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The right to be offensive

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A premature cheer must have risen from Canadian newsrooms last week.

The B.C. Human Rights Tribunal laid down a ruling in the case of El-Masry and Habib v. Rogers Publishing and MacQueen. The case, which dealt with a fascistic attempt to control the content of a national magazine, ended in partial triumph for the latter when the HRT dismissed it.

It was a battle won for free speech, but the war is far from over.

The case dates back to Oct. 23, 2006, when Maclean’s published an excerpt of a book by one of its columnists. The article, titled “New World Order” by conservative commentator Mark Steyn, was an excerpt of his book America Alone, whose ludicrous thesis claimed that Muslims, by demography alone, were well-placed to mount a global war on secularism. His reasoning was that enough Muslims are “hot for jihad” that they could mount a sizable battle.

The article caught the eye of Mohamed El-Masry, president of the Canadian Islamic Congress, an organization that calls itself the “independent voice” of Canada’s Muslims. This was a man who had once gone on television and claimed that all Israelis over the age of 18 were legitimate targets of terrorism. And needless to say, he didn’t like Steyn’s article.

Through an unclear chain of events, he found a disciple in fiery, naïve law school graduate Khurrum Awan who, together with three colleagues, arranged a meeting with Maclean’s at which he claimed he asked for a rebuttal in the magazine written by a “mutually-acceptable” author.

It later turned out that Awan wanted Maclean’s to donate money to a charity and that he demanded unedited fiefdom over space in the magazine and the cover art. Ken Whyte, the magazine’s editor, said he’d rather go bankrupt.

What followed was a series of events that provoked the ire of journalists across Canada. Awan filed three separate human rights complaints on behalf of El-Masry against the magazine in three separate jurisdictions — the Canadian Human Rights Commission, the Ontario Human Rights Commission and the B.C. Human Rights Tribunal, all of them entities of respective national and provincial governments.

Each complaint alleged that the article exposed Muslims to hate. The first two commissions threw out the complaint, while the third let it go to a hearing.

Let’s look at it this way. Say Pique wrote an opinion article saying that Whistler-Blackcomb is a tyrannical organization seeking to dominate the world by hiring as many people as possible. By Awan’s logic, Whistler-Blackcomb could have charged us with a hate crime, and the company could have used a human rights commission to prosecute us.

The effect of Awan’s complaint is that he has made it possible to prosecute free speech. Any opinion printed in a newspaper, magazine or otherwise can be taken to one of these commissions, just as Awan did.

The B.C. Human Rights Tribunal exonerated Maclean’s, but its decision, instead of saying its role isn’t to prosecute free speech, in fact set out a test by which the tribunal will be able to hear such complaints in the future.

On page 22 of her decision, tribunal chair Heather MacNaughton sets out six things to consider when judging an article: the vulnerability of the target group; the degree to which the publication contains hateful words or “reinforces existing stereotypes”; the content and tone of the message; the social and historical background for the publication; the credibility likely to be accorded to the publication; and how the publication is presented.

That means if I write an opinion in this paper that’s critical of a particular group, and it meets all the criteria above, then I can be prosecuted for a hate crime by a government entity that should have no jurisdiction over the content of this newspaper.

All journalists should be scared of this. A process has been set down by which anyone writing for Pique , the Question , the Vancouver Sun or the Globe and Mail can be taken to these commissions for writing an opinion that another sees as hateful. Normally journalists should be accountable to their editors alone — now, if taken to a tribunal, we’re to be held accountable by our government.

Everyone knows that free speech is a limited value in Canada. Dean Steacy, an investigator with the Canadian Human Rights Commission, has gone so far to say that free speech is an American concept and he doesn’t give it any value.

That’s something free speech advocates should be awfully scared of, that people have avenues to take us to tribunals and that a government entity has a clear avenue for prosecuting us. It gives new meaning to the concept of limited free speech — for anyone taken to these tribunals, it hardly exists at all.

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