It’s always wrong to criminalize speech

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Demonstrators demanding a ceasefire in Gaza often chant: “From the river to the sea, Palestine will be free.” The river is the Jordan, the sea is the Mediterranean. Between them lies Israel. To Israelis, the implication is clear. The demonstrators are calling for the eradication of their state.

Israel, of course, was founded in the aftermath of a campaign to eradicate the Jewish people. So “the river to the sea” is a hateful slogan, deeply offensive not just to Israelis but to many Canadian Jews. Should the demonstrators be banned from saying it?

Not very long ago, most people would have said: certainly not. The right of free speech is precious and keeping it means tolerating even the most obnoxious forms of expression. But times and attitudes are changing. Free speech is under attack both from the left and the right, both abroad and at home.

With wars raging in Ukraine and Gaza and political divides deepening, wounding words are being hurled back and forth in the street and online. Many Canadians would like to see a crackdown on extreme speech, arguing that it is poisoning the national discourse and fuelling a storm of antisemitism, Islamophobia and other prejudices.

Authorities are responding. In Toronto, York University threatened to withdraw its recognition of student groups that called the murderous Oct. 7 attack on Israel “a strong act of resistance” by the Palestinian people. Later last fall, police charged 11 people with hate-motivated mischief after protesters slapped posters on a downtown bookstore accusing its Jewish founder of “funding genocide.”

Now Ottawa is stepping in. A new online harms bill from the Liberal government would stiffen penalties for hate offences. Advocating genocide would carry a maximum sentence of life in prison. Other forms of hate propaganda would bring up to five years behind bars, up from the current two. The Canadian Human Rights Commission would regain the power to hear complaints about those who post hate speech online.

The dangers are obvious. Who decides what hate is? How do authorities differentiate between hateful, bigoted speech and angry passionate speech?

You could easily argue that calling for a free Palestine from the river to the sea is calling for genocide – a Palestine not just free, but free of Jews. You could just as equally argue (as today’s protest leaders often do) that it is merely backing the right of a dispossessed people to their historical homeland.

Were those who vandalized that Toronto bookstore fomenting hatred by targeting its Jewish founder or were they just saying it is wrong to support Israel and its armed forces when the war in Gaza is killing thousands?

Charging someone for something they do is one thing: vandalizing a store, smashing a window, blockading a street, hitting an opposing protester. Charging them for something they say is another.

Criminalizing speech is always wrong. With the exception of direct incitement to violence – burn that synagogue, kill that politician – there should be no law against any form of expression. No Canadian should ever go to jail for stating an opinion, however hateful. To play on a current phrase, the merely awful should never be unlawful.

There are other things we can do to combat hate speech: denounce the haters, refute their arguments, challenge the misinformation they spread, stage a counter-protest; or simply ignore them, letting them spout their nonsense into the empty air. What we should never do is haul them into court for saying words. The danger to our democratic system, which owes its continued health to open argument and free exchange, is too great.

I know that this view is unpopular at the moment. It is hard to defend the right to untrammelled expression when the online world is teeming with trolls and the streets are full of people saying vile things. But now is precisely when it needs defending.

Rights of all kinds come under pressure when societies are facing traumatic and frightening events. Canada has experienced this in the past, from the Red Scare of 1918-19 to the October Crisis of 1970. At such times, the security of the nation seems to trump the right to speak freely. We forget that one depends on the other.

The right to speak out is not just an indulgence a free society grants its members. It is the underpinning of their freedom and security. Now would be a good time to remember that.