The Globe & Mail
Friday, October 17, 1997
page A26

Bad law goes on line

Of course he's wrong. Ernst Zundel - Holocaust denier, Jewish conspiracy theorist, white supremacist - is a classic delusional case: he believes in things that are demonstrably false. As for Canadian society, it suffers from a delusion of its own: that the best way to deal with the Ernst Zundels of the world is to pass a law and throw them in jail, rather than debating with them or ignoring them. This mistaken belief is perhaps not so pernicious as Mr. Zundel's, but it is, troublingly, considerably more widespread.

Belief in the virtue and necessity of prosecuting someone with whom we disagree, and with whom all people of good sense should disagree, explains why Ernst Zundel is before the courts, yet again. This time he's accused of spreading hate via the telephone lines, by means of a California-based Internet site. Telephonic communication can be, by an unfortunate act of Parliament, regulated under the Canadian Human Rights Act by the Canadian Human Rights Commission. The body cannot vet books or magazines or newspapers, but it now alleges that material published on line is within its reach. We hope the courts will decide otherwise. And Parliament could, of course, amend the law.

The big issue, however, is not whether speech can or should be regulated on the Internet. The answer is an unqualified yes: if there are illegal things on the Net - child pornography, for example, or a death threat - they were put there by somebody. That somebody is subject to the laws of the land. A death threat in cyberspace is a death threat all the same.

Though the breadth and complexity of the Internet can be a challenge, it would be absurd to argue that that which is legal in virtual reality could at the same time be illegal out here in real reality.

This latest prosecution of Mr. Zundel is not, therefore, misguided because the Internet should somehow be accorded greater freedom than other forms of speech. It doesn't matter where he spreads his wrong-headed, hateful message: whether on a street corner, in a newspaper, or on a Web site, what he has to say is wrong. It should also be legal. If free speech is to mean anything, then we must treat our country as a true marketplace of ideas, where Mr. Zundel is free to hawk his wares - and Canadians are free to decline them.

The Canadian marketplace does not, unfortunately, work precisely like that. Though the Supreme Court struck down the so-called false-news section of the Criminal Code, under which Mr. Zundel was prosecuted in the 1980s, it upheld the hate-speech provision of the Code. We believe that this law is in error, but in any case it is not being employed against Mr. Zundel. Last year, Ontario's Attorney-General dropped charges against Mr. Zundel under the hate law, citing lack of evidence. This Human Rights Act prosecution is a new backdoor that should never have been opened.

Aside from our principled objections to prosecutions of hatemongers on free-speech grounds, there are also some very practical considerations weighing heavily in favour of the marketplace-of-ideas approach. Consider: Were it not for the two decades worth of judges and juries and Crown prosecutors thrown at Mr. Zundel, who would have ever heard of him? His ideas would go the way of other products nobody wants, rotting in silence.

Instead, thanks to the forces arrayed against him, Mr. Zundel is offered, again and again, a soapbox from which to preach his own bitter lunacies.

His name, which would be thankfully unknown to Canadians were it not for repeated attempts at prosecution, has appeared in 483 different articles in The Globe and Mail over the past 20 years. Absent the prosecutions, Mr. Zundel wouldn't be newsworthy.

Enough already. Leave this little man alone. Give him that which he dreads most: a long, cold silence.

Copyright © 1997 by The Globe & Mail. All Rights Reserved. Reprinted with permission.