A new entry for the don’t-let-this-happen-to-you file: the case
of Kane v. Alberta Report, decided, last April 30, in
favor of one Harvey Kane of the Jewish Defense League. The conflict
should serve as a parable for what happens in modern politics when
negative and positive (group) rights collide. One of the first
casualties is free speech.
The three-judge Alberta human rights tribunal examined charges
that an article in an
October ‘97 issue of the Edmonton-based newsmagazine
Report, “A Canmore mall project ends in a bitter feud,”
had engaged in negative stereotyping of Jews and had therefore
violated the very Canadian sounding Alberta Human Rights,
Citizenship and Multiculturalism Act (hereafter, just “Human Rights
Act”). The judges found the Report “guilty” of publishing,
and the writer of expressing, an impolitic opinion.
Maybe it’s the fact that it emanates from Canada, home to one of
the world’s most dysfunctional politics, but it would be difficult
to make up material this good. The judges’ ruling reads like
a parody of modern fuzzy-headed liberalism run amuck. After
traipsing through past rulings on the subject of discrimination —
some of which are absolute howlers (e.g., the “Sambo’s Pepperpot”
case) — the judges held that “freedom of expression, while a
fundamental value in our society, is not absolute” and that there
can be “no social interest served in tolerating the free expression
of such material.”
“Such material” means expressions of sentiments that the judges
do not agree with; or, in this case, the quotation of a sentiment
(“North American commercial real estate is dominated by firms that
often happen to be Jewish-owned…”) that they find
distasteful. They found said quotation to be so offensive, in fact,
“that it warrants limiting freedom of expression in this case.” The
Report (full disclosure: I have reviewed books for it in
the past and will shortly join its staff) was ordered to give Kane
a whole page to rebut said slur.
Thus far, and from a rather Pollyannaish perspective, the ruling
could be seen as mostly stupid and annoying. Report editor
Link Byfield had already offered Kane a full page to reply in the
past, based on his magazine’s rigorous policy of giving dissent a
forum, and all the tribunal did was order that that option remain
open. It declined to level fines, as other tribunals have done in
other high profile cases, so one could argue that the
Report got off light.
However, the judges’ response to Byfield’s concerns that “vague
[human rights] laws… undermine the notions of a free society”
requires all appropriate scrutiny. “It is incumbent on all
Canadians,” they harangued, to know the various nuances of the law.
The tribunal therefore “strongly suggest[ed]” that Byfield and
company seek counseling to make sure that “he and his publication
will not cross the line between what is tolerated and what is
discriminatory communication.”
“Of particular interest is the understanding that discrimination
is not about the intention of the publisher (in this case); it is
about the impact on the vulnerable group, from their point of
view,” the tribunal ruled.
Let’s play that again: Write something that offends a minority,
even accidentally, and you can (a) get dragged before a human
rights tribunal, (b) be fined and/or publicly embarrassed and (c)
be told that your own intent in writing said article isn’t
admissible as evidence. This is a recipe not for the maintenance of
freedom of expression (“a fundamental value”), but for its demise
by the Chinese water torture of a thousand different grievances,
petty and otherwise.
Nor are Byfield’s concerns about the law’s vagueness
unjustified. The judges based their ruling on a section of the
Human Rights Act only by ignoring a clause that stated flatly,
“Nothing in this section shall be deemed to interfere with the free
expression of opinion on any subject.”
In going beyond the stated limits of the Human Rights Act, the
tribunal was not doing anything terribly new. Across Canada, the
collective positive rights provisions of the various human rights
legislation are being interpreted to trump individual rights, such
as expression and association. This is a very good recipe to create
resentment and enmity toward minorities, and to channel such hate
underground, away from even semi-respectable outlets, where it can
be argued and have cold water thrown on it. Such events may even
fuel a backlash of European proportions.
The awful irony of it is that human rights were once supposed to
be about bringing people together.
