Ed Morgan: Fight Bad Speech With Good Speech

A former Canadian Jewish Congress president admits he was wrong to champion ideological censorship
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Anti-Israel students clash with
police during a protest against
the visit of former Israeli prime
minister Benjamin Netanyahu
to Concordia University in 2002.

In recent months, I have been invited to participate in two conferences, one put on by the Ontario Bar Association (OBA) and the other by Osgoode Hall Law School. Both are squarely in my fields — the former dealing with freedom of speech and human rights law, and the latter dealing with law, democracy and the Middle East conflict. I was pleased to be invited — what more does a professor want than to pontificate to audiences in his field? My problem is that each of these conferences has demonstrated that, contrary to my preferred self-image, I can occasionally be wrong.

The OBA’s conference, which explored the recent human rights case against writer Mark Steyn and Maclean’s magazine, showed that my views on the regulation of hateful speech may have been misguided. The Osgoode Hall conference, which posed the question “Israel/Palestine:One State or Two?” showed that my faith in rational dialogue and academic debate may also have been misguided.

Let me examine each of them in turn.

A lawyer from the OBA called me early in the fall term to invite me to speak on a panel composed of myself and another law professor who is a respected board member of the Canadian Civil Liberties Association. My colleague was to advocate the position of free speech for which her organization is well known, and I was to advocate for the curtailment of prejudicial speech, presumably (although this was not said to me directly) because of my long service with the Canadian Jewish Congress (CJC) and the human rights positions for which that organization is well known. The event was to be moderated by former Toronto mayor and chair of the Ontario Human Rights Commission, Barbara Hall.

The subject of speech has hit me hard over the past few months. My legal career began with the issue — the first public interest case I ever worked on two decades ago was the prosecution of Alberta teacher Jim Keegstra, when I was privileged to work under John Laskin representing the CJC. I was national legal counsel of CJC by the time the federal human rights commission came to grips with Holocaust denier Ernst Zundel, and I was national president of CJC when the organization put its convictions to work supporting deportation proceedings against Rwandan broadcaster and genocide propagandist Leon Mugesera. I have always taken seriously the admonition that the Holocaust began not with deeds but with words.

This past spring, I was asked to defend the leadership of Hasbara Fellowships at a discipline hearing at York University in Toronto. Hasbara is an activist Jewish student organization that decided, in the face of relentless anti-Israel events at York, to fight bad speech not with censorship but with more and better speech. Instead of asking for a ban on anti-Israel activities, they countered with strong pro-Israel events — often with a dose of in-your-face chutzpah. Fighting bad speech with

good speech has turned out to be the right way to go, and I’m happy to say that we’ve had some legal success with the strategy.

The complaints filed against Hasbara allege that the very image of the blue-and-white Israeli flag appearing on the group’s pamphlets is hateful and must be banned. The complaints filed against Maclean’s allege that the very discussion of radical Islam contained in that publication is hateful and must be banned. That anyone can take either complaint seriously shows how dangerous the suppression of speech in the name of anti-hate can be. Once we go down the road of censorship for the sake of promoting tolerance, we may soon be standing at the heights of intolerance. Having learned that the Keegstras and Zundels of yesteryear have apparently morphed into the Mark Steyns and the Hasbara students of today, I had to decline the OBA’s conference invitation.

Then came an invitation from Osgoode Hall to sit on an advisory committee for a conference dealing with the question: “One state or two?”

I harbour no illusions about the actual debate. The idea of “two states” embraces Jewish and Palestinian self-determination and is at the heart of any potential peace process, while the notion of “one state” is deployed by Israel’s enemies as a rhetorical tactic to undermine the Jewish state. But I told myself that we should at least engage the debate rather than shut it down. With a view to being one of the few pro-Zionist members of a background advisory committee, I decided to fight the fight from the inside, trying to ensure that the conference would be one of engagement rather than polemics.

The core group that thought up the conference is composed of perfectly good scholars who hold a genuine interest in debating alternative forms of democracy in the Israeli and Palestinian context. But the guests are starting to outnumber the hosts, and the cynical edge of the “one state” crowd is showing as the proposed speakers start to bare their anti-Israel teeth.

In the first place, committee members have been proposing speakers who are behind such publications as the Electronic Intifada. This is a Web site whose politics are, as the name suggests, thoroughly antagonistic to everything Israeli. In fact, it is so emphatic in its opposition that a recent lead article denounced Paul McCartney for the sin of playing a concert in Tel Aviv; politics and policies weren’t the problem, the Israeli audience was.

Worse than that, some committee members have suggested bringing in speakers whose credentials boast of their prominence in the “boycott Israel” campaign. Here, even the most ardent freespeecher would have to draw the line, if for no reason other than out of self-respect. Could anything undermine the credibility of an event that bills itself as one of dialogue and engagement more than to try to dialogue and engage with boycotters?

For a conference such as Osgoode’s to succeed, one needs speakers who genuinely grapple with the issues of political and legal theory and do so out of good faith, not cynicism. Personally, I have proposed keynotes — former Israeli chief justice Aharon Barak and novelist Amos Oz among them — who will demonstrate that having a distinctively Jewish national character does not undermine the possibility of liberal democracy, and that when it comes to the “two state” model, the Palestinians would do well to try to emulate the Israeli combination of national distinctiveness and a liberal ethic.

If the conference turns into a sophisticated exploration of issues of nationality and democracy, it will have been a worthwhile endeavour to engage from within. But if the event continues the trend of giving boycotters a platform for anti-Israel grandstanding, I will not be there.

Ed Morgan is a Professor of Law at the University of Toronto and is a contributor to “Postcolonial Theory and the Arab-Israeli Conflict

Ed Morgan: Fight Bad Speech With Good Speech

A former Canadian Jewish Congress president admits he was wrong to champion ideological censorship
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