The Toronto Star
Thursday, November 6, 1997
page A29

Culture, not the law, should muzzle Zundel

by A. Alan Borovoy

Some people will go to great lengths -- understandably but unwisely -- to muzzle Nazi sympathizer Ernst Zundel.

First, they laid a charge of spreading false news against him. That produced a Supreme court decision ruling the false news section unconstitutional. More recently, there was an attempt to nail him under the anti-hate section of the Criminal Code. But that requires the consent of the attorney-general and, in any event, the police are reportedly less than enthusiastic about such investigations.

The latest effort -- undertaken by the Toronto mayor's committee on race relations and activist Sabina Citron -- is a complaint under the section of the federal Human Right Act prohibiting telephone "hate messages". Since there is evidence that Zundel currently operates a Web site on the Internet and since access to the Internet is activated telephonically, the complainants are hoping that his action will produce success. Apparently, the Canadian Human Rights Commission has been persuaded: it has set up a human rights tribunal to decide the issue.

It's hard not to sympathize with the complaint. After all, Zundel's brand of Holocaust denial qualifies as one of the most malevolent obscenities ever inflicted on the Canadian public. As one writer so eloquently declared: It wasn't enough for yesterday's Nazis to extinguish 6 million Jewish lives; their modern sympathizers seek to extinguish 6 million Jewish deaths.

But the problem is that the applicable section of the Human Rights Act represents a particular danger to freedom of speech. The section targets statements that are "likely to expose" anyone to "hatred or contempt" on grounds that include race, religion, nationality, and ethnicity. Unlike even the anti-hate section of the Criminal Code, this provision does not require a guilty intent and there is no defence of truth or a reasonable belief in the truth of the statements at issue.

On this basis, truthful Internet discussions of racial, religious, or ethnic warfare in Bosnia, Rwanda, or Northern Ireland could very well run afoul of the federal Human Rights Act. Couldn't such discussions be seen as "likely to expose" Serbs, Croats, Muslims, Hutus, Tutsis, Catholics, or Protestants to hatred or contempt? Or, suppose Daniel Goldhagen's recent book, "Hitler's Willing Executioners", was posted on the Internet? Since the book argues that German people by the thousands participated eagerly in the Holocaust, might it not be said that the book is "likely to expose" a whole generation of Germans to hatred or contempt? In view of how much anti-Semitism existed in Nazi-occupied Europe during the war, it might, therefore, be unlawful simply to tell the truth about the Holocaust over the Internet.

In a democratic society that values freedom of speech, the goal with the likes of Ernst Zundel should be not to muzzle them, but to marginalize them. The law should let them speak, but the culture should ensure that they lack the influence to persuade.

Fortunately, in our society now, Zundel is already devoid of influence: He amounts to little more than a trivial irritation. Although he may have become well-known, his notoriety is more attributable to the efforts of those who seek to silence him than to those who wish to follow him. Ironically, if it had not been for Zundel's enemies, few people would ever have heard of him.

In any event, with or without the publicity, his Holocaust-denying invective has assured him the universal contempt of Canadians.

While he must be ever vigilant about such characters, they do not warrant the serious risks to freedom of speech that are triggered by the current case.

A.Alan Borovoy is general counsel for The Canadian Civil Liberties Association.

Copyright © 1997 by A. Alan Borovoy. All Rights Reserved. Reprinted with permission.