Crash-Test Dummies? Canada's
Experiments with Free Speech
Paul Trout
English
MSU-Bozeman
"Canada is dull only to the unseeing
eye."--Lansing Lamont
"You can learn a lot from a dummy. Buckle
up your seat belt."--TV Public Service ad
Introduction
The United States and Canada are far more alike than they
are different Even the characteristics that distinguish the two countries seem
as subtle and intangible as the fenceless border that separates them. Except,
perhaps, for their different approaches to free speech. Over the past five years
or so, Canada has shown itself to be far more willing than the United States to
restrict forms of speech that in this country are taken for granted, or at least
permitted. During this period, of course, the United States has undergone its
own free-speech crisis, as forces from both the right and the left have
attempted to restrict all manner of expression, from abortion counselling to
pornography and racist speech. But these efforts have been largely unsuccessful.
American courts, save in the area of sexually harassing speech that allegedly
creates a "hostile environment," have vigorously defended the
expansive boundaries of the First Amendment.
In Canada, on the other hand, recent efforts to restrict
various kinds of expression have been comparatively successful, in large part
because courts have determined that Canada's Charter of Rights and Freedoms
(1982) sanctions them. Although the Charter protects freedom of thought, belief,
opinion, and expression, it also states that these rights and freedoms are
subject "to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society" (Part I, 1). In other words,
freedom of expression can be "balanced" against other social ideals
such as civility, order, and equality; in Canada, these other ideals frequently
have been found to be more weighty. While recent efforts to restrict speech and
press have not yet precipitated a constitutional crisis in Canada (no political
party has even made censorship an issue), a growing number of Canadians are
upset that the Charter of Rights and Freedoms does not protect free expression
with the same generosity as does the First Amendment to the American
constitution. When even the general counsel of the Canadian Civil Liberties
Association can proudly characterize Canada as a "pleasantly authoritarian
country," it is no wonder that an increasing number of Canadian citizens
fear that Canada's paternalistic experiments with democracy's fundamental
freedom might eventually lead to an authoritarian state that is decidedly
unpleasant (in Jeffrey Toobin, The New Yorker, 3 October 1994, 71). Some
think it already has.
Americans should be concerned with the current state of
free speech in Canada because the same restrictions that have recently succeeded
there have been attempted here, and still have their advocates. It might be
prudent to review how and why Canada has restricted freedom of speech so we can
determine if we really want to follow it down the same path.
Experiment #1: Limiting
Information about Trials
Now that forty-six states allow television in the
courtroom, now that Court TV is piped into 14 million American homes, and now
that newspapers and networks--blithely snubbing pleas from the bench--pander to
the public's appetite for sensationalism by revealing illegally obtained
evidence and trading in rumors and downright errors, Americans may have trouble
conceiving of a country in which courts can dictate what newspapers and
television networks can and cannot say about trials, but that is what courts can
do in Canada. Judges have determined that the Charter's guarantee of a fair
trial trumps anybody's "right to know" (see Kirk Makin's extended
analysis of these differences in the Toronto Globe and Mail [G&M], 24
September 1994, D1-D3). Section 11 (d) of the charter of Rights and Freedoms is
not the only legal sanction for suspending freedom of the press in Canada.
Section 486 (1) of the Criminal Code also provides for the most sweeping
infringements of press freedom by allowing a judge to exclude the public from
any trial in the interest of public morals, the maintenance of order or the
proper administration of justice. It also provides for a mandatory publication
ban on evidence that is taken at a bail hearing or a preliminary hearing upon
the mere request of the accused or, with discretion, when the Crown requests it
The Criminal Code also allows for a publication ban of a complainant's identity
in cases of sexual assault, and of witnesses , identities if under 18. When
judges want, silence and secrecy prevail. To strengthen these provisions, the
federal government introduced a bill (which passed in the House of Commons in
October, 1994) which would ban publication of courtroom proceedings that occur
before a jury is chosen; in other words, under this bill, newspapers cannot
report what occurs in preliminary, pre-trial hearings.
To see what courts must do to restrict information, let's
look first at one of the most notorious murder cases in Canadian history--the
Bernardo/Homolka case. Paul Bernardo and Karla Homolka (once married, now
divorced) were arrested in 1993 for the sexual torture and murder of two
twelve-year-old girls; Bernardo has also been charged with manslaughter in the
death of Ms. Homolka's 15-year-old sister. Needless to say, the case generated
frenzied interest To make sure that the defenses of both Homolka (who came to
trial first) and Bernardo (to be tried in early 1995) could be heard by unbiased
juries, the judge ordered a "temporary, partial" ban on publication or
distribution of information about the "circumstances of the deaths of any
person referred to during the trial of the defendant" (G&M, 30
December 1993, A2). It was not clear if the ban applied outside Ontario. The ban
was announced to the news-media representatives who had been allowed by
the judge to attend the trial: the public had been excluded, as had the American
media. Since there was a lot one had to know to determine whether one was
breaching the publication ban, newspapers and television stations not at the
trial on the day the ban was explained played it safe and interpreted the
judge's words as a complete ban on the publication of evidence. As a result, the
media did not report either Ms. Homolka's plea to the charges or the details of
the joint submission on the facts of the case made to the court by Crown and
defense counsel. Under Canadian law, the media does not have the right to appeal
a judicial order prohibiting publication of courtroom proceedings; only the
Crown or the accused has aright to appeal a criminal order. (After a two-hour
trial, Karla Homolka was convicted of manslaughter and sentenced to twelve
years' imprisonment; her earliest release date is 1997.)
Many Canadians went to considerable lengths to get
information about the case. Some drove across the border to buy American
newspapers. But Canadian Customs agents (more about them in the next section)
permitted only one copy for each returning Canadian, confiscating any additional
copies. At one border crossing, Customs officials turned away 600 copies of the New
York Times. At another, Canadian authorities massed one morning and searched
every newspaper truck coming from the United States (Wall Street Journal
[WSJ], 8 December 1993, AI5). According to the Christian Science Monitor
(CSM), as of December 1993 sixty-one people had been detained in connection
with violating the judicial ban, and 187 papers had been seized (28 December
1993, 12). At first it was unclear whether Canadian libraries could even display
American papers carrying banned details. The Halifax City Regional Library, for
instance, was advised to remove an article from the Boston Globe; a judge later
permitted library-goers to read the controversial article, pointing out that it
would be impossible for libraries to monitor the content of each and every
periodical and newspaper they receive each day (G&M, 18 December
1993, A5; 30 December 1993, A2). But when computer bulletin boards at the
University of Toronto were used to exchange details about the killings, they
were shut down, and eighteen other Canadian universities followed suit (CSM,
28 December 1993, 12; Chronicle of Higher Education [CHE], 15 December
1993, A15). Some institutions have also removed messages about the case from
other Canadian-oriented bulletin boards, such as
<http://20c.culture.canada>. A more troubling development was the banning
of the April issue of the American magazine Wired because it contained an
essay explaining why the media ban was unenforceable and how information on the
case was readily available to Canadians. The article did not contain forbidden
details.
To protest the ban, Darren McKee, a Buffalo disk jockey,
shouted forbidden details across the border over a megaphone (CSM, 28
December 1993, 12). Also as a protest, a radio station in Detroit (WXYT) called
itself "Radio Free Windsor" and broadcast forbidden information to
Canada. But some American news agencies actually honored the ban, thus
making the ban international in scope. Some American television networks,
seeking to avoid a confrontation with Canadian authorities, provided advance
notice of news and entertainment shows referring to the case so that stations on
either side of the border could blank the material out. Fox Network, for
example, blocked from its border stations--including those in Montana--an
episode of A Current Affair that contained information about the case.
Because of the court ban on publishing details of the trial of Karla Homolka, a
non-fiction book published in November 1994 by Penguin Canada entitled Karla's
Web: A Cultural Investigation of the Mahaffy-French Murders had about 2
percent of the book blacked out--by the publisher (Penguin has assured those who
buy the book that it will send them the pages of censored material after the
Bernardo trial).
The Homolka case was certainly not the only one to provoke
sweeping publication bans. The judge in a trial in Martensville, Saskatchewan
involving charges of sexual assault of children at a daycare center ruled that
no information about the trial of the first three of nine accused adults could
be disseminated until all of the other cases were completed (G&M, 14
September 1993, A4). Furthermore, the media could not report, until further
order, any testimony that would identity and implicate any person other than the
nine adults who were charged. But testimony and factual information are not the
only kinds of information that can be suppressed. Canadian judges also have the
power to control fictional material as well, if that material has the
potential for adversely affecting the fairness of a trial. In 1992, the Ontario
Court prohibited the Canadian Broadcasting Company from televising its scheduled
docudrama about sexual abuse of boys in a Catholic orphanage (The Boys of
Saint Vincent) anywhere in Canada for the immediate future. In addition, it
prohibited anyone from disclosing in any medium anything about the
two-part series. (The Boys of Saint Vincent aired on American cable
channel TNT in February 1995.) What is even more remarkable is that the judge
also prohibited the media from reporting the fact of the ban itself, or
from revealing that it had been requested by four (of eight) Christian Brothers
facing trial on sexual assault charge in Ontario (G&M, 8 December
1992, editorial). At the time, a CBC executive said, "it's hard fathoming
that all this is happening in a country like Canada." You are reading about
this now only because a higher court overturned the ban, although it con firmed
the ban on broadcasting the movie anywhere in Ontario and in western Quebec
until after the trial. This ban did not prevent the National Film Board from
releasing the video version throughout the country a few days after the
court order (G&M, 8 December 1992).Two years later (December 1994),
the Supreme Court of Canada ruled (6-3) that the ban was too broad; it also set
guidelines for judges deciding whether to impose publicity bans on trials.
In 1991, in Newfoundland, a non-fiction, eye-witness
account of child abuse in foster homes and the Mount Cashel Orphanage--Suffer
the Children--was prevented from being published to protect the chances of
79-year-old Mary Dinn of getting a fair trial on charges of assaulting the
author of the book and four other boys at a foster home nearly 30 years ago. The
author said that the provincial government is guilty of censorship. My right to
freedom of expression has been violated to the point where the government can
pretty well do as it wants. It's pretty scary. How much right does the
government have to control what is published?" (G&M, 24 April
1992). The right answer is, "all the right in Canada." This was amply
demonstrated when a royal commission report into the allegations of abuse at
Mount Cashel was not banned. "The irony here is beyond belief,"
said the publisher of the Dereck O'Brien's book. "This has gone to the
point now where this is bizarre."
In a similar case, the Alberta Supreme Court upheld (1985)
an injunction preventing a theater company from staging a play entitled Ilsa,
Queen of the Nazi Love Camp, about a high-school teacher named Jim Keegstra
who promotes anti-Semitism in the classroom; the court feared it would taint the
trial of James Keegstra for spreading hate-propaganda. Not content with this
restriction, Keegstra submitted a motion to prevent production of the play permanently,
contending that the play was evil and promoted hatred (G&M, 24
February 1992; 30 April 1992).
Court-ordered publication bans have become so commonplace
and sweeping that sometimes the circumstances that occasion them are made
obscure by the ban itself. In August, 1993, all that newspapers could report was
that a British Columbia court banned publication of any details about a case
before it Whether the case is criminal or civil could not be made public, nor
could the explanation for the ban be reported (G&M, 15 September
1994, A7). In another case (?) newspapers could only report that an unnamed B.C.
Supreme Court judge authorized the release of information that an injunction was
granted by the B.C. Supreme Court and that proceedings were to be held in camera
and the file sealed (G&M, 20 September 1993, A3). Nothing could be
revealed about the location, the people, or the organizations involved, nor the
issues in the dispute nor the reasons for the court-ordered silence. In still
another case (??), a reporter tried to confirm whether a publication ban
existed, but found it impossible to do so thanks to the ban. A Crown
attorney advised that since he thought the ban did not have a termination date,
the paper should not publish anything. According to the Campbell River Courier-Islander,
"court registry officials felt constrained by the ban not even to explain
it" (G&M, 25 September 1993, A4). In other words, in some cases
the media are not allowed to report which case in which place on which subject
they are not allowed to report. Columnist Rick Salutin referred to the
"mini-epidemic" of publication bans as "banomania" (G&M,
10 December 1993, A13).
But protecting the right to a fair trial is not the
only reason courts in Canada ban publication of trial information. When two
fabulously wealthy brothers sued each other in 1993, the court banned the
publication of the contents of any statements filed in court on the grounds that
the disclosure of financial information would help competitors and irreparably
harm the litigants. More cynical observers suggested, however, that the wealthy
family simply did not want its dirty secrets laundered in public (G&M,
25 August 1993, A4). Avoiding embarrassment or public scrutiny is grounds enough
for curtailing the press in Canada. When several suicides occurred on the Sandy
Bay Indian Reserve, the chief and tribal council banned all media, including
Native-Canadian journalists. "There is no freedom of the press in Indian
country as long as the Indian Act exists," one native journalist observed (G&M,
25 June 1993, A3).
Some publication bans have nothing to do with trials and
are imposed without urgent justification. In Quebec, a preliminary ten-day court
injunction prevented any media organization from broadcasting or publishing a
certain "report about the constitutional accord." Since the injunction
applied only in Quebec, Canadians from New Brunswick to British Columbia knew
the mysterious contents of the report (G&M, 17 September 1992). In
1991 Hydro Quebec and thirteen large industrial fInns obtained injunctions to
stop publication of certain secret power contracts. One of these contracts,
leaked to the press, showed that Norsk Hydro Canada Inc. was buying electricity
from Hydro at a price considerably below the cost of production. While Quebec
media outlets were prevented from disseminating this information, American TV
stations near the border provided Quebeckers with all the details. As an
editorial in the Globe and Mail put it, "it's no surprise that Hydro
Quebec wanted to keep its doings secret, but why in the world were the courts
willing to help them?" (17 September 1992). In an Ontario court privacy
considerations trumped other social interests and principles enshrined in the
Charter of Rights and Freedoms when a judge ordered the CBC to stop distributing
or televising anywhere in the country the documentary The Trouble with Evan
until it was edited to conceal the identity of the unhappy family it portrays.
The film was made by means of video cameras installed in Evan's home; they
recorded Evan's parents verbally abusing him. The injunction was obtained by the
Children's Aid Society, which argued that Ontario's Child and Family Services
Act prohibits identifying those involved in proceedings under the act.
In the United States, any attempt by a judge to gag the
press is almost surely doomed to failure. In 1976 (appropriately), the U. S.
Supreme Court decided that criminal defendants trying to stop the publication of
potentially prejudicial pretrial publicity will face an extremely high burden of
proof to succeed. The Court held that prior restraint on the freedom of the
press could only be justified in limited circumstances and only if the
prohibited publicity contributed a clear and present danger to the right to a
fair trial. Because of these difficult requirements, it is now assumed that
almost all "gag orders" are effectively unconstitutional. In 1980 the
U. S. Supreme Court once again firmly entrenched freedom of the press when it
held that open judicial proceedings were implicit in the guarantee of the
freedom of the press and were ultimately designed to ensure open communication
about government Recently, when the defense lawyer for Erik and Lyle Menendez
complained to a judge that the airing of a TV movie entitled Honor Thy Father
and Mother: The True Story of the Menendez Murders would taint the trial,
the judge would not even order Fox Network to add a disclaimer or take out the
words "true" and "murder" from the title. In Canada, of
course, any defendant who imagines that a work of fiction or non-fiction--a
book, a magazine, a play, a film, a television program--may hurt his or her
chances for a fair trial could probably get an injunction to suppress it.
Many Canadians much prefer court-ordered bans on
newspapers, broadcast media, and writers to the appalling media spectacles
surrounding sensational "trials" in America. They do not see such bans
as serious threats to free speech since most bans are limited in time. Some
believe that such bans do not even raise freedom-of-speech or
freedom-of-the-press issues. "Prior restraint can and should be used by the
courts to keep secret information whose publication could...undermine an
accused's right to a fair trial" (editorial, G&M, 17 September
1992). "If there is an argument," writes Robert Sheppard, a celebrated
Canadian journalist, "it is whether the ban is justified to ensure a fair
trial, a decision I would rather leave to a judge than a city editor. The media,
by nature of being in the publicity business, are not equipped to gauge the
effect of their own handiwork on 12 prospective jurors" (G&M, 16
December 1993, A19). There is little question that as information technologies
proliferate and improve, courts will be driven to impose ever more sweeping and
draconian publication bans in an effort to ensure a pool of impartial jurors.
Some Canadians are not at all pleased with this prospect.
A number of newspapers have legally opposed and editorialized against
court-ordered restrictions. One editor for the Globe and Mail argued that
"no serious evidence" has ever been produced to back up the claim that
publicizing information even about sensational murder cases "threatened
anyone's right to a fair trial" (1 December 1993, A22). Another editor for
the same paper argued that
today's
jurors are intelligent people, able to decide upon the evidence. All that
publication bans succeed in doing is evincing a low regard...for our ability to
comprehend, for our desire to be informed, for the very legitimacy of our
involvement in the administration of justice. If people are such crude stooges
of the media as the judge implies, why on earth do we let them vote, let alone
assume such awful responsibilities as to weigh a man's guilt or innocence? (8
July 1993, A16)
Jim Coyle of the Ottawa Citizen put it even more
bluntly when he said that court-ordered bans are based on the assumption that
the public "is a pack of morons who would be irretrievably tainted should
they know certain facts" (Time, 13 December 1993, 59). Citizens are
very aware of the slight implied in all publication bans. Blacking out
television signals from the United States and confiscating newspapers with
"offending" stories have infuriated a number of them, generating, as
an American writer put it, "disdain for a system that forces such odious,
anti-democratic procedures" (WSJ, 8 December 1993, A15). These
arguments may have influenced the thinking of the Supreme Court of Canada. In
its recent ruling against the banning of The Boys of St. Vincent, the Court said
that jurors are capable of following instructions from trial judges and ignoring
information not presented to them in the course of the criminal
proceedings" (in G&M, 10 December 1994, D6).
There are other dangers to courts operating without public
scrutiny. Publication bans could enable legal authorities to escape being called
to account for dubious decisions and outright miscarriages of justice (G&M,
4 February 1994). As media lawyer Patricia Jackson said in reference to the
Homolka trial, "the public needs to know how the system has dealt with
horrifying cases. To not do so is a serious constitutional breach, and
undermines the integrity of the judicial system" (G&M, 2
February 1994, A3). It would be highly suspicious, for instance, if courts were
to impose information bans in trials about public corruption, corporate
shenanigans, tax scandals, government agencies, or the personal depravity of
politicians or bureaucrats. Justice must not only be done, it must be seen to be
done. Thus, many argue, it is a bad idea for judges anywhere to have the power
to pick and choose which facts can be the subject of commentary and which
cannot. Courts should be subject to the same public scrutiny and judgment
legislatures are, and maybe more. "The power of incarceration held by the
courts is probably the most awesome power granted anywhere in our society, and
for that reason the courts should never be left to operate out of public view.
It is a basic matter of democratic control" (Rick Salutin, G&M,
10 December 1993).
Experiment #2: Apprehending
the Obscene at the Border
Although American free-speech absolutists seem to be
always in a dither about "censorship," American courts--the Meese
Commission notwithstanding--have essentially nullified anti-obscenity and
anti-pornography legislation. Just about anything goes: Mapplethorpe's
photographs of anal fisting, Hustler's "Beaver Hunt," Karen Finley's
vegansexcapades, Ron Anthey's sado-masochistic "Four Scenes in a Harsh
Life," and the Sisters of Charity of the Incarnate Word's exhibition
entitled "Spiritual, Sensual, Sexual"--all are safe from governmental
repression south of the Forty-ninth Parallel. In Canada, the situation is very,
very different.
In Canada, questions of morality fall under the sole
purview of the federal government and are dealt with by the obscenity provisions
of the Criminal Code. Section 163 of the Code bans any "publication,
distribution or circulation [of] any obscene written matter, picture, model,
phonograph record or other thing whatever":
For
purposes of this Act, any publication a dominant characteristic of which is the
undue exploitation of sex, or of sex and anyone or more of the following
subjects, name crime, horror, cruelty and violence, shall be deemed obscene.
It is one of the jobs of Canada Customs--through its
Prohibited Importations Directorate--to apprehend at the border any material
that is" or may be, obscene. That duty was given to Customs in 1840"
even before Confederation, when Customs was given the power to block entry of
material it deemed immoral, indecent, seditious or treasonous. Customs has
always performed this duty assiduously, apprehending, over many decades, a
number of corrupting works, such as Zola's Nana, works by Guy de
Maupassant and Balzac, novels by James Joyce, William Faulkner, D.H. Lawrence,
and Dashiell Hammett, pulp magazines, books advocating birth control, socialism,
or communism, and Playboy and nudist magazines.
The power of Customs has not changed much over the past
150 years. In 1962, the finance minister took briefly Customs out of the
censorship business, telling officers to stop only those books that had already
been judged obscene by the courts. But with the increase in heterosexual erotica
that followed the sexual revolution of the 1960s, Customs was back barring the
door by 1967. The only other major challenge to Customs' censorship power (until
1994) came in 1985, when the Supreme Court ruled that the wording in the Customs
Tariff barring "obscene and immoral" material was too broad to
constitute a reasonable limitation of freedom of expression as defined by the
Charter. The government rushed through an amendment to plug the hole and Customs
kept its powers. As one law professor put it, "the history of book
censorship in this country is largely the history of Customs censorship. There
have been a few hundred court cases, but Customs has banned thousands of titles.
And we've never had a serious public debate about it" (G&M, 8
October 1994, C2).
To apprehend "obscenity" at the border, members
of the Prohibited Importations Directorate (a name that has a nice Orwellian
ring to it) must believe that it depicts one or more of the acts listed in
departmental Memorandum D9-1-1. This memorandum (introduced when
government-sponsored anti-pornography legislation failed) sets out in detail
what sort of material may not enter Canada. Forbidden is material that depicts
sex with violence, sex with children, incest, bestiality, necrophilia, hate
propaganda, anal penetration, bondage, or degradation (unless presented in a
"rational and unsensational manner"). (Neither bondage or anal sex is
illegal in Canada.) It also asserts that representations of "pregnant
and/or lactating women" in a sexual context is forbidden because it "debase[s]
motherhood."
If the material, in the opinion of these "commodities
specialists," falls into any of these categories, it can be arbitrarily
impounded for an indefinite period while it is shipped to Ottawa where
bureaucrats determine if the material is obscene or not. The person to whom the
material was addressed is sent Canada Customs Form K27, a "Notice of
Detention/Determination." Customs officials, who have no training or
expertise in obscenity law or in issues of freedom of expression (they are the
same ones who inspect fruit and vegetables), are witness, counsel, judge, and
jury, all in one. No trial, no proof of "undue exploitation," and
sometimes no notice to the addressee. On more than one occasion all the
recipient received was a box of shredded paper. Should the bookseller, let's
say, accept the obscenity ruling, the material is simply incinerated. The
recipient can appeal, but this could take anywhere from two weeks to more than a
year, rendering interdicted periodicals unsalable. There is also the problem of
trying to establish the innocence of material one has not seen.
The wording of D9-1-1 has led to Customs officials
interdicting a disproportionate amount of gay and lesbian material. An estimated
75 percent of shipments to gay bookstores in Canada have been opened, delayed,
lost, forgotten, damaged, pillaged or sent back. Inland Books, a Connecticut
company that is the leading exporter of gay and lesbian books to Canada, has had
to revamp its shipping procedures because Customs had detained so many of its
books (G&M, 21 October 1993, A22). In May and June of 1993, three
complete shipments from Inland Books--over one ton of books and
periodicals--were seized; out of 300 titles, only 20 were eventually found
deserving of incineration (G&M, 12 February 1994, D5). The owner of
Inland said that "Canada is the only country we deal with that will
actually remove books from a shipment and take them away."
Customs seizures of gay/lesbian material has become so
frequent that one U. S. book distributor refuses to send any more books to
Canada. In a letter to Glad Day Bookshop, the sales manager for Golden-Lee Book
Distributors Inc., of Avon, Massachusetts, wrote: "I wish we could be more
supportive in your struggle against the Canadian laws banning erotic
material.... [However] every shipment we send to you, whether containing
questionable material or not, is detained for months at a time. When shipments
are returned to us they are always missing books. Further, the books returned to
us are so damaged that we have to write them off as unsalable" (G&M,
8 October 1994, C1).
Some of the gay/lesbian works Customs has recently nabbed
include: Karen Barbers Afterglow, Pat Claifia's Melting Pot, Gael
Baudino's Shroud of Silence, The Best Plays of Albert Innaurato,
Oscar Wilde's Teleny and Collected Letters, Jean Genet's Querelle,
Gelsey Kirkland's Dancing on My Grave, Anne Cameron's Dzelarhons,
Kathy Ackers Empire of the Senseless, Dennis Cooper's Frisk and Wrong,
Tee Corinne's Lovers, Black Men/White Men, Marquis de Sade's The 120
Days, John Rechy's City of Night, the American lesbian comic book Hothead
Poison, Stephen Beachy's The Whistling Song, the dense scientific
tome entitled Living with the AIDS Virus: A Manual for Long-Term Survival,
a foreign-travel guide for gays, Annie Sprinkle's Sluts and Goddesses
videotape, and any American edition of the novels of British Columbia
author Jane Rule (customs intercepted the video of the widely shown theatrical
film version of her Desert Hearts, which had a general and legal release
in Canada). In once instance, every reference in Blueboy's safe-sex guide
to "anal" and "fucking" had been meticulously blackened out
by Customs (reported by Robert Atkins in Village Voice, 18 November
1993).
The glaring irony about all this is that these titles can
be found in book stores and public libraries. In other words, they are legal inside
the country but not at the border. And not even always at the
border. Larger bookstores can import without hindrance the same material that
gay/lesbian bookstores cannot. When Customs banned a book co-edited by a
Canadian (Bizarre Dreams, an anthology of gay male erotica co-edited by
Caro Soles), it said that the nationality of the editor was irrelevant--the
publisher was American. Had the book been published domestically, it could have
been sold and distributed without a problem. Indeed, it was being sold in larger
bookstores, whose shipments of the book were unmolested. Alison Gordon,
President of Canadian Centre/International PEN, wrote:
Customs
officials are ignoring identical or similar books and periodicals imported into
the country to larger outlets and targeting small or minority publishers and
bookstores. The result has been outright harassment, especially for gay and
lesbian booksellers, and the suppression of minority viewpoints, both of which
are totally incongruous in a democratic society. (G&M, 20 October
1993, A24)
Although Customs denies targeting gay and lesbian
bookstores, Linda Murphy, director of the Prohibited Importation Directorate,
did say during a recent trial that bookstores that have attempted to import
prohibited material are subject to "heightened scrutiny." When asked
during atrial if she could name one bookstore other than a gay and lesbian
bookstore that had been subject to heightened scrutiny, Murphy said she could
not (G&M, 9 November 1994, A12).
The number and variety of works intercepted by Customs in
just the last few years is staggering. In one week more than 130 books were
detained for inspection. Within the last six years one bookstore owner received
almost 500 seizure notices (G&M, 12 February 1994, D5). Not all the
apprehended titles are gay/lesbian erotica. Salman Rushdie's The Satanic
Verses was forbade importation in 1989 on the grounds that the book could be
"hate literature," a forbidden commodity in Canada. And sometimes the
fruit-and-vegetable inspectors at the border simply misconstrue the material
they are apprehending, as with: Carol Adams's The Sexual Politics of Meat,
Charles Baudelaire's Les Fleurs du Mal, Charles Bukowski's The Most
Beautiful Woman in Town, Dorothy Allison's Trash (it was confused
with a collection of gay male fantasies), Margueritte Duras's The Man in the
Corridor, The Devil's Advocate: An Ambrose Bierce Reader, and works
by Kathy Archer, Arthur Rimbaud, Andrea Lorde, and bell hooks (her Black
Looks: Race and Representation was apparently apprehended as possible
"hate literature"). Customs has also tampered with shipments to
university bookstores (McMaster, U. of Manitoba, U. of Victoria, U. of Waterloo,
U. of Guelph, Trent University, York University, U. of Alberta, Simon Fraser
University, St. Mary's University, the U. of Windsor, etc.).
No nit is too small to pick for the border bureaucrats.
Customs grabbed a shipment of Italian zombie flicks sent to a Ph.D. student in
Ottawa writing a doctoral dissertation on horror films; it also shredded an
unpublished novel in manuscript about the mind of the pedophile which was being
returned to the author, a retired psychologist, by his U.S. literary agent (the
author was told that while it was legal for him to publish the book in Canada,
he could not take it out of the country and bring it back [G&M, 21
July 1994, A12]); and it detained Changing Men, a magazine for men
interested in the feminist movement (G&M, 21 July 1993, A8). American
author David Leavitt's A Place I've Never Been was also seized, although
the book was readily available in larger bookstores in Canada (because it has
not been found obscene by any court of law) and the author himself was permitted
to read aloud from his subversive work at Toronto's International Festival of
Authors. "Why was not Mr. Leavitt himself confiscated at the border,"
asked one outraged writer (G&M, 21 October 1993, A22). As Canadian
columnist Robert Hough has put it, "Canada Customs has nurtured a whole new
literary esthetic in this country. Compliant and within guidelines
are the descriptors now attached to Canada's finest literature. Phrases like extreme
and undue preoccupation with...are criticisms of the highest order"
(G&M, 12 February 1994, D5).
Although Customs is an extraordinary labyrinth of
quiddities and double standards, one fact breaks through the Kafkaesque
obscurity of its operations: Customs sometimes uses its censoring power to
intimidate its critics. When the owner of a bookstore in Montreal sold
transcripts of a media-gagged judicial inquiry, books sent to the store from the
States began to be seized. When Toronto police removed the "obscene"
paintings of a local artist from a restaurant, nearby Pages Bookstore
constructed a window display denouncing the ban. One month later, Pages suffered
its first book seizure ever. Material seized included a magazine called Piercing
Fans International Quarterly, an academic text entitled Erotic Power,
and several packages of Betty-Page trading cards (G&M, 12 February
1994, D5).
These and other seizures seem designed to communicate to
outspoken critics of Customs one simple message: "We're watching you. We
see what you're doing." The message is being heard. In 1992, Oxford
University Press dropped from its Canadian list a book entitled Gay Ideas,
a scholarly work written by a professor at the University of Illinois. Oxford
feared that the work, which contained some of Robert Mapplethorpe's sado-masochistic
photographs, would anger Customs. As Robert Hough wrote, "Customs flexed
its muscles without ever having to knife open a cardboard shipping crate" (G&M,
12 February 1994, D5). An editorial in the same newspaper commented:
"Indeed, just the threat of trouble with Customs is probably enough to stop
importers from even trying to bring in certain sorts of material. We have no way
of knowing" (21 October 1993, A22).
Despite these punitive campaigns of intimidation, some
Canadians are doing what they can to resist the power of Customs to seize
whatever it deems "obscene." The resistance began in earnest in 1985,
when Customs refused to allow a shipment of The Joys of Gay Sex into the
country because it discussed and depicted anal sex. The Joys of Gay Sex
had been available in Canada for years. The owner of Glad Day Book Store sued
Canada Customs for the right to sell the book, and won. But although the court
cleared the book for importation into Canada, it refused to rule on the
constitutionality of Memorandum D9-1-1 and on using Customs as a censor.
Bureaucrats simply rewrote the memo to skirt the court's ruling. After the
decision, Customs started to open and detain every title shipped to Glad Day
from other countries. Books merely detained for examination were often held for
months, with no notice. In the Spring of 1989, after receiving a box filled with
shredded paper, the owner again sued the Canadian government, this time for
harassment and destruction of property. He won, but only received $2,200 for
damages.
The first serious opposition to Canada Custom's censorship
powers began in 1990, when the Little Sisters Bookstore filed a lawsuit in the
British Columbia Supreme Court challenging as unconstitutional the provisions of
the Customs act that allow Canada Customs to detain and ban books, to act, in
other words, as a censor (see Chris Dafoe's "Little Sister v. Big
Brother," G&M, 8 October 1994, C1-2). The case snaked its way
through three government-requested postponements over the past four and a half
years, a tactic to drive up costs and force Little Sister to drop the suit. The
case finally came to trial in mid-October 1994, and is nearing its end as this
is being written.
Writers and editors have also added their voices to the
growing protest against Customs' censorship. An editorial in The Globe and
Mail in 1992 observed that
the
continuing farce played out each week at our borders, in which various Customs
officials solemnly review, classify, detain, and sometimes destroy material that
is legally available in bookstores, convenience stores and video outlets across
Canada is a strong argument that we should not give Canada Customs the job of
enforcing an obscenity law, should we wish to have one. (30 June 1992)
Another editorial in the same paper sharply declared:
"It is an offense to a free people that it should be held prisoner within
its borders, allowed only such reading materials as its government jailers will
permit to enter; an offense, and an international embarrassment" (G&M,
21 October 1993). Indeed, Human Rights Watch, the largest human-rights
organization in the United States, has officially condemned the Canadian
government for its censorship, which has resulted--according to Robert Hough in
a piece entitled "Degrading Customs"--in Canada being lumped with
other such "free-speech enthusiasts as North Korea, Burma, Turkey, Iran and
China" (G&M, 12 February 1994, D1).
The Book and Periodical Council's Freedom of Expression
Committee, the International Association of Poets, Playwrights, Editors,
Essayists, and Novelists (PEN), the Canadian Committee Against Customs
Censorship, Human Rights Watch, and other national and international
organizations have called on the government of Canada to dismantle the
prohibited importations unit of Canada Customs, which since 1986 has seized
5,000 book and periodical titles (G&M, 15 September 1993, A14). As an
editor for the Toronto Globe and Mail put it, "let the shadowy
clutch of bureaucrats that now presumes to make [obscenity] judgments for [the
Canadian people] find more useful work" (30 June 1992).
Experiment #3: Preventing
Pornography
The restriction of objectionable sexual material is not
limited to what Canada Customs apprehends at the border. Indeed, within
Canada there is a powerful movement to criminalize and suppress all kinds of
"obscene" and "pornographic" material. The groups behind
this movement are often as assiduous as Customs officials in ferreting out and
moving against offensive books, films, and videos. Not surprisingly, they are
abetted in this effort by a paternalistic government and court system only too
willing to seize or suppress any objectionable material that Customs misses. The
players and justifications have changed, perhaps, but the repressive results are
often the same.
The Charter of Rights and Freedoms sanctions
discriminatory laws, programs and activities that have as their object "the
amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability." The Canadian
Constitution effectively established what we might call an Equal Rights
Amendment, and certainly legitimized what might be called the feminist agenda.
As a result, Canada has a cabinet ministry on the Status of Women, a separate,
thirty-member National Advisory Council on the Status of Women, with an annual
budget of $2.4 million, and every province has a Women's Directorate, a
government agency devoted to implementing the feminist agenda. In Ontario, the
Women's Directorate has a staff of 51 and a budget of $8 million (Chronicles,
November 1990, 37). Moreover, special government funds at both the federal and
provincial levels have been established to subsidize women bringing affirmative
action and comparable-worth suits so they can win their cases. Not a penny is
offered by government to help people defend themselves in these cases. Such
developments have provoked one concerned Canadian, Betty Steele author of The
Feminist Takeover (1990), to complain that Canadian feminists have now
progressed far beyond their American counterparts and are in the process of
instituting a full-fledged "matriarchy" in Canada.
Encouraged by these developments, feminists groups moved
against sexual material they believed interfered with the guaranteed
"equality" of women. These groups were motivated by the
anti-pornography theory of Catharine MacKinnon and Andrea Dworkin. MacKinnon and
Dworkin believe that pornography is a major source and cause of women's
oppression; it's inherently coercive and degrading. They argue that boys and men
are molded by, and act upon, the ideas they see in pornography. As a result,
pornography can be said to be a form of "group libel" or "hate
propaganda" that incites and sanctions all kinds of oppressive and hostile
acts and attitudes baneful to women, from sexual harassment to violence and
rape. In short, pornography is not just an insult to women but actually
discriminates against them.
Although this approach to restricting pornography has not
(yet) prevailed in the United States, it has in Canada, thanks in large part to
Catharine MacKinnon ("after whom the Butler decision ought to be
named"--Margaret Wente). In Regina v. Butler (1992), the Supreme
Court of Canada overhauled obscenity law to reflect MacKinnon approach to
restricting pornography (see MacKinnon's Only Words for her observations
on the decision, 99-100). The Court tossed out the old test of obscenity, which
invoked the impossibly vague and arbitrary notion of "community
standards" of morality, and replaced it with a "harm-based" test.
From now on, material would be judged obscene if it portrayed sexual violence,
if it depicted sex with children or with adults who posed as children (under
eighteen), or if it depicted degrading, humiliating, or subordinating acts that
might be harmful to women. Harm was defined as "predispos[ing] persons to
act in an anti-social manner, as, for example, the physical or mental
mistreatment of women by men, or, what is perhaps debatable, the reverse."
The Court wrote: "If true equality between male and female persons is to be
achieved, we cannot ignore the threat to equality resulting from exposure to
evidence of certain types of violent and degrading material.... Materials
portraying women as a class of objects for sexual exploitation and abuse have a
negative impact on the individual's sense of self-worth and acceptance."
It should come as no surprise that, thanks Butler,
the restriction of "pornography" has become more pronounced,
pervasive, and successful. Encouraged by the decision, two women argued before
the Ontario Human Rights Commission that the presence of "girlie"
magazines such as Hustler, Playboy and Penthouse at a corner
convenience made them "uncomfortable" when they shopped, and that they
were thus "sexually harassed" by a "hostile environment" (G&M,
18 February 1993, A10). The Commission agreed, even though the magazines
in questions are not illegal under the Criminal Code. Although a
subsequent Board of Inquiry dismissed the complaint (26 October 1993), an editor
at the Globe and Mail pointed out that "the Ontario Human Rights
Code does not mention shutting down to the local Mac's Milk for stocking Playboy."
"For the Commission even to hear such a case is a remarkable interpretation
of its mandate" (13 July 1993, A9).
In another case, the Ontario Ministry of Revenue pulled
down a 22-foot wire sculpture of a woman pregnant with a male fetus on display
in an Ontario government office after a woman demanded that she be able to walk
through "a workplace free of harassment" (G&M, 21 September
1993, A12). In another instance, a Vancouver Sun staff writer was accused
of creating a "hostile environment" by another employee when he
displayed in his work area an advertisement for a film called Basic Instinct
which showed Sharon Stone about to run her fingernails over the back of Michael
Douglas (G&M, 30 September 1992). (Such looniness neither stops nor
starts at the Forty-ninth Parallel. The United States, where free speech, by and
large, is more vigorously contested but more jealously guarded, seems ahead of
Canada in using the concept of "sexual harassment" to suppress sexual
imagery and other forms of protected speech and expression [see my "Second
Thoughts on Sexual Harassment," The Montana Professor 4.3 (Spring
1994): 5-18, and Mark Schapiro's "The Fine Art of Sexual Harassment," Harper's
Magazine, July 1994, 62-63].)
A recent report published by the Canadian Department of
Justice entitled "Gender Equality in the Canadian Justice System"
reflects how much the MacKinnonite mindset, endorsed in the Butler
decision, has permeated feminist thinking in Canada. The report asserted that
"all women are subjected, daily, to non-specific modes of aggression in
almost every form of commercial and other popular forms of expression. The
message that beer and automobile ads send out, according to the report, "is
that it is attractive, desireable, sexy and right to possess women, who are
almost invariably portrayed in conjunction with other glittery objects, or in
some subordinate or diminished pose." As far as this report is concerned,
looking at a Pepsi ad featuring Paula Abdul and butchering a woman are just two
instances of the same phenomenon. "The state of mind of the
aggressor," the report stated, "is only a question of degree" (in
G&M, 6 July 1993, A4; 13 July 1993, A9). Contending that the use of
sexuality to sell things is a "profound injustice," the report, not
surprisingly, asked for tougher anti-pornography laws, stronger human-rights
laws, consumer protection legislation that criminalizes exploitative ads or
anything else that sexually "objectifies" women, and for more
censorship by Canadian Customs at the border (ibid.; for the background to
this way of thinking, see "A presumption of [collective male] guilt"
by Ray Conlogue in the Globe and Mail, 16 October 1993, D5).
As the meanings of "discrimination" and
"harassment" expand, so does the questionable quasi-judicial power of
multiplying commissions expected to police these "crimes." If someone
can press a human-rights complaint on the basis of a rack in a corner store,
practically any public display is fair game. Art galleries, museums, bookstores,
theaters--they all traffic in material that could make somebody feel unequal.
Groups that cannot win their cases in courts, where some old judges "still
don't get it," resort to commissions and other bureaucratic tribunals where
looser rules of evidence and argument and fewer avenues of appeal enable them to
suppress magazines, books, videos, and even ads that most men and women dismiss
as harmless.
When the Butler decision was handed down, many
feminists cheered; after all, it was the first time anywhere in the world that a
Supreme Court accepted the argument that pornography can be regulated because of
the harm it poses to women. But today, many early supporters are reconsidering.
Karen Busby, a law professor in Manitoba who worked on the LEAF brief with
Catharine MacKinnon, recently told a writer for The New Yorker that
"I was very happy when Butler came out. I thought that it was a
significant advance in the law. But I'm disappointed in the failure of the
police and state agents to understand what Butler really means" (in Toobin,
October 1994, 71). Even Andrea Dworkin has doubts: "I don't think Butler
is going to be useful in dealing with the pornography industry. It will be used
to create a formula for a kind of pornography that the police will accept. I
don't think it's going to help deal with the rights of women" (in Toobin,
78). The reason for this about-face is that in the real world the new law has
produced all sorts of unintended consequences, including providing Customs with
a new rationale for censoring material it deems "degrading,"
"humiliating," or "subordinating," terms which have proved
as operationally vague and subjective as "immoral" or "community
standard" were.
The Ontario Film Review Board, which has to approve every
film or video that is for commercial display, sale, or rent in the province
(there is no longer an equivalent in the United States), has interpreted these
words to mean that certain sexual acts--for instance, "double
penetration" or "ejaculation on the face of the woman"--cannot be
shown. Apparently it is acceptable to show a man ejaculating on a woman's neck
or hair. In another case a judge ruled that the spanking in a video went beyond
playfulness when it reddened the buttocks, thus violating community standards
under Butler (Toobin, 77). But this decision "smacks" of racism
by implying that a dark-skinned woman, an African-Canadian perhaps, could be hit
harder. Recently, the Saskatchewan Film Classification Board banned Exit to
Eden, an R-rated mainstream Hollywood erotic comedy about bondage, dominance
and sexual violence starring Dan Aykroyd and Rosie O'Donnell, because it
violated Butler and was "sexually explicit and exploitative"; an
appeal panel reversed the decision days later (G&M, 12 October 1994,
A11; 14 October, A14).
It is still unclear whether it was despite Butler
or because of it that a judge permitted the importation and sale of
Madonna's compendium of explicit sado-masochistic photos entitled Sex.
The book contained, for example, a photo showing Madonna's hands bound with
rope, a bare-breasted woman holding Madonna's arms straight in the air while
another woman presses a switchblade to Madonna's crotch. Sex was
determined not to be obscene because under Butler the term "explicit
sex" is interpreted to mean penetration. The attorney who represented the
publisher of Sex simply argued that "since there was no penetration,
we could say it was just violence, no sex. Violence alone is o.k. under Butler"
(in Toobin, 76).
Nadine Strossen, Executive Director of the American Civil
Liberties Union and author of Defending Pornography: Free Speech, Sex, and
the Fight for Women's Rights (1994), believes that "censorship is no
different after Butler from what it was before. It was anti-woman, anti-gay,
anti-freedom before, and it's that way now" (in Toobin, 78). But others
think that restrictions have gotten worse after Butler. A commentator at Village
Voice says that "ever since the Canadian Supreme Court's
MacKinnon-esque Butler decision last year outlawed depictions of violent
and degrading sex (but left their definitions dangerously open to
interpretation), the customs jackboot has stomped down hard on feminist and
queer material." One case effectively illustrates how MacKinnon's
"feminist" approach to restricting pornography can be
"misinterpreted." In Ontario, Glad Day Book Shop was charged with
selling obscene material after police removed a copy of Bad Attitude, a
lesbian erotic magazine, which contained a story entitled "Wunna My
Fantasies" about sado-masochistic sex involving, among other things, clamps
being applied to nipples. The attorney for Glad Day explained to the judge that
since the whole point of Butler was to protect women from men, and since
only women were in the story, it couldn't be obscene. The defense even trundled
in a Ph.D. on lesbian studies who contrasted the "patriarchal" and
"oppressive" Hustler with the "liberating" and
"empowering" Bad Attitude. The expert witness noted that while
the Bad Attitude women had cropped nails and wore surgical gloves, those
in Hustler had long fingernails which could cause "lacerations and
damage leading to HIV infection" (G&M, 17 December 1992).
"But that didn't work," the attorney complained, "nothing
worked." The judge, in convicting the clerk and owner of having violated
the obscenity law, quoted Butler:
This
material flashes every light and blows every whistle of obscenity. Enjoyable sex
after subordination by bondage and physical abuse at the hands of a total
stranger. If I replaced the aggressor in Ibis article with man, there would be
very few people in the community who would not recognize the potential for harm.
The fact that the aggressor is a female is irrelevant because the potential for
harm remains.... The consent in this case, far from redeeming the material,
makes it degrading and dehumanizing. (in Toobin, 75)
In another case involving Glad Day, a court cited Butler
to censor gay material depicting anal fisting and a man urinating into another
man's mouth. MacKinnon has called the decision "outrageous," but not
because it suppressed gay material. MacKinnon, it should be pointed out, does
not contend that gay/lesbian publications should be exempt from her enveloping
scheme for repressing pornography. As she put it with characteristic precision
and clarity, "I am not necessarily at all clear that Glad Day should not be
prosecuted" (in Toobin, 77).
Whether or not the Butler decision has resulted in
greater censorship of feminist and lesbigay material, it has enabled Canada to
become the only country in the Western world to have banned sexual material
because it demeaned males! In a case that could set a precedent for the
most sweeping suppression of erotic material ever known, Canada Customs seized a
magazine entitled Hothead Paisan for being "degrading to men,"
and prevented the importation of videos entitled Weenie Toons and Total
Restraint for being "degrading to the male penis" (one showed a
woman sticking needles through a man's penis and driving nails through his
scrotum). This innovative application of "phallocentrism" was not what
MacKinnon had in mind, of course, but it could provide a more effective excuse
for ridding the world of erotica/pornography than anything she has dreamed up.
Fortunately, a growing number of feminists in Canada argue
that Butler is completely wrong-headed. They point out that chipping away
at free speech is never a good idea since censorship is just as likely to be
used to silence leftists, gays, lesbians and feminists as pornographers. They
question the evidence that exposure to erotica leads to crimes against women and
children. And they point out that censorship is no solution for sexism. What Butler
really represents, they observe, is a shift from the politics of empowerment to
the politics of protectionism. As Toronto feminist Thelma McCormack put it,
"Far from helping us to achieve equality or reduce inequality, the
prohibition of pornography infantilizes us" (G&M, 15 October
1994, A2). Perhaps Canada's fitful experiment in repressing
"pornography" will encourage some Dworkin/MacKinnonites in the United
States to also reconsider their support for such ill-conceived laws as the
Pornography Victims' Compensation Act.
Experiment #4: Restricting
Hate Speech
The United States, by extending First-Amendment protection
to "hate speech" or "group libel," to ethnic, creedal, and
racial slurs, has engaged in its own "experiment" with free speech.
Most countries--including Canada--do not tolerate such forms of expression.
Following the provisions of the International Covenant on Civil and Political
Rights (1966), which asserts that Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law" (Walker, Hate Speech, 89), Section 319.2
of the Canadian Criminal Code prohibits the communication in any public place of
any statement that "incites hatred against any identifiable group where
such incitement is likely to lead to a breach of the peace," or any
statement "other than in private conversation [that] wilfully promotes
hatred against any identifiable group" (in G&M, 13 November
1993, D6). Until 1992, when the Supreme Court threw it out as an undue
restriction on controversial opinions, another part of the Criminal Code (181)
criminalized the publication of "false news" "that causes or is
likely to cause injury or mischief to a public interest."
Most provinces have passed their own laws designed to
protect minorities from group libel, hate speech, or even "false
statements." In British Columbia, an amendment to the Human Rights Act
prohibits publishing, issuing or displaying any statement, publication, notice,
sign, symbol, emblem or other representation that indicates discrimination or an
intention to discriminate against a person or group or class of persons, or that
is likely to expose a person or a group or class of persons to hatred or
contempt because of the race, color, 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 (G&M,
16 June 1993, A5). There is a similar provision in the Saskatchewan Human Rights
Code.
When the bill was introduced, the minister of Human Rights
said that it was intended to clamp down on racially motivated violence and the
distribution of hate literature, and that it reflected a balance between the
protections against discrimination and the guarantee of freedom of expression
under the Canadian Charter of Rights and Freedoms. A Canadian editorialist also
supported the amendment on the grounds that a multicultural, diverse society
such as Canada's needs "to protect its minorities...from vicious
attacks" (G&M, 2 September 1992). "The precious guarantee
of freedom of speech does have limits when the information is demonstrably false
and injurious to a particular group.... [T]he lowering of the esteem of a
minority group by such slander hurts society as a whole by rendering
accommodation and tolerance more problematic." In one case, the Supreme
Court of Canada held that the federal provision against hate speech did in fact
violate freedom of expression guaranteed by the Canadian Charter of Rights and
Freedoms but that the violation was constitutionally valid and justified in a
free and democratic society (G&M, 31 July 1993, D7). And Catharine
MacKinnon has written that in the anti-pornography brief she co-wrote in the Butler
case, the argument hinged on comparing pornography to "group libel"
and "group hate propaganda" (Only Words, 99-100).
Most laws sound beneficent in the abstract; it is only
when they are applied in specific cases that flaws in them become apparent. An
examination of some recent cases in which Canadians were prosecuted for saying
the wrong thing might reveal the problems inherent in trying to criminalize
"hate speech."
In 1985, James Keegstra, a high-school social studies
teacher in Red Deer, Alberta, was convicted of "promoting hatred" by
teaching that there is a Jewish conspiracy to dominate the world and obliterate
the Christian religion. Keegstra denied that his intent was to incite hatred; he
merely wanted to warn people about an alignment of power that frightened him.
This first conviction was overturned on appeal, but in July, 1992 he was
retried, convicted and fined $3,000 (he could have gotten two years).
A more complicated case is that of Malcolm Ross, a Moncton,
New Brunswick, teacher who did not mention Jews in his class but did question in
speeches and publications certain statements of fact about the Holocaust. For
some, this meant that he "denied" the Holocaust and spread
"anti-Semitic falsehoods" that violated Canadian law against
"hate-propaganda."
This raised the question--long answered in the United
States--as to whether or not Ross should be prevented from teachIng because of
what he said outside the classroom. The New Brunswick Human Rights Commission
thought he should be. According to Hal Joffe, National Chairman of Community
Relations for the Canadian Jewish Congress, that was the right decision:
"Given that teachers are entrusted to teach material of academic
credibility, Mr. Ross's hobby of spreading lies in the public domain provides
ample reason to doubt his professional integrity." Others agreed. For a
writer who published a letter in the Toronto Globe and Mail, the fact
that Ross's remarks "scandalized" a minority group was reason enough
to abridge his right to free speech under the Charter of Rights and Freedoms;
his views, the writer suggested, were made more scandalous by the fact that they
came from a teacher who was in a position of trust over children (John Weingist,
6 January 1994, A14). Teachers, in short, must be held to a higher standard of
"decency and professionalism" (Hal Joffe). According to this logic,
then, under the Canadian Charter of Rights and Freedoms teachers have less
freedom of speech than others have. To put it another way: "If Mr. Ross
wants to be known for his views, which greatly offend others, then he should
give up his teaching position" (Weingist).
The New Brunswick Court of Appeals, however, disagreed,
and let Ross back in the classroom, pointing out that he never propagated his
odious theories in class and that his writings, so far, had not been found to
contravene any of Canada's laws (G&M, 22 December 1993, A20).
Allowing the ban to stand, the Court explained, would "have the effect of
condoning the suppression of views that are not politically popular at any given
time." As an editor for the Toronto Globe and Mail pointed out, if
what a teacher says or does in his private life may be brought against him on
the grounds that he is a poor role model for the kids, then people of liberal
mind can hardly protest if a school board decides to bar homosexuals or Marxists
from teaching. Many Canadians think the court was wrong: "Forgotten in his
judicial nonsense are the rights of the thousands of Canadian Jews who have a
real right--a right to cherish their religious and social heritage, free of
obscene nay-sayers" (Bruce Cameron, letter, G&M, 6 January 1994,
A14).
In another case, a man named Ernst Zundel was convicted
under the Criminal Code for "knowingly spreading false news" about the
Holocaust. The jury found beyond a reasonable doubt that Zundel did not himself
believe what he propagated about the Holocaust and so was engaged in a fraud (G&M,
22 January 1992). His conviction, however, was overturned by the Supreme Court
of Canada in 1992. In a 4-3 vote, the Court ruled that the Criminal Code
provision against spreading false news injured the "public interest,"
was too broad, and unduly infringed the constitutional right of free speech. It
pointed out that the "false news" law could someday be used against
other points of view less reprehensible than Zundel's. And it obviously thought
that the state has no business determining historical truth and falsehood.
But many Canadians still want to criminalize false
statements of fact that give grievous offense to minorities. James Thorpe, a
writer for the Toronto Globe and Mail, argued that a multicultural
society such as Canada must protect minorities from "vicious attacks."
"The precious guarantee of freedom of speech does have limits when the
information is demonstrably false and injurious to a particular group." The
Supreme Court's "narrow and...legalistic interpretation," he urges,
"should not be used to prevent society from protecting [minorities] from
the indignities of Mr. Zundel's slander" (G&M, 2 September
1992).
Those bent on silencing "hate speech" have even
invoked the laws of other countries in their cause. The Simon Wisenthal Center
asked the Canadian government to bar British author David Irving from entering
the country on a speaking tour in the fall of 1992 on the grounds that he was
convicted in Germany for denying the Holocaust and "insulting the memory of
the dead." Irving had said that the number of Jews killed in camps had been
exaggerated and that he had not found one piece of persuasive evidence that
there were gas chambers in Auschwitz. The Center argued that being convicted in
Germany for "slander and defamation of Holocaust victims" is
equivalent to being convicted in Canada for "public incitement of
hatred" under Canada's Criminal Code. The Immigration Act says no visitor
shall be granted admission to Canada if he or she has been convicted of an
offense in a foreign country that would constitute an indictable offense in
Canada. The national director of community relations for the Canadian Jewish
Congress said, "our goal was to ensure that David Irving was not given a
platform to spew forth his Holocaust-denial garbage" (G&M, 31
October 1992). Irving was given two days to leave the country.
Perhaps most troubling of all is the case of Joseph
Fletcher, a University of Toronto professor who conducted his own experiment in
free speech when he invited members of Heritage Front, a white-supremacist
group, to address a class studying racism. Fletcher was attacked for not
adequately preparing students to counter the group's polished public-relations
techniques and for making students uncomfortable by saying that students who
felt "threatened" by the group's presence could leave. Fletcher was
not prosecuted for what he did, but he was roundly condemned by both students
and colleagues for flouting the "values and norms of Canadian society,
which explicitly prohibit the promotion of hate"; for creating an
"unsafe learning environment"; for facilitating the encroachment of
racist ideas into the mainstream; and, for silencing his critics by invoking his
academic freedom (G&M, 23 April 1993, A17; 28 April 1993, A21).
Several critics of Fletcher were particularly provoked by
the invocation of "academic freedom" to defend what they regarded as
pernicious behavior. As far as the editor of the student newspaper was
concerned, this exercise in public debate and free speech contravened the
university's stated commitment to racial tolerance and was thus intolerable.
Another student wrote:
The
university's "tolerance" of views which threaten the safety and lives
of many of its population, in the name of academic freedom, is disturbing. We
know that this "tolerance" exists at all levels, allowing even
professors espousing overtly racist or anti-Semitic views to retain their
positions. "Independent inquiry," "academic freedom," and
"liberal education" become empty words if they are used to promote,
rather than protest against, intolerance. (G&M, 28 April 1993, A21)
In other words, "academic freedom" and
"tolerance" are dangerous terms, permitting apparently
"liberal" and "objective" professors to slyly promote evil
ideas without being fired. The paranoid assumption behind this passage is that
professors must be endorsing the views held by speakers they invite to class.
According to this logic, a criminal-justice professor must be promoting crime
when he or she invites a pathological or career criminal to talk to students.
That Professor Fletcher was attacked by people inside the university with
such shoddy logic bodes ill for free speech on Canadian campuses.
Since "hate speech" is so loathsome, the
campaign to extirpate it has immense moral justification and appeal. But we
should never forget that the road to Hell is paved with noble ideals and good
intentions. Hating "hate speech" is now seen to sanction depredations
of other civic ideals, including free speech. In 1993 the Canadian Human Rights
Commission held hearings on a complaint that messages recorded on a telephone
answering machine by the white-supremacist Heritage Front were a violation of
somebody's rights and the tribunal ordered the messages, and others like them,
suppressed. In another case, the federal minister responsible for the post
office attacked a magazine for containing "vile and disgusting expression
of hatred toward the Jewish people." The minister said that the post office
should not deliver the magazine: "I will not tolerate the circulation of
such materials." The organization that put out the magazine said, "we
are not anti-Jewish, we are anti the banking system...and perhaps a handful of
Jewish people are major bankers." Indeed, this magazine never used the word
"Jew." When material can be summarily banned from the mail because a
minister deems it hate propaganda by implication, everyone's freedom to speak is
seriously jeopardized.
No case better illustrates this truth than that of Cherene
Naugler of the Riverport District Elementary School (in Nova Scotia). She was
summarily suspended for teaching a lesson about the Holocaust in which her
five-year-old pupils portrayed Nazis and Jews. During a Remembrance Day project
on the Holocaust, the students with dark hair and eyes were classed as Jews,
while fair-haired pupils with blue eyes portrayed Nazis. The dark-haired kids
were lined up and told that in Hitler's Germany they would have been sent to gas
chambers and their bodies burned afterward. After one dark-haired child reported
that the experiment had provoked a nightmare, the teacher--who was trying to do
the "right" thing--was suspended.
Free speech is further endangered when the concept of
"hate speech" is inflated and meretriciously used to suppress
repugnant or upsetting expressions that otherwise could not be curtailed. When a
politician said "Gone are the days of catering to radical women's groups,
minority groups, etc.; gone are the days of protecting these and other parasites
of society," the executive director of the Nova Scotia Human Rights
Commission urged the police to lay criminal charges against the man for inciting
hatred. Although no charges were laid, lawyers and police did consult with Crown
prosecutors on the nature of the phrase "parasites of society" (G&M,
13 November 1993, D6). Stunned by this display of state power, William Thorsell
remarked that the concept of "human rights" has become so
"convoluted in this country" that human-rights commissions no longer
defend free speech from police attacks but request the attacks.
The City of Montreal had a law (which was ruled
unconstitutional) that described as "hate propaganda against women"
any signs a woman felt were demeaning or degrading (G&M, 2 September
1992). Canada Customs temporarily seized Birth of a Nation, The
Merchant of Venice, Black Looks: Race and Representation by bell
hooks, and two anti-pornography works by Andrea Dworkin as hate propaganda, and
in 1989 it briefly forbade importation of Salman Rushdie's The Satanic Verses
on the grounds that it was "hate literature" against Muslims.
Repressive laws will always be turned against those whom they first benefit
(demonstrated in the U.S. by men suing women for "sexual harassment").
When a women-only magazine named Pandora published an article that
asserted that divorced men should never be allowed to have custody of children,
a man, who was refused access to the periodical, accused the magazine of
disseminating "hate literature." Illustrating once again how
convoluted "human rights" have become in Canada, a Nova Scotia
human-rights commissioner ruled that Pandora had the right to refuse all
rebuttal letters from men in order "to promote women" (G&M,
18 March 1992).
A Quebec politician asked the government to seize Mordecai
Richler's O Canada! O Quebec! Requiem for a Divided Country as "hate
literature" because it was "completely insulting towards the former
premier René Lévesque" and insinuated that the Quebec people were a
"nasty, racist tribe." In another case, the Catholic Civil Rights
League requested that a CBC award-winning documentary about North-American
Indians from a non-Western perspective be prevented from showing on any TV
network; the group charged that the film "made inflammatory and false
statements" about early Jesuit missionaries in Canada (G&M, 1
January 1993). When local black political activists failed to cancel the Toronto
revival of Show Boat (1992) after months of pressure, they asked the
police to determine if this "racist play" made by Jews promoted hate.
The police said it did not, though this did not stop demonstrators branding the
play as "hate propaganda." Putting a plug in for prior restraint and
the heckler's veto, a Canadian cultural critic thought the play should never
have been scheduled for Toronto, which has a "large and volatile"
black population: "That is rubbing people's noses in things," he said
(G&M, 19 October 1992, A2). "The impresario did not have to
choose Show Boat." "History is going to remember the
insensitivity of the [Performing Arts] centre's opening." When the play
opened on Broadway, there were no protesters, signs, or graffiti.
The "hate-propaganda" law and the Canadian Human
Rights Act were both invoked to prevent Andrew Dice Clay from entertaining
wrong-thinking people with his politically incorrect humor. Feminist groups such
as Media Watch, the Legal Education and Action Fund, and Feminists for Healthy
Humour contended that "his routines tend to promote hate against
women" and that it was perfectly justifiable under Canadian laws to keep
Clay from using "tax-funded theatres" to spread such "hate
propaganda" (G&M, 18 November 1992). Among the things cited to
support allegations of "hate propaganda" were Clay's use of a
"diminutive" voice to imitate women, making them sound "vague and
stupid," and telling a Rodney King joke. Although Clay was allowed to
perform, the City Council voted to establish guidelines limiting the type of act
that could be booked into civic theaters.
"Hate propaganda" has even been used to sanction
the monitoring of media advertisements and fictional representations. Back in
1991 Ontario Premier Bob Rae said that his government was going to fund a study
on stereotyping with the intent of letting citizens know what images would be
approved for advertising--and by extension, books, plays and television.
"Think of it," one writer warned, "the government will tell you
what the correct depiction of a woman, an Indian, or a handicapped person may
be" (Maclean's, 27 May 1991). "Negative stereotyping" is
frequently invoked in Canada to suppress objectionable material. An anti-racism
alliance in Orillia, Ontario persuaded the library system to remove the works of
W.P. Kinsella because of the way the author depicted natives; another group in
British Columbia demanded the removal of Lynn Banks Reid's The Indian in the
Cupboard; the Toronto Board of Education asked the schools to remove Noble
Laureate William Golding's The Lord of the Flies because it used the word
"nigger"; and a black group with the disarming acronym of PRUDE called
for the schools in Saint John, New Brunswick, to remove both Mark Twain's Huckleberry
Finn and Harper Lee's To Kill a Mockingbird for the same reason (G&M,
14 March 1994, A11).
When CBC aired Valour and the Horror--a film
documentary suggesting that a World War II Royal Canadian Air Force bomber
command was guilty of war crimes--veterans were so outraged at what they
considered its slanderous distortions that they demanded that two of the show's
three parts be permanently withdrawn from distribution and broadcast and that
the book based on the series be removed from libraries. The furor provoked
Parliament to hold hearings on the program's "authenticity."
Eventually, a veterans' organization, under the Class Proceeding Act of 1992,
sued everyone involved with the production for defamation and group libel,
a legal notion championed by Catharine MacKinnon, though for purposes other than
to assist patriotic and aging white men to preserve their memories. Under the
same act the mayor of Pembroke, Ontario, sued the Ottawa Sun for making a
facetious reference to the city that its mayor deemed demeaning and insulting.
These are just the beginning. What prevents the KKK or even a political party
from suing if someone should describe it as "racist" or
"sexist"? Anyone can walk down the road of Good Intentions.
What is particularly troubling about these events is that
so many human-rights activists and civic-minded citizens embrace coercive and
repressive legislation to protect people not only from imagined dangers but from
"discomfort" and emotional "pain." Someone says something
that offends a group and suddenly the police, Crown prosecutors and human-rights
commissions are involved, indeed--even parliaments! An editorial bluntly
described the situation by saying, "The Supreme Court has been mostly
unwilling to allow the Criminal code to be used to stifle free speech, so now
Canadian human rights law is being twisted, distorted and stood on its head in a
bid to accomplish the same thing" (G&M, 19 June 1993, D6).
More dangerous, of course, is the perverse notion that
things that might give offense should be suppressed before they do so.
One would think that this frightening idea of prior restraint would no longer
have appeal in a democracy, but this is not the case in Canada. The chairwoman
of the Metropolitan Toronto Police Services Board has suggested that any
perfectly legitimate activity, such as a theatrical performance, should not be
allowed to take place if it might upset someone to the point where police are
required to maintain order. In Canada, growing sensitivity to every affront and
the desire to avoid giving offense have breathed new life into the discredited
concept of the "heckler's veto."
"Freedom of speech is not the issue,"
proclaims one advocate for punishing people who say the wrong thing. But it is
very much the issue. As Samuel Walker argues in Hate Speech: The History of
an American Controversy (University of Nebraska Press, 1994), the historical
record of the United States at any rate demonstrates that minorities are more
endangered by laws that limit speech than by people who use speech to defame
them. The long-term political and social interests of historical victims of
discrimination are best advanced, Walker contends, not by criminalizing but by
protecting it, no matter how offensive or defamatory (126; speech that
immediately causes illegal acts is a different matter). William Thorsell, a
noted Canadian journalist, has come to the same conclusion, warning his
countrymen about the dangerous effects of good intentions:
"Promoting hatred" is too elastic a concept to regulate by law
in a free society. The regulation of such offenses must be rooted in free speech
itself--the right and duty of independent people to openly challenge toxic
ideas; organize against them and defeat them in the court of public opinion.
Instead, we complacently depend on Human Rights' Commissions to call the
police in the battle of ideas. In this arena, the police will never be decent
soldiers. (G&M, 13 November 1993, D6)
Experiment #5: Condemning
"Harassment" and "Discrimination"
Apparently impressed by the enormous success of America's
campaign against drugs, the Ontario government, in an attempt to create an
inoffensive, decorous, and respectful campus environment, promulgated in early
1994 a policy of "zero tolerance" for harassment and discrimination in
Ontario universities. The Framework Regarding Prevention of Harassment and
Discrimination, concocted by the Ministry of Education and Training and the
Ontario Human Rights Commission, prohibits harassment, sexual harassment,
discrimination, and systemic harassment/discrimination on the basis of race,
creed, sex, sexual orientation, disability, age, dialect, accent, the
"receipt of public assistance," or "for having a record of
provincial offenses or pardoned federal offenses." The policy explains that
"harassment" means anything that is known or "might reasonably be
known" to be offensive, hostile, inappropriate, etc.
Things that could give offensive include "gestures,
remarks, jokes, taunting, innuendo, display of offensive materials, academic
penalty, hazing, stalking, shunning," graffiti, signs, cartoons, or any
"adverse treatment related to one or more of the prohibited grounds" (G&M,
15 February 1994, A22). The Framework also contended that "policies that
appear neutral" could be seen as aspects of systemic
harassment/discrimination.
The memo also outlined another offense: creating a
"negative environment." A negative environment can be created by
"one" or a series of comments or conduct that is
"unwelcome/unwanted or offensive." It pointed out that "a
complainant does not have to be a direct target to be adversely affected by a
negative environment" nor has to have a witness to the offense. In short,
anyone who feels uncomfortable about anything has grounds for complaint. And any
complaint lodged must be formally and fully investigated by a panel on which no
white males will be allowed to serve. And, according to Pernita Persad of
the Ministry of Education and Training, "the offending individual is guilty
until proven innocent" (quoted in Campus Reports, 9 [9], October
1994, 1).
A report by Patrick Cashem in the Toronto newspaper The
Interim notes that students or professors suspected of violating the
"zero tolerance" policy will be suspended during the panel review
process, and expelled or fired if they are found guilty. The
"zero-tolerance" policy applies to all visiting speakers and boards
of governors as well as to faculty, campus workers, university
administrators, and students in and out of class. In other words, it
covers not just classrooms and labs but all places where teachers and students
meet, including off-campus bars and restaurants. The student association
of Carleton University has already moved to abridge out-of-classroom
interactions--social gatherings--between students and teachers for being "a
haven for harassment and coercion" (G&M, 15 February 1994, A22).
Nowhere does the memo address the disastrous impact this policy would likely
have on academic freedom or on the relationship between students and professors.
The consequences could be momentous. Honest discussions of
many issues will become impossible or criminal. How is a professor to discuss
controversial novels, poems, articles, songs, paintings, films, ideas without
now risking offending the tender sensibilities of someone in class? How is a
professor to discuss history, literature, art, and almost any others endeavor,
without fearing that a casual reference to gender, age, marital status, ethnic
background, profession, religion, physical appearance, personality trait or
criminal background might be construed as "inappropriate" by someone
in class? Under this policy, the occasions for complaint are limitless. Jews
could object to reading The Merchant of Venice, blacks to reading Othello,
and women to Ulysses. Outside the classroom, a white male who either
"ignores" or "leers at" a female student could be guilty of
actionable harassment. Anyone who refuses to study with a minority student could
be hauled up for discrimination. Anyone teaching, promoting, or defending a
traditional Christian view of human sexuality or the family could be charged by
minorities of a different religion, or by homosexuals or lesbians for offending
their views.
These are not rhetorical speculations, especially in light
of recent events on Canadian campuses. Canadian academics have not forgotten the
persecution of Jeanne Cannizzo, whose anthropology class at the University of
Toronto was invaded and disrupted by black activists who disapproved of her
exhibit at the Royal Ontario Museum called "Out of Africa," which they
called "racist" (1989). Her house was scrawled with racist graffiti,
and she was shouted down and threatened with physical violence. Not
surprisingly, the University administration failed to defend her academic
freedom by prosecuting the so-called "anti-racist" activists, and
Cannizzo, after suffering a nervous breakdown, withdrew from academia and
eventually from Canada. The specter of Cannizzo, considered the first major
victim of the new form of censorship that has blighted campuses in the 1990s,
still haunts the Canadian academic world (G&M, 11 May 1994).
There are other examples of "good intentions"
running amok on campuses. In 1991 the University of Toronto established a
41-person watchdog committee to determine if anything in the curriculum could
offend minority or "disadvantaged" groups, such as a sociology
textbook that compares black with white households (an actual example provided
by a member of the committee!; Gravitas: A Quarterly Journal of Current
Affairs [Canada], 1 [3], Autumn 1994, 20). At York University a professor
has had "observers" stationed in his class when he discussed the
evolution of behavioral differences between men and women. In 1993, a talk by a
guest-Iecturer on "false memory syndrome," sponsored by the Department
of Psychiatry at McGill University, was disrupted by feminist activists. The
administration made no attempt to reschedule the lecture or to ensure that the
scholar's views were given a hearing (from a typewritten document entitled
"Academic Freedom, Opinions and Acts" supplied to me by a Canadian
academic). At the University of British Columbia--my alma mater--the
administration is conducting an inquiry into charges that the political science
department is racist and sexist after a student complained that a male professor
said during a discussion that under apartheid blacks "were at the bottom of
the totem pole" (G&M, 30 July 1994, A7). As Professor Doreen
Kimura told an audience at Simon Fraser University, "these are not isolated
events, but are commonplace now, at least in eastern Canada."
The "zero-harassment" policy has already
produced its own brand of victims. The president of the Pro Life Law Students
Association at the University of Ottawa has been brought up on charges of
discrimination against female students because of his pro-life position (the
charges were brought by two male professors, either because they
sincerely felt aggrieved or because they wanted to protect themselves by
proclaiming their ideological solidarity with pro-choice feminists). And then
there is the case of Matin Yaqzan, at the University of New Brunswick. In 1993,
he published an opinion piece on date rape in the student newspaper. The piece,
which essentially espoused a conservative Muslim position on the subject,
offended a host of people who momentarily set aside their frenetic commitment to
"multiculturalism" to have-at Professor Yaqzan. In this case, the UNB
administration, again not surprisingly, failed even to passively defend Yaqzan's
academic freedom, but actively attacked it by immediately suspending him and
preventing him from discussing the matter, and then undertaking an inquiry into
Professor Yaqzan's "total" employment record and performance; it
eventually "retired" him. There was no protest from the Canadian
Association of University Teachers or the Ontario Confederation of Faculty
Associations although this case raised the central issue of whether an academic
has the right to express a controversial opinion in a journal that is part of an
institution of higher learning, and in a country that often looks
condescendingly on other countries where citizens are denied freedom.
Given that more and more students no longer see the
university as a place to indulge the free interplay of ideas but as a sanctuary
where they can avoid any ideas that might conflict with their own, the
"zero-harassment" policy nurtures, inevitably, a Madame-Defarge
mindset. At the University of Toronto, students brought copies of a flyer that
read "Homosexuality is wrong because there are no healthy children produced
from it. Abortions are wrong because children are killed" to the
affirmative-action officer and told her to stop them. As she describes it,
"people challenge me and say 'you've got to do this for me because there is
zero tolerance,' even if it's something they don't like in a textbook. If you
have a conflict about the differing views of Michel Foucault's notion of the
origin of the idea of sexual identity, I don't think sexual harassment should be
the broker" (G&M, 6 January 1994). "The framers of the
zero-tolerance policy seem not to understand," Robert Fulford explains,
"that university education has always been offensive and always will be....
Being offended is part of learning how to think."
Promulgated by a party that promised an honest, open, and
caring government, the policy of "zero tolerance" is couched in the
language of repression and absolutism and not in the language of reasonableness
and justice. Robert Fulford believes it deserves a place in any future anthology
of significant documents of the 1990s for perfectly embodying "the
relentlessly grim priggishness that now afflicts public discussion of race and
sex" (G&M, 2 February 1994, A12). It should be included for
another reason as well: because it represents "the most severe limitation
on academic freedom in Canada in this century" (Robert Fulford).
A policy as sweeping and authoritarian as that propounded
in the Framework is bound to backfire against the illiberal liberals who
promoted it What prevents a Christian student from complaining about the
atheistic beliefs of a philosophy or biology teacher? Of a pro-life student from
indicting a pro-choice teacher? Or a male student from claiming that the views
of feminist professor create a hostile classroom for men? Instances of such
turn-abouts have already occurred in the United States and surely will in
Canada.
To their credit, almost all academic organizations in
Canada have condemned the Framework (with the exception of York University's
Faculty Association and the Ontario Confederation of University Faculty
Associations, both of which approved it). The council of the Canadian
Association of University Teachers asked--lamely--that universities refrain from
implementing the zero-tolerance code until faculty associations could examine
its implications more closely. At Trent University, forty percent of the faculty
signed a petition that repudiated the prevailing belief that a university should
provide a friction-free environment and that defended their right to be
offensive (G&M, 2 February 1994, A12). And John J. Furedy, Professor
of Psychology at the University of Toronto and President of the Society for
Academic Freedom and Scholarship, has spoken incisively and eloquently against
the "velvet totalitarianism in Canadian academe." His academic
organization (founded in 1991 by Professor Doreen Kimura, Professor of
Psychology, University of Western Ontario) has been the only one to attack the
"comfort-at-any-cost" principle underlying the Framework. On the
individual level, however, few academics have spoken out in opposition to the
Framework. What voices have been raised in defense of free speech, observes
Professor Geoffrey Durrant, "seem to be disproportionately those of U.S.
and other immigrant academics" (letter to me, 6 September 1994).
Policies first hatched on campuses or experimented with
there often work their way into the larger society. Nova Scotia is the first
province to implement a "zero-toleration" policy for all its
citizens. Under its sexual-harassment guidelines the mere display of
"graphic" photographs is grounds for dismissal. There needs to be no
victim, nor any evidence that someone was actually harmed by the words or
actions of another. An anonymous call to the Nova Scotia Women's Directorate is
grounds enough for starting an investigation (Naomi Klein, G&M, 6
January 1994). In Ontario (naturally), a feminist group wants to haul the Film
and Video Review Board before the Human Rights Commission on the grounds that
the Board has violated their rights and discriminated against them by failing
to censor flasher films. If "zero tolerance" continues to spread
throughout Canadian society, poor, nerve-racked Professor Cannizzo may find
herself joined in exile by a number of her freedom-loving compatriots.
Conclusion
No one knows for sure how many Canadians feel that their
right to free speech is being jeopardized by judges, Canada Customs officials,
anti-pornography zealots, human-rights activists, or provincial governments.
Certainly some do. "The exercise of free speech," according to
newspaper editor William Thorsell, "is narrowing in Canada on a number of
grounds." The reason, for Robert Hough, is "an entire nation's
discomfort with freedom of expression" (G&M, 12 February 1994,
D5). For others, the blame is to be placed on the Charter of Rights and Freedoms
itself. More and more Canadians now view this document as a cruel political
ruse, a "fraudulent" promise that not only fails to effectively
protect freedom of speech and expression but that actually legitimizes
censorship and racial discrimination "by making an intent to make social
improvements a sufficient justification of either" (Geoffrey Durrant,
retired professor, University of British Columbia, in a letter to the G&M,
6 September 1994). A University of Toronto professor of law observes, "One
would have expected more, not less freedom of speech since 1982. But my
perception is that exactly the opposite has happened" (CSM, 28
December 1993, 12). Even radicals feel betrayed by the Charter, which one calls
"the biggest setback for progressive forces and the working class that
we've ever had, and whoever persuaded Ed Broadbent to go along with it should be
taken out and shot" (G&M, 9 November 1993, A5; let's hope this
is a figure of speech).
Whether it is despite or because of the Charter,
official censorship in Canada has become so alarming that the International
Association of Poets, Playwrights, Editors, Essayists, and Novelists (PEN)
called upon the Canadian government to respect the expressive freedom of its
citizens (G&M, 20 October 1993, A24). Louis Rossetto, the editor and
publisher of Wired, has pointed to some of the events catalogued in this
essay as "an ominous indication that the violation of human rights is
becoming Canadian policy." According to Rossetto, Canada has now become a
leading violator of free-speech rights, setting a scary and ignoble precedent
for other nations that would like to control what their citizens read and think
(G&M, 28 March 1994).
Others, of course, would disagree with this bleak
characterization. They would view most of the events I've catalogued here as
enlightened efforts on the part of duly elected or appointed officials and
concerned citizens to preserve and promote such noble ideals as fairness,
diversity, civility, and equality. Let me quote from one Canadian who feels just
this way:
"Political
correctness" should be the norm enforced primarily, as all social norms
are, informally, by personal and group censure, by social ostracism, by
embarrassed silence, by open rebuke, and by any other means at our individual
and collective disposal to communicate disapproval and distaste. It has,
however, and will continue to be necessary to support the informal sanctions by
legislative, regulatory and contractual means. Attitudes change when behaviour
changes, and behaviour changes when the cost and benefits change. (Thomas Storm,
letter to the G&M, 25 February 1994, A18)
This sounds very reasonable until one thinks about what
might have to be done to make "wrong attitudes" costly to those who
espouse them. Behind the sinister silkiness of "legislative and regulatory
means" is the mailed fist of authoritarianism:
How
solicitous the government of Canada is in our behalf! How tenderly it blocks our
ears and stops our eyes, that we might be spared the horrors of free expression.
As if it were not busy enough already, what with banning hateful speech,
impounding pornography, and ordering every minute of our broadcast day for us,
it also forbids advertisements, depending on the medium, for cigarettes, liquor,
or sex; as for the efforts of its course--stopping broadcasters, suppressing
books, and censoring newspapers--well, words fail us. (editorial, G&M,
21 September 1993, A18)
As a growing number of Canadians are beginning to suspect,
the easiest way to Hell is on a road paved with good intentions. No wonder;
there are always so many eager and well-meaning volunteers to build it. And, of
course, the destination is always misnamed.
Most Canadians, I suspect, go about their daily lives
still thankful they live in Canada--tolerant, secure, and free--and not in the
United States--intolerant, violent, and fascistic. Whether they are
right--whether their confidence, if not complacency, is well founded--will only
be made clear, of course, in the future. Let's hope that in that future,
American disk jockeys never again feel compelled to shout across the Peace
Bridge:
Hear ye! Hear ye! Let Freedom ring out for all our
brothers and sisters to the north!