Censorship is not the solution to combating anti-Semitism
Thank you very much for inviting me to speak to you today.
The organization that I work for, the Canadian Constitution Foundation, has a mandate to protect the constitutional freedoms of Canadians. One of the freedoms that we see under attack most frequently these days is freedom of expression. We have two active court challenge files right now on freedom of expression, and are contemplating taking on a third.
While we appreciate that anti-Semitism may be a growing problem in Canada, our concern is that there will be enormous pressure on this committee to attempt to address it by recommending the further stifling of speech. We think such a solution would not only run afoul of Canada’s constitution, but would be counterproductive for several reasons.
There are three main points I want to make during this presentation.
1. Hate Speech Laws Backfire
I think prosecuting so-called “hate speech” backfires. It has done far more to give free publicity to the likes of Ernst Zundel than it has done to make his views disappear from the public arena.
I first came across Zundel in the late 1970s when I went with a friend to some kind of “paranormal” fair in Toronto. There, in amidst the booths promoting magnetic pyramids under the bed, extrasensory perception and unidentified flying objects, was Ernst Zundel, trying to sell his book “Did Six Million Really Die?” They weren’t exactly going like hotcakes.
Zundel was a kook in amongst kooks. He was marginalized. He had no audience.
But in the early 1980s, someone laid a human rights complaint against him, and then the government prosecuted him under the Criminal Code. He had two very public trials, reported widely in all the newspapers, and suddenly he was famous. And other hitherto marginalized people who shared his views started coming forward to cash in on his fame, so that Holocaust denial—a phenomenon that had never been heard of by most people in the 1970s—was suddenly very much a part of the landscape.
The same thing happened when David Anehakew made his famous remarks in 2002. Most Canadians had never heard of him before, but they sure heard of him when he was prosecuted.
So this is a purely pragmatic reason why we should not prosecute mere speech. It simply gives wider circulation to the noxious opinions expressed.
2. Subsidize Anything and More Will Be Produced—Including Hurt Feelings
What we really need to do in this country is to revive the attitude that prevailed when I was a child: “Sticks and stones will break my bones but names will never hurt me.”
Like many of the witnesses appearing before this Committee, I am Jewish by birth. I am perhaps a bit different from most in that I rejected religion entirely in my late teens, so today I am an atheist.
But one of the other things that may set me apart is that my reactions toward anti-Semitic incidents seems to be different from that of my fellow Jews—or at least, if we believe the Supreme Court of Canada on this subject.
In a 1990 case called Canada (Human Rights Commission) v. Taylor1, the Supreme Court said: “…individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem…”.
The subject arose again in a 1996 case called Ross v. New Brunswick School District No. 152. The Supreme Court said that when Jewish children hear anti-Semitic remarks in a school, they are: “… likely to feel isolated and suffer a loss of self-esteem on the basis of their Judaism.”
Frankly, I don’t get this. If I hear someone making bigoted remarks about me, I don’t conclude that HE’S right, and there’s something wrong with ME. I conclude that there’s something wrong with HIM, because it’s irrational for him to condemn me without knowing anything about me except my ethnic origins.
So I don’t suffer any loss of self-esteem, or feeling of inferiority, from someone else’s ignorant and irrational behaviour. And I can’t imagine why anyone else would, either.
Over the past few decades, Canada has developed a culture of thin-skinned hypersensitivity. We reward people, quite literally, for being offended—or at least for saying they’re offended—by letting them make claims to so-called “human rights commissions”. Sometimes, they are awarded tens of thousands of dollars to “compensate” them. Some of them are not necessarily in it for the money, but rather for the attention. They want their 15 minutes of fame.
An economist friend of mine likes to quote this economic law: “Subsidize anything and more of it will be produced.” Reward people to produce corn, and more corn will be produced. Reward them to produce children, as we do with baby bonuses, and more children will be produced. Reward people to be offended—whether with money or with public outpourings of concern—and more “offendedness” will be produced.
Now, I’m not saying that anti-Semitic statements have no impact on me at all. On the contrary, hearing such statements makes me realize that there is a need for caution, because anyone who is so irrational may become violent. But violence is already illegal, whether the victim is Jewish or not. The Criminal Code already protects all of us from violence, so there is no need for specific legislation directed at protecting Jews in their persona as Jews. To the extent that laws can ever be effective in preventing violence, I’m already protected.
I spent 24 years as a divorce lawyer, and I frequently had clients say to me, “I want you to get me a restraining order. I’m afraid my spouse is going to kill me.” And I would say to them, “It’s already illegal for your spouse to kill you. Do you really think that if your spouse is willing to break the law against a very serious crime like murder, that he or she is going to be stopped by the fact that it’s also illegal to commit the minor crime of breaching a restraining order?”
The same reasoning applies here. It’s already illegal for people to vandalize my property, or to physically attack me. If they are willing to break those laws—which at root are the things we want to be protected against—do we really think they won’t also be willing to break laws against hating people on the basis of race? In my view, we might as well let the bigots identify themselves, so we can be forewarned in our dealings with them on a case-by-case basis.
I don’t want the law to shut them up, because I don’t want those people seething inwardly behind a mask of civility, secretly believing that all their prejudices have been corroborated because the “Jewish conspiracy” has coerced them into silence. I want them out in the open where I can identify them. Because depending on what each individual anti-Semite is like, my reaction will vary. If I think they are physically dangerous, I want to be able to identify them in case I see them approaching my home or workplace. If I think there is any possibility that they can be shamed out of their bigoted beliefs, I may want to engage them in open debate, or organize a boycott of them and their businesses. If I think they are simply ignorant people who have no personal experience of Jews and have adopted anti-Semitic beliefs because they’ve heard them expressed in their families, for instance, I may want to engage with them in a friendly way and demonstrate to them that what they’ve been taught is inaccurate.
I DO want to be protected from the sticks and stones—from the physical violence which would be illegal whether I were Jewish or not. But that’s where I draw the line: between speech and violent acts. Speech is permissible. Violent acts are not.
3. The State Is the Biggest Danger to Life, Liberty and Security of the Person
Many Jews have unfortunately drawn an erroneous lesson from the Holocaust. They draw the conclusion that anti-Semitism was what caused the deaths of millions of Jews. That’s not exactly correct.
Anti-Semitism was not the problem until the state got on board. In a state where there are laws against the genuine crimes of physical assault and vandalism and theft, and where those laws are enforced by the state against individual law-breakers, the damage that bigoted individuals can do is relatively minor. The superior might of the state that holds them in check.
But when the state itself becomes the arbiter of what people can say and what they can’t say, the potential for harm against its citizens is virtually unlimited. The state is the repository of the legal use of power. The state holds the legal power of coercion, of confiscation—literally, the power of life and death—and there is no other countervailing force strong enough to combat it.
So the last thing we want to do is to strengthen the state—to give it the legal power to dictate who can speak and who cannot speak, and what they can say. Because if the state ever falls into the wrong hands—which can happen in an election, as it did when Hitler was elected, when Robert Mugabe was elected in Zimbabwe—we don’t want it to have all the machinery already in place for outlawing speech.
We don’t want the citizens to accept that it’s a legitimate role of the government to put people in jail or fine them and confiscate their property for expressing political opinions. Because that’s when all hell breaks loose, and nobody any longer has the means to oppose it.
Thanks for allowing me this time to speak to you. I look forward to any questions you may have.
 Canada (Human Rights Commission) v. Taylor  3 S.C.R. 892
 Ross v. New Brunswick School District No. 15  1 S.C.R. 825
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