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France's lower house of parliament approved a bill on Thursday making it a crime to deny Armenians suffered genocide at the hands of Ottoman Turks...

The legislation calls for a one-year prison term and 45,000 euro ($56,570) fine for anyone denying the 1915 genocide -- the same sanction as for denying the Nazi genocide of Jews.

"Does a genocide committed in World War One have less value than a genocide committed in World War Two? Obviously not," Philippe Pomezec, a parliamentarian with the ruling Union for a Popular Movement (UMP), said during the debate.

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Pamuk recently went on trial for insulting "Turkishness" after telling a Swiss newspaper nobody in Turkey dared mention the Armenian massacres. The court eventually dropped charges.

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In this case, he was charged for accusing Turkey of supressing the opposite of what France is trying to supress - kind of a meta-truth-legislation.

Does anyone think this is a good type of legislation? Anti-Holocaust revisionist laws are on the book in several European countries.

Assuming the position supported by the French bill - that the genocide happened - is true, does that make the French bill less oppressive than any attempts by Turkey to supress the false position? Assuming Turkey's position is true, is there something worse (or better) about supressing false statements about one's own country? And would France be doing something worse by trying to coerce people to espouse slanderous positions via the criminal law?

In other words, are such laws less oppressive when the banned statement is truly false, and does the type of error matter in this evaluation?

My first reaction is to call all such bills horrible and enemies of the truth, even when the opinion being mandated is true.

But I got interested in what, exactly, is the type of wrongdoing when the bill not only censors but also causes propogation of untruths.
 

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Posted by Corwin (Member # 5705) on :
 
I read an article about it yesterday, I think. Pretty disturbing. If I remember correctly the "insulting Turkishness" law is a little bit older. It just "didn't apply" in that case.
 

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Posted by Dagonee (Member # 5818) on :
 
The "insulting Turkishness" law is more inherently scary, because it's vagueness allows it to be used in a far more arbitrary manner and to supress a far greater range of expression.

But that's far afield of the specific aspect I'm trying to analyze. For purposes of the comparison, assume there is a specific law in Turkey that just bans denying that the Armenian genocide didn't happen.
 

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Posted by Corwin (Member # 5705) on :
 
Too many negatives... :explodes:
 

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Posted by MrSquicky (Member # 1802) on :
 
These countries have a different perspective than we do. I'm not sure that I can say that they are obviously wrong.

There are certain types of speech that we consider criminal as well. For example, threatening the life of the President. It seems possible to draw an analogy between this and say denying the holocaust.

Both could be considered threats serious enough to take action on. Obviously, the Presidential example is more clear cut and immediate, but there could be a similar type of thinking.

On a different note, it is possible to make a judgement that certain types of people should not be welcomed in your society. Germany, for example, really doesn't want Neo-Nazis hanging around and uses their laws to enforce this.

I don't know that I agree that the benefit outweighs the cost there, but I don't think that it is by any means a clear cut "our way is better" situation.
 

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Posted by Stephan (Member # 7549) on :
 
I have mixed emotions. Part of me wants the idiots to be heard, so everyone will know how stupid they sound. The other part knows that other idiots will be the ones actually listening.
 

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Posted by Dagonee (Member # 5818) on :
 
What factors would you use to decide if such a law is good or bad?

Some I can think of:

1.) Whether the banned statement is true.
2.) Who is harmed by the statement.
3.) How important is it to make the banned statement (which could be analyzed in dozens or hundreds of ways).

If the overall goal of making undesireables unwelcome in society is acceptable, then none of these factors are necessarily dispositive.

I'm hard-pressed to see the difference in these laws and the homosexuality laws as OSC advocates them. It seems that the judgment of the law itself under this framework would be based on the desirability or undesirability of the underlying behavior. And "undesriablity" must be somehow defined. The ultimate definers will be the government. In the French case, the article makes it clear this is a driect expression of a particular interest groups definition of desirability.

Also, neither bans the underlying belief/behavior but rather merely attempts to force such belief/behavior out of public sight.
 

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Posted by Rakeesh (Member # 2001) on :
 
I heard about this on NPR..last week? This week? I forget when exactly. The coolest thing (I think) about the story is that the one man, an Armenian I believe, in Turkey who was threatened with this law said that if France passes it, one of the very first things he'll do is travel there and deny the genocide.

*sigh* This sort of ambiguity is what I get for listening to the news at work.
 

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Posted by The Pixiest (Member # 1863) on :
 
This is a bad law.

It's not like France is newly liberated from the ottomans and they have to worry about ottoman partisans forming resistance groups using the propaganda. (which was the case in germany with the nazis)

The purpose of this law isn't even to protect the feelings armenians. It's a political jab to keep Turkey out of the EU.

But even if it was to keep Armenians from getting offended, it would still be a bad law. It's not slander or libel. It's not directed at an individual. It's protected under free speech.

Do they pretend to have free speech in France?
 

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Posted by ketchupqueen (Member # 6877) on :
 
If they already have the Holocaust law I don't see that making this one should raise any additional issues, except that Turkey still officially denies it? Is that right?

I'm really slow today, does someone mind very slowly explaining to me how it's different?
 

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Posted by MrSquicky (Member # 1802) on :
 
OSC's objections to homosexuals appears, from his writing, to come in large part from beliefs that are demonstrably false and constitute forcing others to live according to his religion.

I don't know that this is adequately compared to banning people saying things that are false or making it illegal to be a neo-Nazi. While the structure of these situations are very similar, the underlying factors are very different.

It's like saying that there isn't a difference between laws against, say theft, and laws against not being a Christian or wearing the color green. The decision here isn't so much whether it's okay in general to consider certain behaviors undesirable, but whether there is a sound basis for considering specific behaviors as undesirable.

The decision of whether or not some group or behavior is undesirable should rest on as objective an expectation of harm as possible. The anti-gay crowd has consistently failed to reach this standard and their arguments have often turned out to be intellectually and/or ethically deficient.

Even assuming that they have demonstrated some solid points as to why it should be okay to throw gay people in prison, I don't think anyone except those from the furthest extreme is going to say that the case against gays is anything even approaching that against neo-Nazis. Though perhaps you disagree Dag, as you apparently don't see a difference between these laws.
 

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Posted by twinky (Member # 693) on :
 
I actually meant to start a thread on freedom of speech addressed particularly to Storm Saxon, because some time ago he and I discussed hate speech/genocide incitement laws here in Canada. I felt that I hadn't done a very good job of expressing my position and the reasons for it, but it recently came up on another forum and I went back through the judicial history. I found the seminal Supreme Court of Canada decision on whether Canada's hate speech law constitutes a "reasonable limitation" of the right to freedom of speech -- that is, whether the restriction is Constitutional. The whole thing was very interesting, and I had planned to start a new thread with some quotes from the decision.

If you don't mind, I would like to make that post in this thread instead, because in touching on the issues you raise in your first post I'll definitely want to make reference to what the law is here in Canada (and why).



Added: Rakeesh, I heard that on the CBC within the last two days, so I imagine you heard it this week.
 

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Posted by MrSquicky (Member # 1802) on :
 
Incidentally, I'm curious. Did I pull a neo-Godwin?
 

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Posted by Dan_raven (Member # 3383) on :
 
I find this uncomfortable for three reasons.

1) It is anti-free speech. Whenever a government starts limiting what you can and can not say, even under the most grand of reasons, it is dangerous. They are in truth trying to police what you can think, and that is never good.

2) It is French Cultural Imperialism. They are trying to enact a law in France to tell another soveriegn country--Turkey--how they should behave. (How would Frenchmen react if Turkey passed a law stating that any proclaiming that Joan of Arc was other than an insane child, they will be fined)

3) Its all a base political move to win the hundreds of thousands of French Armenian votes. Hypocracy is not an American political monopoly, despite the claims of certain French politicians.
 

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Posted by Dan_raven (Member # 3383) on :
 
Besides, what happens if we discover that, while the genocide was planned, the GSM (Giant Spaghetti Monster) gathered up all the Armenians and took them away to a far nicer, better irrigated, and much cooler and hip planet? THen would the law be one that demands we lie?
 

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Posted by Tresopax (Member # 1063) on :
 
If you believe in the value of free speech then these, including the law banning denial of Nazi genocide, are horrible laws. They make it illegal to express a political opinion - the exact opposite of the right to free speech.

And I think this new possible French law illustrates what's so dangerous about allowing such laws. If it can be illegal to deny Nazi genocide, it could be illegal to deny Turkish genocide. If it can be illegal to deny Turkish genocide, it could be illegal to deny all sorts of politically contraversial claims. And so on and so forth, until it is illegal to make political statements that a given ruling power doesn't want you to make.
 

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Posted by MrSquicky (Member # 1802) on :
 

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If you believe in the value of free speech then these, including the law banning denial of Nazi genocide, are horrible laws.

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Originally posted by Dan_raven:
Besides, what happens if we discover that, while the genocide was planned, the GSM (Giant Spaghetti Monster) gathered up all the Armenians and took them away to a far nicer, better irrigated, and much cooler and hip planet? Then would the law be one that demands we lie?

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OSC's objections to homosexuals appears, from his writing, to come in large part from beliefs that are demonstrably false and constitute forcing others to live according to his religion.

I don't know that this is adequately compared to banning people saying things that are false or making it illegal to be a neo-Nazi. While the structure of these situations are very similar, the underlying factors are very different.

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Part of OSC's perspective is that openly tolerating certain sexual activity will cause problems. I'm not sure what basis you have for assigning validity to one view of what will lead to bad results and invalidity to another.

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OSC's objections to homosexuals appears, from his writing, to come in large part from beliefs that are demonstrably false and constitute forcing others to live according to his religion.

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The decision of whether or not some group or behavior is undesirable should rest on as objective an expectation of harm as possible. The anti-gay crowd has consistently failed to reach this standard and their arguments have often turned out to be intellectually and/or ethically deficient.

Even assuming that they have demonstrated some solid points as to why it should be okay to throw gay people in prison, I don't think anyone except those from the furthest extreme is going to say that the case against gays is anything even approaching that against neo-Nazis. Though perhaps you disagree Dag, as you apparently don't see a difference between these laws.

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We're not talking making it being illegal to be a neo-Nazi, we're talking about it being illegal to say certain things that neo-Nazis say - whether the speaker is a neo-Nazi or not.

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On a different note, it is possible to make a judgement that certain types of people should not be welcomed in your society. Germany, for example, really doesn't want Neo-Nazis hanging around and uses their laws to enforce this.

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One big difference between this law and an anti-threat or anti-"FIRE"-in-crowded-theater law is that this law bans a particular viewpoint. The others ban particular effects of speech. That represents a significant jump in the manner in which speech is affected.

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I am.

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I don't think anyone except those from the furthest extreme is going to say that the case against gays is anything even approaching that against neo-Nazis. Though perhaps you disagree Dag, as you apparently don't see a difference between these laws.

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That's not really true though. The "Fire!" example is based not on the effects of the speech, but rather the probable effects of the speech. This wasn't passed by a bunch of psychics who knew what the effect would always be. You can make an argument that the ban on Holocaust denying et al. is at least partially focused on the probable effects of this speech.

I think such an argument would be incomplete and I agree that it's on a different level, but still the argument exists.

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I'm hard-pressed to see the difference in these laws and the homosexuality laws as OSC advocates them.

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Originally posted by Dagonee:
One big difference between this law and an anti-threat or anti-"FIRE"-in-crowded-theater law is that this law bans a particular viewpoint. The others ban particular effects of speech. That represents a significant jump in the manner in which speech is affected.

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Originally posted by MrSquicky:
If this:

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I'm hard-pressed to see the difference in these laws and the homosexuality laws as OSC advocates them.

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wasn't about the neo-Nazi laws and instead was only about the speech thing, then let me clear it up for you. OSC advocates using the law against a certain group of people because of the very fact that they belong to a certain group in order to assert that these people don't belong in our society. The speech laws are aimed at excluding a certain viewpoint, judged to be false, from being actively represented as true and is not about a passive group of people.

This difference is to me excedingly clear, such that I didn't see how you could not instead be talking about the laws I had just mentioned that were set up for the same purpose as OSC had with homosexuals. If that wasn't what you were talking about, I don't see how bringing up what OSC makes sense, but what I said is no longer necessarily a logical extension of your statements.

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Your explanation is accurate from an explicit legal standpoint, but not necessarily from a more generalized one. It is entirely possible to make a law based on what one perceives as the likely effects of something without codifying these effects into the determination of that crime, especially when the effects we're talking about are as potentially widespread and nebulous as would be in the case of denying the Holocaust or this genocide.

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But it's a different kind of argument entirely - "the class of actions described by X might lead to Y, therefore the class of actions described by X are now criminal" rather than "specific acts that have a likelihood of causing a specific instance of Y are now criminal."

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This is not because I think that they are obviously wrong, but because I very much don't trust the government to decide what sort of speech should or should not be protected.

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Exactly. It's this threshold that is crossed by the French law and not by the "FIRE" law.

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In America, it's illegal to make false statements about a person or company that a reasonable person might believe, and if so might cause the person or company in question harm.

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In America, it's illegal to make false statements about a person or company that a reasonable person might believe, and if so might cause the person or company in question harm.

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Your close. Slander (oral statement) and Libel (written statement) require that the false statment actually harm or injure someone, generally speaking, that the statment harmed or prejudiced the complainant's reputaion. Dag is right in that, unlike the issue under discussion in France, slander/libel are civil torts not crimes, and that you have to show a reckless disregard for the truth.

I'm reminded about a recent trend in which some states have passed laws protecting certain industries from slanderous/libelous statments. Texas, for example, and its beef industry. Remember when Oprah got sued in Texas for making some disparaging remarks about Texas beef. But the Texas cattlemen had to prove, but didn't, that they were actually harmed not just that they were insulted by Oprah.
 

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Posted by MightyCow (Member # 9253) on :
 
Thanks for the clarification, I'm not as up on law as I might like. It's an interesting distinction.
 

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Posted by twinky (Member # 693) on :
 
Okay.

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Originally posted by Dagonee:
What factors would you use to decide if such a law is good or bad?

Some I can think of:

1.) Whether the banned statement is true.
2.) Who is harmed by the statement.
3.) How important is it to make the banned statement (which could be analyzed in dozens or hundreds of ways).

If the overall goal of making undesireables unwelcome in society is acceptable, then none of these factors are necessarily dispositive.

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Canada, like the United States, has a constitutional guarantee of free expression. Our Charter of Rights and Freedoms guarantees freedom of expression, subject to such reasonable limits as are "demonstrably justifiable in a free and democratic society". In other words, we have free speech, but the state can limit it in reasonable ways. This may be contrasted with the absolute language of the First Amendment of the United States Bill of Rights, which states: "Congress shall make no law ... abridging the freedom of speech or of the press." The words of the Canadian guarantee acknowledge the state's right to limit free speech; the words of the American guarantee forbid the state from doing so.

Of course, we all know that the American Supreme Court has not interpreted the First Amendment literally. American rights, however absolutely stated in the Bill of Rights, are in fact subject to limits imposed by the Courts as they struggle to balance conflicting rights and situate them in a practical working framework. Free speech is no exception. In 1952, Justice Hugo Black, who insisted on reading the First Amendment literally, voted to strike down a states' group libel law, stating that the First Amendment "absolutely forbids such laws without any 'ifs' or 'buts' or 'whereases'." (Beauharnais v. Illinois, 343 U.S. 250, 275 (1952)). But he was in dissent and his view has not prevailed.. It was Mark Twain who said of the United States, only partly in jest, "It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practice either of them."

This said, the explicit recognition that, in a democratic society, limits may be imposed on fundamental freedoms means that free speech is more narrowly conceived in Canada than in the United States, as is evidenced by our respective positions on pornography, hate speech and defamation. While the American right of free speech admits of some limits in the name of reason or practical necessity, the fact remains that what would be counted as a reasonable limit on speech in Canada would often amount to an unreasonable limit in the United States.

…

To take another example, it is easier to sue for libel in Canada than it is in the United States. Application of the First Amendment's guarantee of press freedom led in this country to New York Times Co. v. Sullivan (376 US 254 (1964)) which permits newspapers to publish false rumours and make false statements about people with impunity so long as they do not do so intentionally or recklessly. A few years ago, the Supreme Court of Canada in Hill v. Church of Scientology expressly declined to adopt the Sullivan approach. As a result, in Canada, newspapers print unverified material at peril of being sued for libel. The Supreme Court considered the argument that a Sullivan approach was required to prevent "chilling" the free dissemination of information essential for the working of democracy. It concluded that any chilling effect flowing from strong libel laws is outweighed by the importance of protecting people's reputations against false and slanderous statements. Canadian law accepts that the goal of getting at the truth may be served by free exchange in the marketplace of ideas. But it also accepts that false words can do great damage to individuals and groups, damage that cannot always be repaired by debate and discussion.

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Section 319(2) is the section most of the public would be familiar with when hate propaganda is mentioned in the media. This section states that "everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence or an offence punishable on summary conviction." Section 319(3) sets out the defences which provide that no person shall be convicted of an offence under subsection (2):

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

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Section 319(2) cases are few. One of the reasons for this is that the allegations under section 319(2) rarely meet the high standard of proof that is required by the legal definitions and evidential requirements established in Regina v. Keegstra. In that seminal judgment, the Supreme Court of Canada had to balance the Canadian Charter of Rights and Freedoms’ right to freedom of expression under section 2 against section 1’s reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Keegstra case went through several levels of court on the original charges and took several years for appeals on sentence.

The facts, briefly, are that James Keegstra was a high school teacher in Eckville, Alberta. From the 1970s to his dismissal in 1982, he attributed evil qualities to Jews. He described Jewish people as "treacherous, sadistic, money-loving, power hungry, and child killers." Keegstra taught that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolutions. He claimed the Jews "created the Holocaust to gain sympathy" and, in contrast to open and honest Christians,were said to be deceptive, secretive and inherently evil.

Particularly egregious was the fact that his students were expected to reproduce his teachings on exams, and if they failed to do so, their marks suffered. Ironically, he later defended his actions by arguing that freedom of expression was a charter right in a democracy.

He was convicted at Superior Court, but his Charter argument was accepted in the Alberta Court of Appeal. The Crown appealed to the Supreme Court of Canada.

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Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.

Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.

Section 319(2) of the Code does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence. Section 319(2) is not an excessive impairment of freedom of expression merely because the defence of truth in s. 319(3)(a) does not cover negligent or innocent error as to the truthfulness of a statement. Whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. Finally, while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.

The effects of s. 319(2) are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The expressive activity at which s. 319(2) is aimed constitutes a special category, a category only tenuously connected with the values underlying the guarantee of freedom of expression. Hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda represents an impairment of the individual's freedom of expression which is not of a most serious nature.

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(How would Frenchmen react if Turkey passed a law stating that any proclaiming that Joan of Arc was other than an insane child, they will be fined)

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We can prove that Armenians were masaccred and that the Turks who raped, tortured, killed, and otherwise harmed them intended to commit genocide.

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Even were it possible to absolutely prove anything in history, I would still be deeply unnerved by criminalizing the opposite opinion.
 

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Posted by Storm Saxon (Member # 3101) on :
 
Thanks for pointing this out to me, Twinky.

I think we can all see that the key problem with the way Canadian law handles hate speech is that it gives the state the last say in whether speech is legitimate or not. As long as the state is virtuous and elastic, no (or at least few) problems. But what happens when the state is not virtuous and elastic? Problems.

Of course, the obvious reply is that there are groups within the citizenry that aren't virtuous. To my mind, the greater danger lies with a less virtuous state, because what can the citizenry do against a determined state? Little, if anything. What can the citizenry do to each other with only speech? Nothing.

Further, you admit that the state has only used its power to curb hate speech a few times. The question then becomes, what has the state really done to maintain order? What has it done to deny the truth of that idea?

For instance, do you think the imprisonment of Keegstra, one man, really changed anything in the minds of anyone? The facts show that Keegstra promoted hate speech for several years, yet what was the effect?

The best way to combat lies is with truth. In this way, everyone can be exposed to both viewpoints at once and see that truth has nothing to fear from lies. In the end, if a truth cannot defend itself with facts, then isn't it a sorry truth, and doesn't the protection of the state of that truth, or the denial of the state of a lie, not count for much?
 

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Posted by twinky (Member # 693) on :
 
You're welcome.

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Originally posted by Storm Saxon:
I think we can all see that the key problem with the way Canadian law handles hate speech is that it gives the state the last say in whether speech is legitimate or not.

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Originally posted by Storm Saxon:
Of course, the obvious reply is that there are groups within the citizenry that aren't virtuous. To my mind, the greater danger lies with a less virtuous state, because what can the citizenry do against a determined state? Little, if anything. What can the citizenry do to each other with only speech? Nothing.

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Originally posted by Storm Saxon:
Further, you admit that the state has only used its power to curb hate speech a few times.

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To my knowledge, there haven't been many 319(2) cases. However, I'd like to think that says more about the virtue of the Canadian population that the utility of the law.

quote:

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Originally posted by Storm Saxon:
For instance, do you think the imprisonment of Keegstra, one man, really changed anything in the minds of anyone? The facts show that Keegstra promoted hate speech for several years, yet what was the effect?

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Originally posted by Storm Saxon:
The best way to combat lies is with truth. In this way, everyone can be exposed to both viewpoints at once and see that truth has nothing to fear from lies. In the end, if a truth cannot defend itself with facts, then isn't it a sorry truth, and doesn't the protection of the state of that truth, or the denial of the state of a lie, not count for much?

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You're welcome. [Smile]

quote:Originally posted by Storm Saxon:
I think we can all see that the key problem with the way Canadian law handles hate speech is that it gives the state the last say in whether speech is legitimate or not.

I'm not quite sure what you mean by "the state" here. Do you mean the whole kit 'n kaboodle -- that is, in this context the government, the judiciary, and law enforcement agencies? If so, then I suppose that's true, but that was also true before this law was passed simply because of the "reasonable limitations" clause in Section 1 of the Canadian Charter of Rights and Freedoms.

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quote:Originally posted by Storm Saxon:
Of course, the obvious reply is that there are groups within the citizenry that aren't virtuous. To my mind, the greater danger lies with a less virtuous state, because what can the citizenry do against a determined state? Little, if anything. What can the citizenry do to each other with only speech? Nothing.

I'm just not seeing the slippery slope here.

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319(2) does not define specific statements that cannot be made, it only defines a class of statements in certain contexts. This essentially ensures that every instance will be examined by the judiciary,

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which, according to my understanding, in this country at least weights both legislative intent and judicial precedent heavily in comparison to precise wording.

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Also, the high standard of proof placed upon the prosecution in 319(2) cases goes a long way toward ensuring that the law won't be misused, in my opinion.

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quote:Originally posted by Storm Saxon:
Further, you admit that the state has only used its power to curb hate speech a few times.

To my knowledge, there haven't been many 319(2) cases. However, I'd like to think that says more about the virtue of the Canadian population that the utility of the law. [Wink]

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quote:Originally posted by Storm Saxon:
For instance, do you think the imprisonment of Keegstra, one man, really changed anything in the minds of anyone? The facts show that Keegstra promoted hate speech for several years, yet what was the effect?

I do think that Keegstra's conviction was a positive and useful outcome. He was a teacher who required that students "learn" his lies and enforced that learning with testing in exactly the same way as I was tested on legitimate knowledge when I was in school. He used his position of authority [to promote his ideas]. Removing him from the classroom and, further, ensuring that the public is aware that such abuses of power will not be tolerated.

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quote:Originally posted by Storm Saxon:
The best way to combat lies is with truth. In this way, everyone can be exposed to both viewpoints at once and see that truth has nothing to fear from lies. In the end, if a truth cannot defend itself with facts, then isn't it a sorry truth, and doesn't the protection of the state of that truth, or the denial of the state of a lie, not count for much?

I'm not convinced that the best way to combat lies is with truth. I can think of a number of non-topical examples where, from my standpoint at the very least, "lies" have triumphed in substantive and measurable ways. On the other hand, I can also think of non-topical examples where rigorous promotion of truth has made an equally substantive difference. So, let's assume that I grant your statement for the sake of argument, though, because even if truth isn't the most effective way to combat lies, that doesn't mean it isn't the best. I then have two basic criticisms of your argument:

1) I see no reason why truth must be the only weapon in the anti-lies arsenal. Promotion of truth combined with discouragement of the most harmful sorts of lies seems to me like it at least could be more effective than promotion of truth alone.

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2) 319(2) provides for showing people "both viewpoints." It isn't illegal to use hate speech for illustrative purposes (among other things, all of which are enumerated therein). 319(2) is, as the Supreme Court noted, fairly narrow in its focus.

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Already addressed this.

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-- how literally do you feel the First Amendment should be read?

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Do you support, for example, laws against libel?

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In your view, is there such a thing as a reasonable restriction on freedom of expression?

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Yes.

Any more questions. Each of these would be too tiring to answer in full.
 

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Posted by twinky (Member # 693) on :
 

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Originally posted by Storm Saxon:
We are discussing the law against hate speech. The state decides what is hate speech. Since almost any speech can be hate speech, it gives the state the ability to censor almost anything.

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What does it mean to 'promote hatred'? You say that it 'defines a class of statements', but I think the problem is that it doesn't. Consider the Danish newspaper problem. Many Muslims almost certainly considered that hate speech, while many non-Muslims didn't. Who defines what is hateful? The person speaking, or the person listening? In this case, it's the state that has the final say as to what is hateful or not.

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However, the bottom line is that what is and isn't hateful is extremely subjective.

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Does 319(3) reign in the ability of the state to define what is and isn't hateful. I don't see that it really helps all that much.

"Section 319(3) sets out the defences which provide that no person shall be convicted of an offence under subsection (2):

(a) if he establishes that the statements communicated were true;

a) True according to who? I'm sure Keegstra felt his statements were true. The state didn't. Therefore, the state determines what is true.

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b) What is a 'religious subject'? I'm guessing the state defines it.

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c) C is actually kind of odd to me. Surely Keegstra thought his statements were relevant and to the public benefit and felt 'on reasonable grounds' that they were true.

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d) D is also kind of amusing to me. 'Really, what I was saying wasn't hateful, it was designed to improve matters!

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...which, according to my understanding, in this country at least weights both legislative intent and judicial precedent heavily in comparison to precise wording.

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I'm not sure what the signifigance of this section is. From what you're saying, if someone says that what someone is saying is 'hate speech', a judge goes by 319(2) to determine if it isn't hate speech.

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Also, the high standard of proof placed upon the prosecution in 319(2) cases goes a long way toward ensuring that the law won't be misused, in my opinion.

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High standard of proof how? 'Judge, does this sound hateful to you?' 'Sure does.' End of story. There is no objective proof that is produced to prove hate!

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The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence.

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That said, I still don't agree that the law can't be abused if Canada produced a version of the American Palmer or Hoover.

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In the event that the case comes before the Supreme Court of Canada a second time,[44] it will be interesting to see whether the Keegstra analysis will survive recent changes in the constitution of the Court.[45]"
I wonder what this means?

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Let me ask you something. Should Keegstra have been charged if he just wrote book with his beliefs in them? If people came to his house voluntarily?

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I see no reason why truth must be the only weapon in the anti-lies arsenal. Promotion of truth combined with discouragement of the most harmful sorts of lies seems to me like it at least could be more effective than promotion of truth alone.

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What do you mean by discouragement?

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-- how literally do you feel the First Amendment should be read?

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Yes.

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Do you support, for example, laws against libel?

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Sure.

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In your view, is there such a thing as a reasonable restriction on freedom of expression?

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Yes.

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quote:Originally posted by Storm Saxon:
We are discussing the law against hate speech. The state decides what is hate speech. Since almost any speech can be hate speech, it gives the state the ability to censor almost anything.

This is the exact slippery slope argument that I'm not understanding. You seem to be assuming that the mere possibility of extension of the law, however remote, is sufficient to invalidate it. I don't agree. I also don't think that "almost any" speech can be "hate speech" -- or at least, I'm not willing to take it as axiomatic, which you seem to be.

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You also didn't answer my question as to what you meant by "state." If law enforcement agencies feel that Person X has violated 319(2), it's up to the judiciary to determine if the criteria are met; the say-so of law enforcement, the Attorney General, or the prosecution is insufficient. "The state" isn't a monolithic entity in this context.

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The law is flexible in that -- for example -- the definition of "identifiable group" can change (it's defined in a separate law, which is used for various purposes other than this one). The definition changed in 2004, for instance, when sexual orientation was added to the list of identifying criteria.

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quote:What does it mean to 'promote hatred'? You say that it 'defines a class of statements', but I think the problem is that it doesn't. Consider the Danish newspaper problem. Many Muslims almost certainly considered that hate speech, while many non-Muslims didn't. Who defines what is hateful? The person speaking, or the person listening? In this case, it's the state that has the final say as to what is hateful or not.

...

However, the bottom line is that what is and isn't hateful is extremely subjective.

It is indeed subjective,

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which is why 319(2) doesn't do what the French law does -- that is to say, it doesn't enumerate a specific list of banned ideas.

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quote:Does 319(3) reign in the ability of the state to define what is and isn't hateful. I don't see that it really helps all that much.

"Section 319(3) sets out the defences which provide that no person shall be convicted of an offence under subsection (2):

(a) if he establishes that the statements communicated were true;

a) True according to who? I'm sure Keegstra felt his statements were true. The state didn't. Therefore, the state determines what is true.

Your "therefore" doesn't follow. Keegstra felt his statments were true; law enforcement and the prosecution felt otherwise; the judiciary made the final determination based on the evidence presented. Under 319(3)(a), the onus is on the defence to establish the truth of the statements using evidence. I'm not a lawyer, so I don't know what standard of proof applies, but it's hardly an example of the monolithic state handing down edicts from on high about what is and is not truth.

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:b) What is a 'religious subject'? I'm guessing the state defines it.

As an example, I believe a pastor can get up before his congregation and call homosexuality a sin without being prosecuted under 319(2). This strikes me as a "just in case" provision, as with

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(d) below.

quote:c) C is actually kind of odd to me. Surely Keegstra thought his statements were relevant and to the public benefit and felt 'on reasonable grounds' that they were true.

I'm sure he thought they were relevant and to the public benefit; I'm also sure he thought they were true. Evidently the Court didn't think he thought so on 'reasonable grounds.'

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quote:d) D is also kind of amusing to me. 'Really, what I was saying wasn't hateful, it was designed to improve matters!

I think you've misapprehended the point of 319(3)(d). It's there to prevent prosecution in cases where a person is explaining (e.g. for illustrative purposes) something. For example, I could probably tell you that there are people who deny that the Holocaust happened, and enumerate some of their beliefs for you, without running afoul of 319(2), but just in case someone overreacted, I have the protection of 319(3)(d).

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quote:...which, according to my understanding, in this country at least weights both legislative intent and judicial precedent heavily in comparison to precise wording.

I'm not sure what the signifigance of this section is. From what you're saying, if someone says that what someone is saying is 'hate speech', a judge goes by 319(2) to determine if it isn't hate speech.

The point is that 319(2) doesn't enumerate a list of ideas that constitute "hate speech." That determination has to be made within the context of each specific case, by way of a trial.

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quote: Also, the high standard of proof placed upon the prosecution in 319(2) cases goes a long way toward ensuring that the law won't be misused, in my opinion.

High standard of proof how? 'Judge, does this sound hateful to you?' 'Sure does.' End of story. There is no objective proof that is produced to prove hate!

Let's go back to the ruling:

quote:The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence.

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I think your "Sure does!" example is misleading. A single judge might do that, but the conviction would promptly be appealed. "Sure does!" is not, and should never be, sufficient justification for sending someone to prison.

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I note, too, your insertion of the word "objective." "Objective proof" is an impossible -- and, I think, unfair -- standard. Any court decision will contain a measure of subjectivity; I don't view that as valid grounds for immediate dismissal. Laws will always have to be interpreted, but that doesn't mean we shouldn't have laws.

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quote:That said, I still don't agree that the law can't be abused if Canada produced a version of the American Palmer or Hoover.

The Attorney General's consent is a necessary, but not sufficient, condition. Prosecutions can't simply be carried out on the Attorney General's say-so.

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The way I could see the law being abused is this: if the RCMP brought bogus evidence forward against an accused, and the Attorney General, knowingly or otherwise, assented to the trial, it could result in an illegitimate conviction if the falsity of the evidence didn't come out in the trial. The most recent example of the RCMP falsifying evidence was the Maher Arar case, which had nothing to do with freedom of expression. A subsequent public inquiry completely exonerated Arar. However, the actual "evidence" against Arar was kept secret for "national security reasons," which is something that wouldn't happen in a promotion of hatred trial.

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I don't blindly trust my government to always pass laws that are right or good, nor do I blindly trust law enforcement to charge only the guilty. I simply agree with the Supreme Court in that I view 319(2) as a reasonable limitation on freedom of expression.

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quote:"...
In the event that the case comes before the Supreme Court of Canada a second time,[44] it will be interesting to see whether the Keegstra analysis will survive recent changes in the constitution of the Court.[45]"
I wonder what this means?

If I had to guess -- and it isn't crystal clear -- I'd say that the makeup of the Court has changed since the decision.

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quote:Let me ask you something. Should Keegstra have been charged if he just wrote book with his beliefs in them? If people came to his house voluntarily?

1) It would depend on the circulation of the book. I don't think it would be published in this country; if he distributed it himself it might well fall under my second answer below. Otherwise, yes, he should have been charged in that case.

2) No. There is a specific exception for private conversation in the first sentence of 319(2). I believe that this would also include private e-mail or instant messenger conversations.

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quote:I see no reason why truth must be the only weapon in the anti-lies arsenal. Promotion of truth combined with discouragement of the most harmful sorts of lies seems to me like it at least could be more effective than promotion of truth alone.

What do you mean by discouragement?

I'd say that discouragement includes, but is not limited to, laws like the one we're discussing. Government-sponsored anti-smoking ad campaigns would be an example of discouraging an undesired behaviour (rather than an idea).

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Yeah, I just read about how the French anti-smoking legislation is being ignored because people don't see the truth of it. Ultimately, people must see the truth of something, or they won't stop doing it.

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quote: -- how literally do you feel the First Amendment should be read?

Yes.

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Do you support, for example, laws against libel?

Sure.

Your first and second statements appear to conflict. How do you resolve that?

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I resolve it by saying what I was trying to imply, I dont' wanna talk about that right now.

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quote:In your view, is there such a thing as a reasonable restriction on freedom of expression?

Yes.

This also seems to conflict with a literal reading of the First Amendment.

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If you do support some restrictions on freedom of expression, it seems to me that ours is a difference of degree (which restrictions, and how many of them, are reasonable), rather than principle (restrictions should/should not be allowed).

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Of course. It would be rather stupid to say that no speech at any time should be abrogated by the law. Does such a person exist that believes that no one can ever be told to, for instance, not yell in someone's ear?
 

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Posted by twinky (Member # 693) on :
 
Okay, your last post clarified a few things for me. I understand what you're saying better now. Thanks.

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Originally posted by Storm Saxon:
I am genuinely confused how, after the many years I know you've been on this forum and the number of times each week that people take something wrong that someone else said completely innocently that you believe this is a slippery slope.

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I think one of the fundamental disagreements that you and I seem to have is in how we view the state.

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Yes, I think this is true. I've noticed that insofar as such generalizations can be made, Americans are significantly more libertarian than Canadians. I think this broad difference may stem in part from the American Revolution. [Added: That is, you have more reason to be mistrustful of government than we do.]

It's funny, a grownup told me years ago "You're too young to be so cynical," but here I am trusting that the government will either not misuse 319(2) -- and hence Section 1 of the Canadian Charter of Rights and Freedoms, a document which I and many other Canadians treasure -- or, if they attempt to do so, that provincial governments and/or the courts will take them to task for it.

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I firmly believe it doesn't take anyone falsifying anything for someone to get zapped by the state.

Let me give you an example. In a recent Atlantic, one of the articles dealt with how The State was prosecuting Muslims not for committing terrorism, but for planning ot committ terrorism. Not with anything they did, or plans to blow things up, or any real proof of violence, but by basically proving that they were militant Muslims.

Of course, what is a militant Muslim? The state tried to prove that certain men were militant Muslims by what they believed, certain passages of the Koran they had on them, passages they had written down, underlined, things of that nature.

The problem is that these passages can be interpreted several different ways. So, you have people being convicted and sent to prison for words and beliefs which might or might not have really meant what the state said they did, and the people judging the Muslims, themselves not beign Muslim, had no real insight into the complexities of Muslim scholarship.

Is this relevant to what we are discussing? I think so. I think it demonstrates how a state is fallible, and how, particularly when it comes to defining words, objective written evidence is often very, well, subjective.

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I don't blindly trust my government to always pass laws that are right or good, nor do I blindly trust law enforcement to charge only the guilty. I simply agree with the Supreme Court in that I view 319(2) as a reasonable limitation on freedom of expression.

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That's good. You're a good guy and I'm not trying to run down Canada. I just disagree that 319(2) is necessary, really.

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That's certainly fair enough. I'm not fully convinced that it's necessary either, but I think it serves a useful purpose (as I described in my opinions of the Keegstra case) and I don't think it's going to be abused (because I think the offence is sufficiently well-defined and the jurisprudence is sufficiently clear). I could, of course, be wrong. However, for me to actively campaign against the law, I'd have to be fully convinced that it was both unnecessary and unreasonable (in the Charter of Rights and Freedoms Section 1 sense).

And, as I said, I'm not trying to persuade you of the necessity or even merit of such laws, just trying to elucidate my position. Also, I think you're a good guy too.

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I'd say that discouragement includes, but is not limited to, laws like the one we're discussing. Government-sponsored anti-smoking ad campaigns would be an example of discouraging an undesired behaviour (rather than an idea).

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Yeah, I just read about how the French anti-smoking legislation is being ignored because people don't see the truth of it. Ultimately, people must see the truth of something, or they won't stop doing it.

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I agree. However, I think that legislation can be part of that toolkit. On the subject of smoking, for instance, I support the smoking bans that have been spreading across Canada at the municipal and even provincial levels. I also supported Health Canada's anti-smoking ad campaigns, as well as warning labels on cigarette boxes.

In terms of discouraging racism, for example, I remember multiple government-sponsored initiatives from my childhood. So it isn't just legislation.

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I resolve it by saying what I was trying to imply, I dont' wanna talk about that right now.

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Oh. Okay. Sorry for being obtuse.

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Does such a person exist that believes that no one can ever be told to, for instance, not yell in someone's ear?

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MY GOODNESS, I HOPE NOT!



Having said all of that, I'm not sure what more there is for us to say on this subject. I think I understand where you're coming from, and I also think you seem to understand where I'm coming from. I plan to keep an eye out for future cases as well.
 

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Posted by Storm Saxon (Member # 3101) on :
 
Just to be clear on what I said earlier, it's not JUST beliefs.

http://forum.theatlantic.com/WebX?.4a826e7a

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In "Prophetic Justice" (October 2006), Amy Waldman questions the United States' policy on prosecuting suspected terrorists for their intentions and beliefs, not just their actions. Waldman notes that security policy in the United States shifted after 9/11 from defensive to preemptive: abroad, she points out, we are engaged in preemptive war and at home we are engaged in preemptive prosecution. Her story follows the trial of twenty-two-year-old Hamin Hayat who has never committed an act of terrorism but who confessed to having trained in terrorist camps in Pakistan and to having come to America in order to wage jihad. He now faces thirty-nine years in jail.

Much of the trial focused on the interpretation of a written prayer found in Hayat's possession, which translated roughly to something like: "Oh Allah, we place you at their throats, and we seek refuge in you from their evil." The prosecution used the prayer as evidence of Hayat's violent intentions toward America. Waldman notices that the lengthy disputes surrounding the prayer's significance reveal the risks and challenges religions face when interpreting one another's beliefs.

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by Amy Waldman

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A t the age of twenty-two, Hamid Hayat appeared to be adrift on two continents. He slacked, by turns, in his hometown of Lodi, California, and in his family’s home country, Pakistan. Having lived for roughly equal amounts of time in each, he seemed without direction in either. But on June 5, 2005, the young American offered up alarming evidence of personal initiative: after hours of questioning at the FBI’s Sacramento office, he confessed that he had attended a terrorist training camp in Pakistan and returned to the United States to wage jihad. In quick succession came his arrest, a packed press conference, and his indictment—and suddenly, it was all over but the trial.

Hayat’s case presented a peculiar challenge for the prosecution, which needed to show not just that he had trained in Pakistan and concealed doing so, but that he had intended to commit terrorism. Yet the only direct proof of any of this was Hayat’s videotaped confession, which was as irresolute as his life. The slender, deferential young man repeatedly contradicted himself. He parroted the answers that agents suggested. And the details of any terrorist plan were scant and fuzzy.

The government said that its direct evidence was limited because it had intercepted Hayat so early in the process. “This is not a case where a building has been blown up, and, you know, the forensic investigators go in, they go looking through the rubble looking for clues,” one prosecutor, David Deitch, told jurors. “This isn’t that kind of case. This is a charge that allows the FBI to prevent acts of violence like that.” Would Americans, he asked, want any less?

To prove intent, then, the government had to turn to the rubble of Hayat’s life—an accretion of circumstantial but ugly evidence that prosecutors said proved “a jihadi heart and a jihadi mind.” There were Hayat’s words, taped by an informant, in which he praised the murder and mutilation of the journalist Daniel Pearl: “They killed him—I’m so pleased about that. They cut him into pieces and sent him back … That was a good job they did—now they can’t send one Jewish person to Pakistan.” There was what the prosecution called Hayat’s “frequently expressed hatred toward the United States”; his comment that his heart “belongs to Pakistan”; his description of President Bush as “the worm.” There was, at his house, literature by a virulent Pakistani militant and a scrapbook of clippings celebrating both the Taliban and sectarian violence.

And folded in his wallet was a scrap of paper on which was written a squib of Arabic. Prosecutors first translated the words as “Lord, let us be at their throats, and we ask you to give us refuge from their evil,” and then amended it, after the defense protested, to “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” But regardless of the translation, the interpretation of what the government called the “jihadist note” never changed. The prosecution cited it as “probative evidence” that Hayat had “the requisite jihadist intent” when he attended the training camp and then returned to America.

The note became a kind of leitmotif in the case. Weighing a request for bail by Hayat’s father, who had been charged with lying about his son’s training, U.S. Magistrate Judge Gregory G. Hollows wrote:

The allegations depict Hamid as one who would be ruthless in his disregard for human life if and when ordered to do so on account of a “religious” philosophy. Although religion can form the basis of mankind’s most noble deeds, it can also have the effect attributed to it by Pascal: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” The scrap of paper found in Hamid’s wallet certainly speaks to the latter category.

An expert witness for the prosecution testified that the prayer would be carried around, as a prosecutor recapped, “by a holy warrior, a violent jihadi, who felt himself to be traveling in an enemy land, and who was ready to commit violent jihad.” That exposition resonated with at least some jurors, who speculated that the paper might be Hayat’s graduation certificate from the terrorist training camp. The prayer encapsulated everything they feared about the power and danger of religious conviction, and it helped ensure, after a ten-week trial, Hayat’s criminal conviction.

T he September 11, 2001, attacks on the World Trade Center and the Pentagon prompted a fundamental shift in the American government’s approach to Islamic terrorism. Before 9/11, the government largely responded to attacks that had already occurred—by launching cruise missiles at terrorist bases in Afghanistan and Sudan after the 1998 embassy bombings in Africa, for example, or by prosecuting the planners and perpetrators of those bombings in federal court. (The notable exception was the trial and conviction in 1995 of Sheikh Omar Abdul-Rahman—the “blind sheikh—for “seditious conspiracy” to blow up New York landmarks.) But after 9/11, the focus turned to prevention.

Abroad, the government has pursued a doctrine of preemptive war. At home, it has pursued a strategy of what might be called preemptive prosecution. The criminal-justice system, the Justice Department said in a recent white paper on counterterrorism, now “operates effectively as an element of national power.” The goal has become to stop another terrorist attack before it happens. In 2002, the FBI told its fifty-six field offices they could no longer set their own law-enforcement priorities: the top priority for every office was preventing another attack. McGregor W. Scott, the U.S. attorney who prosecuted Hamid Hayat, says that then Attorney General John Ashcroft told him during their first meeting after Scott’s appointment, “Your job is to prevent further acts of terrorism.”

That job—a real-life, never-ending version of the television show 24—has weighed heavily on agents and prosecutors, in part because they have been ill-equipped to perform it. Trained in the classic art of whodunit—collecting fingerprints, interviewing bank tellers after a robbery, trying the purported robber—agents and prosecutors now have to figure out who will do it.

This preemptive strategy represents a major moral and legal change in the American approach to justice. Its premise is that terrorism—implicitly, Islamic terrorism—represents a singular, unprecedented threat to American safety and society. Testifying before Congress in 2004, Paul Rosenzweig of the Heritage Foundation paraphrased a well-known maxim, saying, “It is better that ten guilty go free than that one innocent be mistakenly punished.” September 11 changed the paradigm, he argued, and now, “we simply cannot afford a rule that ‘Better ten terrorists go undetected than that the conduct of one innocent be mistakenly examined.’”

The notion of preemptive prosecution is, of course, not without precedent. McGregor Scott notes that we prosecute felons for possession of firearms to stop them before they can use guns to commit a violent crime. David Cole, a professor at Georgetown University Law Center, cites the indictment of Al Capone for tax fraud as a “pretextual prosecution—the government couldn’t get him for more serious crimes—whose effect was also to prevent future crimes. Paul Robinson, a law professor at the University of Pennsylvania, argued even before 9/11 that the lengthy incarceration of habitual offenders was more about preventing future crimes than about punishing past ones, and warned against the ambiguity of punishing “dangerousness.”

The 9/11 attacks made this shift explicit for one category of crime and, in practice, largely for one category of American. In search of potential terrorists, the government has cast a broad net across the country’s Muslim communities, often relying on undercover informants. This has led to hundreds of legal cases against Pakistani, Saudi, Moroccan, Algerian, Palestinian, Yemeni, and American Muslims. In many instances, the prosecutions have been pretextual: charges of lying to law-enforcement agents, fraud, money laundering, and, often, immigration violations. But a number of prosecutions, like Hayat’s, have been explicitly preemptive: cases against individuals the government said were planning to commit terrorist acts or were encouraging or supporting others to do so.

The Bush administration did not seek legislation to authorize its new preemptive approach, instead relying on existing, if previously little used, laws. Key among these were two statutes—passed in 1994 and 1996 respectively—barring “material support” of terrorism, which can mean anything from personnel to funds. The laws, which were expanded under post-9/11 legislation, allow the government to bring terrorism- related charges even when no terrorism has occurred.

Deputy Attorney General Paul McNulty said in a recent press briefing that he encouraged prosecutors to bring charges against would-be terrorists as early as possible. But that approach can be at odds with prosecutorial success: the earlier you intervene to stop a suspected crime, the less proof you have that a crime was going to be committed. “As a prosecutor, you probably don’t have as much evidence of guilt [as] you would if the thing were much further along,” McGregor Scott, the U.S. attorney in Sacramento, says. “We don’t have [the defendant] in the rental van with a whole bunch of C4 [explosives] in the back driving to the federal building.” Whether that points to a lack of evidence or a lack of guilt, it presents prosecutors with a practical problem: how to prove that a suspect who has not committed a violent crime is dangerous enough to convict. In the armed felon’s case, the measure of dangerousness—proven past bad acts—is at least clear. But most terrorism defendants have not had previous convictions. Determining their intent, therefore, is what David Cole calls an “inevitably speculative endeavor.”

The government has sought to demonstrate danger in two ways. The first is through acts, such as training, that are seen as preparatory to terrorism (but not concrete or defined enough to result in conspiracy or other overt charges). The second is through speech, belief, or association—documented through the defendants’ words or material found in their possession—that suggests sympathy or support for terrorism. In case after case, the government has sought to prove allegiance to a radical Islamist philosophy that supports violence in Allah’s name. Much of the evidence, as a result, is religious in nature.

The government’s professed target is extremist dogma. But, as Mary Habeck notes in Knowing the Enemy: Jihadist Ideology and the War on Terror, extremists have gained traction precisely because their dogma finds its roots in Islam’s sacred texts—the Koran and hadith, the traditions of the Prophet Muhammad as documented by his companions—and in subsequent interpretations of Islam. That continuum of religious dogma presents a challenge for Islam, but also for the American court system, where the effort to try terrorist extremism has arguably resulted in the trial of Islam itself.

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