Editor’s note: An abridged version of this article appeared in the Feb. 24 2006 edition of Lawyers Weekly.

By Faisal Kutty

“I don’t know of anything more important than freedom of expression,” said former Supreme Court Justice Peter Cory, when commenting on the Court’s 1991 decision to uphold Jim Keegstra’s conviction for willfully promoting hatred against Jews.

The offensive cartoons of the Prophet Muhammad originally published by the Danish newspaper, Jyllands-Posten, have now ignited global interest in the subject. Despite death and destruction, some free speech advocates have characterized this as a defining battle. It has now become a clash of extremes with both sides reeking of double standards. Muslim extremists — some of whom regularly insult others — and dictatorships are trying to claim the moral high ground by defending the sacred in clearly non-sacred ways. An equally hypocritical extreme in the West is pretending there are no limits and that subjective restraint is not exercised daily.

Four media outlets, in addition to a student newspaper, have entered the fray, publishing or promising to show the controversial cartoons. The extreme right wing magazine, the Western Standard, and the Jewish Free Press ostensibly showed support for press freedoms. As well, TVO and the Quebec daily Le Devoir used the cartoons in the context of explaining the controversy. There have been at least half-a-dozen protests throughout Canada. More than 4,000 people attended a peaceful rally at Toronto’s Queen’s Park on Feb. 19. The Canadian Islamic Congress and the Islamic Supreme Council of Canada also filed complaints against the Western Standard and the Jewish Free Press, under the Criminal Code and human rights legislation. Many of the nations where these cartoons have been published have laws against anti-Semitism — and rightly so. In fact, Italian prosecutors recently announced charges against eleven individuals who displayed Nazi symbols during a football game. Meanwhile, media in Italy have reproduced the cartoons with impunity.

Denmark, too, has limits. Its laws prohibit blasphemy and expressions that threaten, deride or degrade others on various grounds. The offending newspaper, Jyllands-Posten, even refused to publish caricatures of Jesus in 2003 because they would “offend.” Of course, these limits and laws are viewed through political, social and philosophical lens. As a result, a public prosecutor came to the conclusion that the Danish cartoons did not violate any laws.

Freedom of expression is alive and well in Canada, but cannot be used as a carte blanche. We have restrictions. We have libel laws and censorship of various forms in keeping with “community standards.” Moreover, criminal and human rights legislation also restrict free speech in the interest of protecting minorities and maintaining harmony. Canada’s Criminal Code proscribes statements that incite or promote hate. Convictions have been few and far between because of the specific intent required, but it has withstood constitutional challenges. Under Canadian law, it is an offence to incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.” To be convicted, an accused must have communicated statements in a public place and ought to have known that the incitement was likely to have brought about a breach of the peace.

Though it can be argued that the cartoons, in and of themselves, may not be caught under law, there are strong grounds to lay a charge against those who republish them now. The news value has now diminished. Secondly, at least two of the cartoons, especially the one showing the prophet with the bomb and the one calling for an end to suicide bombings because of a shortage of virgins, suggest that Muslims are necessarily and inherently evil (this is a reasonable interpretation), because a Muslim by definition tries to emulate the prophet. The issue for most is not whether the prophet should be pictured. It is his portrayal, essentially, as a poster boy for al-Qaeda and by extension, Muslims in general, as violent and therefore worthy of hate.

Thirdly, given the fact that Muslims, both observant and non-observant, have made it very clear that these are offensive and violate their dignity as a community (granted this is an alien notion in our individualistic society), republishing them is therefore intentionally provocative and can promote hatred.

As well, it can be reasonably argued that the intent behind their publication in the current climate will serve no real free speech purpose and may in fact expose Muslims to hate. Lastly, I believe that the full context of its initial publication can shed some light on the intent behind its continued publication. They were published against a backdrop of ever increasing levels of Islamophobia and racism, where even the Queen of the land had called for the demonization of Muslims. The following quote from the South African newspaper the Mail & Guardian is illustrative: “Further, they were published in Denmark, which has been named by the European Union Commission on Human Rights as the most racist country in Europe. It has witnessed a large number of attacks against Muslims, some resulting in the killings of Muslim immigrants. And, they were published by a newspaper with historical ties to German and Italian fascism and which called for a fascist dictatorship in Denmark. Jyllands-Posten is also anti-immigrant and anti-Muslim. Within such a context, these cartoons are clearly hate speech. Their publication is an ontological attack against the foundations of Islam.” Indeed, some commentators have argued that given the foregoing, the aim of the cartoons was nothing short of inciting hatred against “the terrorist within.”

Nonetheless, Muslims in Canada have protested responsibly. Editors in the country must reciprocate and exercise their rights tempered by civic responsibility. The community will also be looking to the attorney general to enforce the laws against those who cross the line, joining the bandwagon of hate in the name of freedom of expression. As Justice Cory pointed out more than 15 years ago, laws against hate were justified because inciting hatred can be “as damaging as actual physical violence.” “Limits on free speech,” said the justice, “must be considered as much as the right itself.”

Amen.
Note: Faisal Kutty is a lawyer with the firm of Kutty Syed & Mohamed. He is also a board member with the Canadian Council on American Islamic Relations and general counsel for the Canadian Muslim Civil Liberties Association.

Tags: Cartoons, Free Speech

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