I’ve spent a great deal of time this year studying freedom of expression and Communications law. As it happens, I like this particular subject, and take pride in applying it to my least favorite week of the year: Israel Apartheid Week.
I’ve read, seen and heard many other – and probably smarter – students and experts discuss IAW. You, like me, are probably getting a bit tired of hearing the same back and forth that has dominated political discourse on the matter for the last 5 years or so.
So today I’d like to approach the subject from a bit of a different angle if you’ll let me.
But first, let me give you full knowledge of where I come from, and how that affects what I say.
I am Canadian, I am Jewish, and I have been to Israel once on a trip called the March of the Living. My grandmother was born in Israel. I am a journalism student. I am not well versed in political theory, but that won’t matter for the purposes of this article.
What does matter out of that particular tidbit of rather boring biographical information is the fact that I am Canadian (insert beer commercial here): Which is probably the piece you thought would be the least relevant wasn’t it? See, I have some tricks up my sleeve.
Canada is considered a constitutional monarchy with a democratically elected government. By order of the British North America Act of 1867, also called the Constitution Act, the Canadian government has power to make laws governing its citizens.
While we, as a country, are now known for the civil liberties associated with democracy and western ideology, these were not constitutionally guaranteed until 1982 when the Canadian Charter of Rights and Freedoms was enacted.
You’re probably wondering why I’m giving you a mini-history lesson. Hear me out – I promise it’s relevant.
So as of 1982, Canadian citizens have constitutionally guaranteed freedoms and rights: freedom of religion, thought, belief, opinion, expression and conscious, and the right to equality, fair and public trial, mobility and democratic government.
With that in mind, let’s revisit Israeli Apartheid Week.
On the surface, it would seem that Students Against Israeli Apartheid are perfectly welcome, under freedom of expression guarantee, to hold such a week and express their views.
After all, if you’re from John Milton’s school of thought, the truth is out there in the marketplace of ideas, and it is up to you to find it.
Which gives merit to the fundamental, constitutional rights of SAIA to hold a week that expresses their opinions… to an extent.
Don’t think I didn’t have a twist coming for you. All good stories need a twist.
There is a concept which Klaus Pohle, my Communications Law professor (with a strange vendetta against men with green ties), calls ‘The Dynamics of Limitation’ – which here means: under what circumstances is it reasonable to limit constitutionally guaranteed freedom of expression?
He pointed out several instances where Milton’s desire to have freedom of expression “above all” other civil liberties is simply not productive: instances of hate speech, propaganda, libel/slander/defamation and criminalized behaviors (i.e. it’s nice that you want to express yourself by brandishing a knife, but that doesn’t mean it needs to collide with the other nice people on the street exercising their right to walking on sidewalks free from knives. Okay, it might not actually cite that case as a constitutional example, but I think you get the picture).
If I infer correctly, and feel free to correct me if I’m wrong, the thesis of the dynamics of limitation is that your freedom of expression bubble ends where another’s begins.
So while it would initially seem that in theory, SAIA campaigning against Israel is constitutional, we must take the dynamics of limitation into account.
Let me first address the categories you might think would apply, but in fact, do not.
Libel, or publishing material that would lower an individual’s reputation in the eyes of the public, is a civil or criminal offence under Canadian Law. Slander is essentially the same thing, but rather than publishing material on a permanent forum the defamation is accomplished by word of mouth, and one must prove damages in order for the case to be actionable in a court of law.
What prevents IAW from being subject to libel or slander laws is not any of the accepted defenses for libel (truth, consent, fair comment, qualified privilege, or responsible communication on a matter of public interest). In fact, I could go through that entire list and find elements of IAW that prevent each and every one of those defenses from making libel justified.
What does prevent SAIA from being the subject of a nasty civil suit, is the question of identification. When suing for libel, an individual must prove they were identified clearly, had their reputation lowered, and such offensive material was published in a permanent form (including the internet!).
While provisions for class action lawsuits do exist in Canada to allow small groups to band together in one lawsuit as a mater of financial convenience, they come with the footnote that each member of the group must be individually identifiable in the libelous material. Combine that with the rule that only the libeled party can sue (a clever provision making it impossible to libel the dead – fun fact), and unfortunately we are S.O.L. on the libel front.
Also, I’d like to point out that were such a case actionable, we as the plaintiff would not need to prove the allegation to be false, because the court makes a basic presumption that the plaintiff has a good reputation, enjoys such reputation and nobody has the right to lower that reputation.
So while there may be a case to be made that material published or rallies held by SAIA during this week are libelous, loopholes in Canadian law unfortunately prevent such action from succeeding.
Instead, I point you down another, less legally solid but more emotionally provocative path, again concerning the question of identification.
One of the civil liberties guaranteed by the charter of rights and freedoms is the right to a fair and public trial. While it may be tricky to prove that materials issued by SAIA are propaganda, or that their ideas about Israel constitute the ever-broadening idea of “hate speech,” it is reasonable to say that before Israel is branded an “Apartheid” state, perhaps they should be afforded the right to a metaphorical fair trial.
Yes, I am aware that Israel is a state, not a person. But it is a state that, whether we like it or not, has a much greater impact than the geographical area it encompasses.
Israel is not just a piece of land. At this point, Israel is an idea: it is a Jewish homeland. Let me be clear: Jews do not own Israel (thanks, stereotypes), but rather as a broadly generalized collective, there is a religious and cultural connection to the state, and to what it represents.
So while it may not be possible to identify each and every Jewish student with the term “Zionist” or “Jew” because those terms, and other less flattering ones used by SAIA, are too broad to constitute proper identification, it does not mean they do not apply to those of us living in Canada.
Terms, phrases, slogans, and ideas not only apply to Jewish Canadians, but when used in a derogatory fashion arguably not only violate our right to a so-called “fair trial” before being branded, but also our right to equality, and our freedoms of thought, belief and opinion.
While it is not written in the Charter, I, and Carleton University if I understand correctly, believe that it is every student’s right to feel safe on campus.
A friend of mine recently saw the slogan “Save an Arab, Slay a Jew” graffiti-ed on a bathroom stall in the Loeb building.
So while you may not be identifying me directly, hurting me physically, publishing libel or speaking slander, I still suffer the damages that come as a result of those torts.
Here is the bottom line: I, as a Jewish student, do not feel safe on campus during Israel Apartheid Week.
So while you, SAIA are at perfect liberty to express your opinions, and advocate for the rights of Palestinian people, don’t forget that we also have rights here in Canada, and yours are not the only ones in question.