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Human rights wrongs

By Jeremy Lott
web posted October 14, 2002

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.

Jeremy Lott was the 2002 Burton C. Gray Memorial Intern for Reason magazine. This article originally appeared in The American Prowler.


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