This past week saw an unspeakable tragedy unfold in the Paris office of a satirical newspaper, Charlie Hebdo, when gunmen opened fire, killing twelve and wounding many more. The apparent motivation for the killings was Charlie Hebdo’s publication of an image of the prophet Mohammad. The artistic depiction of Mohammad is forbidden in many sects of Islam and is offensive to many Muslims. Social media was set ablaze. Western democracies were left fearful of follow up attacks, and religious groups, notably Jewish and Muslim, were left in a state of fear. And in the case of the Jews, their fear was realized just two days later when customers at a kosher grocery store, including women and children, were taken hostage hours before the Sabbath. Four of the hostages were eventually killed.
In the wake of these unspeakable acts of terror, there have been calls in Canada and around the world to outlaw the depiction of Mohammed.
We at the Advocates for the Rule of Law firmly believe in the fundamental concept of constitutionalism as a backbone for societal order. The first thirty-three sections of the Constitution Act, 1982 are referred to as the Canadian Charter of Rights and Freedoms. These rights and freedoms, along with the limitations on government power set out in the Constitution Act, 1867, form the bedrock on which our free and democratic society rests. Section 1 provides that the rights and freedoms guaranteed by the Charter are subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 2 of the Charter protects everyone’s fundamental freedoms, which includes “freedom of expression”.
To be sure, freedom of expression, in Canada and elsewhere, must be subject to “reasonable limits.” Individuals are not free to produce child pornography, just as they are not free to scream “fire” in a crowded theatre. However, these limits on free expression must be few and far between. In Canada, under the “Oakes Test,” any limit on freedom of expression must further a compelling government interest, must be rationally tied to that interest, and must minimally impair freedom of expression.
Placing a limitation on the depiction of the prophet Mohammed, or any historical religious figure for that matter, cannot be demonstrably justified in a free and democratic society. The fact that some people may be offended is not enough to implicate Section 1 of the Charter.
Satirizing the sacred is more than just a necessary evil. More often than not, it is a positive good. While some depictions of Mohamed, Jesus Christ or other religious figures may be motivated by nothing more than bigotry or intolerance, many other depictions express a genuine religious, artistic or political message. It is not for the state to determine whether or not these expressions have been made in “good faith”; the forum to adjudicate offensive speech is in the marketplace of ideas. Those who are offended by certain expression or who believe that the expression harms the fabric of society are free to express their distaste through other peaceful forms of expression, such as writing letters to newspapers or even economic boycotts. But no one has the right to have their particular preferences enforced by the coercive power of the state.
The Charlie Hebdo terrorists have committed violence, not only upon innocents, but upon France’s entire way of life. Those who believe in the enduring value of freedom of expression and the rule of law must be willing to condemn without qualification any act of violence designed to silence freedom of expression. And by the same token, we must guard against those who would seek to outlaw controversial expression simply because it offends their sensibilities.
It always bothered me how people throw around the term “Hate Speech!” like candy when suggesting free expression should be limited. There is a difference between protecting society from hate speech and creating a “right not to be offended”.