The Keegstra Case:
Freedom of Speech and the Prosecution of Hateful Ideas
(1986)
by John Dixon

Is there anything left to say about Jim Keegstra and his
punishment? The slow news months of the Canadian summer made room
for hundreds of stories, articles, editorials, reports, letters
and cartoons that addressed the utterances and fate of this
dreary man whose mind may safely be said to be one of the most
under-developed regions of Alberta. Virtually everyone in Canada
has certainly, by now, given some thought to the claim to
national significance of a person who believes that both Trudeau
and Kissinger are conscious tools of the Kremlin, and who thinks
that it makes sense to accuse Jews of conspiring (for centuries,
yet) to persuade the human race to embrace an ideology of equal
rights. It is tempting to judge that too many trees have already
died to make the newsprint for our prolonged peep at this
cultural marginalia. Such a judgment would certainly be justified
it if were only Mr. Keegstra who has been fixing the attention of
the nation and its press. The defendant has been, however, merely
an occasion (the second in very recent memory) for Canadians to
renew their struggle with the old idea of prosecuting speech
crime. Keegstra may soon be restored to the obscurity which his
indictment interrupted, but the deep source of the significance
of his case is fated -- indeed, deserves -- to remain newsworthy.
The big news is that we -- the true North, strong and free -- are
willing to use the force of the law to suppress offensive talk.
This is a durable story, and civil libertarians have a part to
play in the thorough telling of it. The B.C. Civil Liberties
Association is, of course, "for" free speech and "against"
censorship. We are not, however, "for" Keegstra and "against"
those who sought his prosecution. Our position is, unhappily or
not, more complicated than that. It certainly does not lend
itself to expression in a few clauses, however judiciously chosen
by ourselves or the reporting media. Perhaps now, when at least
some of the passion aroused by the Keegstra case has been spent,
is the appropriate moment for us to have our say.

Civil libertarians think Keegstra's obsessive "historical"
ravings were at once an abuse of his position as a teacher of
high school students and incontrovertible evidence of
professional incompetence. No person can legitimately take
shelter under the freedom of expression protections of a
democracy when the expressions at issue are made while
undertaking the public responsibility of educating children. The
elementary and high school systems are not viewed by civil
libertarians as part of the public forum we seek to protect from
censorship. We doubt that it makes sense to apply a notion such
as censorship when we judge the professional wisdom of what is
chosen for the attention of not yet fully-fledged minds. Far from
arguing that Keegstra had a civil right to continue spreading his
_dreck_ at Eckville High, civil libertarians wonder (along with
the rest of Canada, we hope) why it took twelve years for the
local school board to exercise its appropriate authority and fire
him. But at least Keegstra was finally fired, and was finally 
removed from his position as Mayor of Eckville. We were slow off
the mark, but Canadians finally did the right thing with the
right tools. Keegstra was punished: we had set him aside.

Only to pick him up again in January 1984 as a defendant in a
hate propaganda case. It is at this point that the position of
civil libertarians diverges sharply from that of so many other
thinking Canadians. When Keegstra was charged under the
provisions of Section 281.2 of the _Criminal Code_, he was not
being charged with an abuse of his professional position as it
touched the welfare of minors (unsurprisingly, since it is not
the function of the _Code_ to regulate professional conduct as
such), but rather with the general offence of willfully promoting
hatred against an identifiable group. Civil libertarians hold the
view -- and we have held it since the Cohen Commission
recommended the present law in 1965 -- that the hate propaganda
provisions of the _Code_ represent an unacceptable departure from
democratic practice that is grounded in an ill-informed notion of
what democracy means. Believing this, we must believe and urge
that Mr. Keegstra should never have been made the subject of
criminal prosecution.

Let me state our position (perhaps it would be more forthright to
say "our dilemma") bluntly: we hold that the willful attempt to
promote hatred against an identifiable group is immoral, but we
also argue that the expressions that form such attempts must be
protected from legal sanction or obstruction. (We emphasize that
protection should be limited to "expressions" because we are at
least sometimes misunderstood as holding the view that even
racist "acts" should be protected as a sort of civil right.
Related to this confusion is the interesting claim that there
really isn't any morally or politically relevant difference
between talk and action, and that the non-existence of such a
difference makes our position nonsensical. Treatment of this form
of moral dyslexia would require a separate and more extensive
article than this one.) We realize that these two judgments --
"Yes, it's immoral. No, there shouldn't be a law against it." --
make an odd couple. Having identified the expressions of Keegstra
as hateful -- and not just aesthetically hateful, but hateful in
the serious sense that they strike at our rightful recognition of
one another as equal participants in a community -- how can we
avoid the implication that there ought to be a law to protect us
from this threat? Those who oppose the civil libertarian position
claim to smell an ideology under this compost of paradox, and
dismiss us as impractical and irrelevant ideologues . . .  or
much worse. They are, we admit, partly right in this -- we do
have some ideas; we disagree, however, about the value and
significance of those ideas. We disagree because our main idea as
civil libertarians is, in fact, the idea of democracy; and the
idea of democracy is not just "our" idea as civil libertarians --
it is, if you will, the idea of Canada. The central idea of
democracy is, of course, that the only form of government
consistent with the dignity of full personhood is _self_-
government. Any other form of government -- however wise,
provident, enlightened, efficient, or seemingly inevitable -- is
inconsistent with the adulthood of our species. It's a great idea
and, seemingly, an irresistible one. It is impossible to call to
mind any contemporary state, however totalitarian in fact, that
does not seek to legitimize its dictates by invoking "the will of
the people". We remind (congratulate?) ourselves, when we reflect
upon nominal democracies, that we are citizens of the real thing.
We really do rule ourselves; we really are the sovereign
authority in Canada. Parliament, legislative assemblies, and
municipal councils do not rule us: these are but among the
instruments that we use in governing ourselves. All of us are
called, as citizens of a democracy, to a perpetual term of office
as members of a ruling assembly -- and as such we all have work
to do that can never be delegated. The hands and minds of
sovereign citizens must be free to do their work of ruling, and
thus it is that citizens claim a range of liberties and rights,
not as petitioners or subjects before governments, but as the
central branch of government, the legitimate source of all
political authority in the state. If we take seriously the idea
that the ruler of Canada is the Canadian people, then we must
take seriously a direct corollary of that idea: the mind of every
Canadian citizen is an element of the thinking, deliberating, and
judging intelligence that is the real boss in this country.
Seeing this, we must also see that those minds can never tolerate
an attempt by any subordinate authority in the State to preempt
their ruling work by controlling the access to the public forum
of thoughts or expressions. For what kind of ruling authority
could accept a censor without realizing that, in doing so, it was
effectively relinquishing its power to confront and make sense of
the world by its own lights? A censoring authority controls
access to information, and in doing so, it controls the minds of
those who are subject to it. A ruler who accepts a censor accepts
a regent, and the acceptance of a regent is a form of abdication
of the sovereign role.

It is these considerations that are at the heart of a democratic
people's insistence upon the paramount status of the right to
freedom of expression in the hierarchy of rights it claims as
indefeasible. Not even a "moral majority" can undertake, in a
democracy, to exclude offensive expressions -- even morally
offensive expressions -- from the protection that we jealously
accord the communication of thoughts and ideas in the public
forum. The freedom of our forum is not the capricious symptom of
some distaste we share for subjecting our public utterances and
musings to reasonable limits. It is a condition that our chosen
form of government imposes upon us no matter what the demands of
taste -- even moral taste -- wish to impose. Any retreat on this
matter signifies the onset of a kind of spiritual amnesia, and if
we forget that we rule, we shall not rule.

All this may seem relatively easy to take, perhaps even
platitudinous, until we get down to cases. Surely we didn't mean
to include that! Not him! Don't tell us that the advice to hate
an identifiable group falls within the range of thoughts and
expressions which we must not use the force of the law to
suppress! What conceivable role can hate-mongering play in the
lofty deliberative work of a ruling people? The answer to this
question depends upon the answer to another question: Is it not
precisely in those areas of human conflict and disagreement that
matter the most of all to us, that feelings run highest and form
an inextricable element of contending expressions? Or, to put it
more bluntly: Who said the deliberative work of a ruling people
was going to be "lofty"? The discussion of politics and religion
is excluded from genteel barber shops precisely because such
subjects are guaranteed to bring forth heartfelt expressions
which are inconsistent with easy fellowship and the presence of
straight razors. And if you don't think that race and creed are
located in the heartland of contentious concern, ask your barber.
The contributions of "the People" (remember us?) to the rather
anarchic business of a country thinking out loud simply cannot be
limited to the controlled prose of academic journals, without
being substantially censored. Though it may be regrettable, it is
nonetheless true that hatred is a garden-variety emotional
posture of persons who are engaged, heart and soul, in the
business of disapproving. A case in point: in a recent issue of
the _New York Review of Books_, there was a caricature, by David
Levine, of Prime Minister Botha of South Africa. Botha is
depicted by Levine as a glum visage nestling under the helmet of
a Nazi soldier. Would it be going too far to suppose that Levine
was expressing disapproval of Botha's policies that was far
enough up the scale to count as hatred? And were those Afrikaners
represented by Botha linked, with him, to those features of
totalitarianism that the hateful shape of that helmet symbolizes
for us? Was Levine promoting hatred of persons or of policies?
Are persons and their policies easy for us to distinguish when
our deeply-felt antipathy is aroused? And what if Levine had
plunked his hate down on someone else? Yasser Arafat. A
caricature of a Palestinian. Or, if that doesn't grab you . . .
Ariel Sharon. A caricature of a Jew. Moral, racial, and religious
sensibilities are prodded and affronted by such expressions, and
the drive to rejoin and rebut is naturally transfigured into the
drive to punish by elimination and suppression. But the proddings
of our democratic sensibilities (never natural, always the tender
creatures of assiduous cultivation) must tell us that we cannot
choose to protect or punish expressions by counting up the
numbers of the oxes that are gored, or by attending to their
colour. For if that is our policy, we are clearly foreclosing
public expression on matters that belong on the agenda of those
who rule.

A democratic people that is self-conscious about its project of
self-government cannot take refuge in legal instruments of
censorship and repression when its way of thinking is threatened
by public expressions or racial or religious hatred. It cannot
delegate to either its legislative or judicial agents the related
tasks of judgement and engagement that the continuing presence of
hateful speech imposes upon it. And judge and engage we must! The
insistence of civil libertarian that we provide political freedom
even for the ideas of Keegstra and Zundel, is not to be equated
with any soft-headed notion of general tolerance. A commitment to
the protection of free expression is not a program of glad
suffering of fools and foolishness. We must all, as both ruler
and as individuals, live lives of judicious intolerance for
hateful ideas and expressions. It is, of course, tiresome to
engage the thin- witted and their noisome ideas, and it is
irksome to realize that there is no respite from this duty to be
hoped for. Both experience and reason concur, however, in
recognizing that only such a program of democratic responsibility
can be at once effectual in changing minds (slowly, oh so slowly)
and consistent with our recognition in one another of a collegial
identity.

Even those who hear all of this and own the general force of it,
often have a special objection to make in connection with cases
such as Keegstra's and Zundel's. These two men have taken into
their mouths one of the most horrific and significant elements of
the Jewish experience and made it filthy with a denial of its
very existence. The "idea" that the Holocaust did not occur is so
palpably wounding that it is arguable that its expression stands
apart from other thoughts and words in a class all its own. Here, 
it is objected, is a special thought which demands, even if no
other thought does, formal repudiation by the State. No other
reaction, it is argued, can begin to restore the balance of our
senses; no lesser response could reaffirm, and hence at least
partly restore, our sanity. I have no right to speak of the
Holocaust. I am not a survivor; I am not a relative or friend of
one of the murdered; I am not a Jew. Nevertheless, I must, as
must all morally alive persons, struggle to understand what the
lesson of the Holocaust is. If we don't let the world teach us,
the world will teach us a lesson. But what were we taught? What
must we grasp in order to avoid being taught another lesson? This
is too huge a question to be handled in an adequate way here, but
let me identify at least one misinterpretation of the oracular
voice of history.

Proponents of this interpretation hold that the Holocaust teaches
us that we must not be wholehearted in our commitment to the
project of self-government. We must not trust the uncensored,
unobstructed expression of thoughts and ideas that is the mark of
a people who rule themselves. We must, in order to forestall evil
actions, forestall at least some evil thinking and saying. We
have to draw the line somewhere, and those who remember what
happened will choose to draw it short of the historical revisions
offered by Jim Keegstra and Ernst Zundel. This is not the lesson
of the Holocaust -- and on this point I have a right and duty to
speak as a citizen.

Before the Nazi deluge, Germany had a system of hate propaganda
laws that were far broader and more strict than those of the
Canadian _Criminal Code_. Prosecution of anti- Semitic
expressions was initiated, fought, and carefully reported by the
Zentralverein Deutscher Staatsburger Judischen Glaubens (Central
Union of German Citizens of the Jewish Faith). The records of the
Zentralverein reveal that over 200 prosecutions of anti- Semitic
propaganda went forward over a period of about 15 years, and of
these, about 10 percent were regarded by legal staff of the
Zentralverein as objectionable in the sense that they ended in
verdicts that were either absolutely unjust or too lenient. This
means that, by their own standards of success, the German Jewish
community enjoyed a success rate of about 90 percent in
prosecuting anti-Semitic insults. In at least one reported case,
a street conversation between two persons that was overheard by a
Jew was the basis of a prosecution. Nor was the scope of the
prosecutions limited to small fry: Joseph Goebbels was convicted
twice -- sentenced once to six weeks imprisonment and once to
three weeks -- for insulting Bernard Weiss, a Jewish deputy
police commissioner in Berlin; Julius Streicher and Karl Holz,
editors of the Nazi newspaper _Der Sturmer_, were convicted and
sentenced to prison terms of four months and one year
respectively. It is true that some managed to stall long enough
to avoid actual imprisonment, and that some few members of the
judiciary were sympathetic to the defendants, but in general both
the judiciary and the German people acceded to a remarkable
campaign on the part of German Jewry to use the power of the
State to punish anti-Semitic propaganda.

The point of this story is not that the work of the Zentralverein
was a failure. The point is that the success of the prosecution
of anti-Semitic propaganda and insults was of that tragic kind
that we term self-defeating. The prosecution become,
unsurprisingly, a sustained public drama that fed -- though most
certainly did not inspire -- the emerging mythologies of Jewish
conspiracy and Aryan martyrdom. The role played by these myths in
the developing insanity of fascism does not need to be recounted
here.

It would be stupid to pretend to discover the cause of the
Holocaust in the work of the Zentralverein. It would be equally
idle, however, to represent a program of censorship as the weapon
to use in the pacification of racist minds. In fact, if history
has any practical lesson to offer in this connection, it is that
minds and ideas -- evil or otherwise -- offer a protean
resistance to repression. And when we consider the forms of
repression that can imaginably be embraced by a democracy (our
hate propaganda laws, for instance), it is difficult to foresee
their use producing any result other than the provision of a
public focal point for minds and ideas that positively thirst for
publicity and a sense that they belong at the centre of things
rather than at the edge.

The history lesson that bears remembering now is that the failure
of German democracy was, most emphatically, not attributable to
German resistance to the control of hateful expressions. German
democracy failed because the citizens of the Weimar Republic did
not take responsibility for the course of their politics. They
disengaged; they stood by; they waited for direction; they forgot
that as self-governing women and men they must always think and
live the lives of rulers. Their acquiescence to censorship of
hate propaganda was not an anomaly; it was a symptom of their
general conditions of readiness to be ruled. And they got their
ruler . . . .

In fact, because of the heart-stunning scale of the evil of those
who came to rule in Germany, it can be said that we all "got" the
Nazis. They provided us with a lesson in unbuttoned enthusiasm
for thought and speech control that has made the swastika the
emblem of all those whose politics run to the repression of minds
and ideas. Millions died in the successful struggle to defeat a
Germany gone mad. Many thousands of Canadians died, a significant
proportion of them in the belief that they were making the world
"safe for democracy". Those words (offered first by President 
Wilson) have been, as we all know, made sour for us by our
powerful neighbours, but they still mean now what they meant
then. They meant "safe" in the sense of "possible again". We can,
just possibly, still take seriously our commitment to govern
ourselves. We shall have to do and bear much in the process --
not the least of which is the determined provision of political
freedom not only for the thoughts that we love, but also for the
thoughts that we hate. And as the great teacher put all spiritual
temporizers in their place: "If not now, when?"

B.C. Civil Liberties Association
425 - 815 West Hastings Street
Vancouver, B.C.
V6B 1B4

E-Mail: BCCLA@mindlink.bc.ca
Phone: (604) 687-3013/2919
Fax: (604) 687-3045
 
Kay Stockholder, President
John Westwood, Executive Director
Murray Mollard, Policy Director

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