” [Canadian
Jewish News, Oct. 23, 2008, page 9] Ed Morgan, a Jewish professor of law at
the University of Toronto and a highly respected authority on freedom of speech,
bares his soul on hate censorship, “confessing” that his pro-silencing views on
the “regulation of hate speech may have been misguided.” For
someone who has invested his life’s work and professional reputation helping to
shut up the likes of James Keegstra, and booting from Canada Rwandan genocide
propagandist Leon Mugasera, this is a stunning admission.
When is the last time you heard a nationally recognized scholar, and celebrated
human rights advocate, admit he was wrong?
But this confession is much more than that.
You see, Ed Morgan is not just any recent convert to freedom of speech.
He served as Ontario Regional Chairperson and then National President of the
Canadian Jewish Congress, one of the leading public voices for hate censorship
laws in Canada. This “confession” is no ordinary mea culpa.
It is not just an in-house academic spat, an esoteric falling out among
intellectuals in the far off reaches of academe. It is about
the future welfare of a historically vulnerable community, and a possibly
divided leadership with a real dilemma on how best to protect it.
Hate censorship law was the brainchild of the CJC
back in the early sixties in response to worrisome rise of Neo-Nazi activity in
Canada the decade before. Parliament directed Maxwell Cohen,
Canada’s first Jewish Dean of Law to study the problem. The result was the
criminalization of “hate propaganda” in Canada, following on the recommendations
of the Cohen committee. This was the crowning jewel of Congress’s efforts to
“eradicate hate.” No more persecution. No more Holocausts.
No more anti-Semitism; at least, not in a free and democratic society
That such a long-suffering minority should seek
shelter from a millennial history of unspeakable persecution, under the canopy
of hate censorship laws, is perfectly understandable. But
this just makes Professor Morgan’s free speech coming out all the more
incomprehensible. It’s not every day that a committed
community leader puts his personal convictions ahead of his community’s most
historically sensitive mandate, and himself under its critical scrutiny.
So why the change of heart now, when anti-Jewish sentiment is once again
rearing its ugly head, and the case for censorship to quell it greater than
The answer may seem surprising.
Simply put, the Jewish community has become a victim of its own hate
censorship “successes.” At one time, the Jewish community
virtually owned the rights to the idea of public silencing for hate.
Today, with historic Jewish censorship “victories” against the likes of
James Keegstra and Ernst Zundel leading the way, the idea has completely taken off, shared
by academics, minorities, feminists, gays, nationalists, the religious, even
leading lawyers, and sitting judges. Zero tolerance of
minority intolerance, is no longer simply a “Jewish” idea about how to deal with
fascists and Nazis. It is now a multicultural idea on how to
promote Canadian diversity and protect social democracy. Few
if any who sat on the Cohen Committee could ever have imagined how tightly this
idea would be woven into the very fabric of the Canadian political consciousness
to condition social discourse and shape public debate.
So, shouldn’t Professor Morgan be celebrating,
instead of “confessing”? Indeed, shouldn’t all Canadians be
celebrating? Not quite.
enforced “right” was intended to be used for the public good only as a last
resort, against the vilest and clearest case of ignorance and bigotry, when
neither rational discussion nor considered debate was thought feasible.
But that, in political practice, is not how it has worked out.
The laws’ eager and sweeping public embrace has turned out to be its
Achilles political heel, taking flight in ways only a few had imagined, and not
enough had feared. Hate silencing has not only shaped public
debate. It has twisted it. It has not only conditioned
public discourse. It has corrupted it. In the multicultural
society that is Canada today, hate speech, in political practice, is not what
the Cohen committee intended it to be but, instead, whatever the meaningfully
offended say it is. Unfortunately, different offended say,
and see, different things, as hate. Traditionalists’ family is feminists’
misogyny, and vice-versa; secularists’ skepticism is Muslims’ blasphemy; Jews’
Zionism is Palestinians’ racism; evangelists’ abomination is gays’ human rights;
developers’ economic freedom is Natives’ rapacious cultural genocide.
Why debate such disagreements and risk your case or your cause, when you
think you can club your opponents into silence, and be assured of success?
Bludgeoning our most
deep-seated social disagreements into submission with threat of hate silencing
is the new “progressive” social order of public business of the day.
Where an American might say, “Your right to say it does not mean that
what you say is right,” a Canadian will say, “You have no right to say it
because what you say is wrong, and illegal.” Who is better to embrace this philosophy,
in the age of clash of civilizations and offended sensibilities, than rival
social, cultural, and religious minorities?
Substituting censorship might for free speech demonstration of right, it turns out, is a
slippery legitimating political slope and a double-edged social silencing sword.
It can be deployed to attack not just to defend, to divide not just to unite, to repress not just to liberate, to darken not just to enlighten – all in the name of tolerance, social
justice, and historical truth. Its theoretical “beauty”, is
its practical ugliness. In short, anti-hate silencing has
morphed into an instrument of intolerance like no other.
No one should know this better than the Canadian
Jewish community itself. Of late, the sharp edge of the hate
silencing sword has increasingly been resting on the throat of the Jewish voice.
Maclean’s, Canada’s foremost mainstream magazine, is unabashedly hauled
before the Canadian Human Right Commission by outraged Muslims, for running New
York Time’s best-selling author Mark Steyn’s biting political commentary on the
dangers of radical Islam. The Western Standard, a
conservative Jewish publication, is bankrupted into future silence defending against
anti-hate human rights complains for reprinting the Mohammad cartoons.
At York University, a complaint is lodged against Hasbara, a
Zionist student organization, alleging that the very image of the blue-and-white
Israeli flag appearing on the groups’ pamphlets is hateful and must be banned.
Writes Morgan, “the Keegstras and the Zundels of
yesteryear have morphed into the Mark Steyns and the Hasbara students of today.”
A shield against brazen intolerance of Jews has been turned on its head,
into a sword against the legitimate exercise of the Jewish voice.
A public-serving idea has been turned into a self-serving idea.
Politics does funny things to good intentions.
Today, the Canadian Jewish community is at a
difficult cross-road, of their own making. They can claim a right to freely
silence; or they can claim a right to freely speak. But they can no longer
freely, and fearlessly, do both at the same time. They need choose.
For, they no longer enjoy exclusive political rights to the laws and
regulations of hate censorship. History has refused to stand
still for the benefit only of Jewish hate censors. Indeed,
double-edged social silencing swords like those aimed against hate speech do not
stand politically still for the silencing convenience of anyone.
No one is immune to one day be hoisted on his own hate silencing petard.
Jews in Canada, like Jews everywhere, are only the proverbial historical
canary in the political mineshaft of anti-hate intolerance.
Fear to freely speak, for them is, ultimately, society’s omen of danger to
freely speak for everyone. We ignore it, at our own risk.
It is this belated realization, I surmise, that
has caused Professor Morgan to rethink hate censorship, leaving others in the
Jewish community still clinging to a false faith in public silencing to
guarantee their freedom from fear with an agonizing choice.
Chart a new, more politically, and intellectually, demanding free speech
friendly course to answer ignorance and bigotry; or circle the censorship
wagons, man the silencing barricades, withdraw into self-denial, and hope for
Misguided faith in hate censorship is only one of
Professor Morgan’s two historic confessions, here. Misguided
faith in “rational dialogue and academic debate” with “one-state” boycotters of
Israel, is the other. These rejectionists question the very
legitimacy of a distinctive Jewish homeland, and deny a right to freely and
fearlessly speak in defense of it.
Under the circumstances, Professor Morgan's reluctance to engage in "debate" is perfectly understandable. You’re not going to have
constructive dialogical discourse in a shared space with someone who demands
your acceptance of collective national suicide, and your public silence to boot,
as the cornerstone of discussion for resolving a conflict of national
identities. What is puzzling, here, is not Professor Morgan’s declination to
directly engage but his defensive characterization of it as a point of free
speech that “the most ardent free speecher would have to draw the line” on.
With respect, this is to fall back on old, “misguided” ways of thinking
about the meaning of freedom of speech.
The question of engagement here has nothing to do
with how much of a “free speecher” one is. A right
to speak is not a requirement to speak; much less a diktat as to
how, when, where, or who to speak to. Declination to engage
here is not about freedom of speech but a tactical question of sensible exercise
of it. One is no less a “free speecher” for wisely thinking
it futile to engage in “rational debate” adversaries who deny your historic
right to exist and to freely speak (choosing instead alternative more productive
channels of communication to answer them) than one is more of a “free speecher”
for choosing naively to engage them. There is nothing in
the concept of freedom of speech requiring “free speechers” to be dim-witted.
There is no restriction or limit on the right to speak here.
Nothing, and no one, is taken away. Communicative smarts is
not about “drawing a line” on freedom of speech, but an illustration of the
consummate flexibility of its exercise. Such misconstruction
of the meaning of free speech is not inspiring testimony from one who now avers
to see the free speech light, but rather lingering evidence of incomplete
emergence from the censorship darkness. Failing to
appreciate such distinctions, risk forfeiting any claim of authority on freedom
of speech to enlighten the censorship faithful on the error of their ways.
Choosing freedom of speech over hate censorship is
a painful choice for any historically vulnerable minority to make, but
especially for one so timelessly and ceaselessly persecuted as Jews.
To be sure, freedom does not come without risk. Voice
is no panacea against hate, as American Jews know all too well. But without it, the civil,
the peaceful and the more tolerant, have nothing with which to defend
themselves. Public voice on public matters is the freedom on
which virtually all the other freedoms in a democracy, ultimately, depend.
It is the freedom on which the Jewish voice depends. Hate censorship has
turned out to be a false promise of security from fear. It
is not what it appeared to be. It was in fact a temporary
shelter, an artificial shield, an albatross around the neck of the Jewish voice
under growing assault for daring to be freely heard.
Canadian Jews have been living in self-denial. It is time to
read the censorship writing on the wall. As Professor Morgan now appreciates, if
we “read our history correctly,” the Holocaust began “not only with words, but
with book burning.”
Trusting in hate censorship to secure your freedom
from fear is seductive. But be prepared to be betrayed. Hate
censorship is a Trojan horse of public intolerance, dressed up in the seductive
garb of tolerance, slowly, subtly, and deceptively sucking the lifeblood out of
freedom for the Jewish voice. That is the painful lesson that some Canadian Jews
are only now beginning to learn. Professor Morgan’s courageous “confessions” and
bold example, openly stepping up to the free speech plate and renouncing hate
censorship business as usual, should be applauded, and embraced, by all.
Free-speaking American Jews contemplating following in our fear-thinking hate censorship footsteps, take heed –
it can be worse!
* Dr. Stefan Braun LL.B, LL.M, Ph.D. has authored numerous scholarly articles on hate censorship and a nationally acclaimed book on the subject: Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada, Toronto, (University of Toronto Press) 2004. 2006 Harold Adams Innis Prize Finalist for the best peer-reviewed English language book in the social sciences in Canada. His most recent article is "Second-class Citizens: Jews, Freedom of Speech, And Intolerance on Canadian University Campuses, Washington and Lee Journal of Civil Rights and Social Justice, 12(2) 2006, 1.
from the December 2008 Edition of the Jewish Magazine
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