Revisiting the Maclean’s Human Rights Code Complaint
Almost 12 years ago complaints were made under the Canada Human Rights Act [CHRA] and the BC Human Rights Code [BCHRC] against Maclean’s Magazine following its publication of an excerpt from Mark Steyn’s book, America Alone. The substance of the complaints was that in publishing this material (on-line and in and print) Maclean’shad exposed Muslims to hatred and contempt contrary to s. 13 of the CHRA and s. 7 of the BC Code.
In the excerpt Steyn sought to raise the alarm about what he saw as the Muslim take-over of Europe, which was occurring through high levels of immigration from Muslim countries and higher birth rates in Muslim families that have settled in the West. He argued that Muslims want to impose Sharia law (a comprehensive set of spiritual and political rules) on the European countries in which they reside and are prepared to use a variety of means to achieve this end, including violence.
Almost without exception, media columnists and commentators in Canada condemned the complaints and the laws that allowed such complaints to be made. They saw the complaints as a direct attack on free speech and freedom of the press.
The complaint under the CHRA was dismissed by the human rights commission without being referred to the tribunal for adjudication. At the time in BC all complaints under the code went directly to the provincial human rights tribunal for adjudication. (Maclean’s had the option of applying for a dismissal of the claim prior to a full hearing but decided not to exercise that option). After hearing the complaint, the BC tribunal decided that the excerpt in Maclean’sdid not breach the code’s hate speech provision. The uproar around the case eventually led to the repeal of the hate speech provision in the CHRA.
But was this media (and public) outrage justified? I wonder whether recent acts of violence against Muslims such the shootings in mosques in Quebec City and Christchurch NZ might cause us to view Maclean’s complaint differently and more willing to see Islamophobic speech as falling outside the scope of free speech protection
Steyn’s Anti-Muslim Claims
In his book, America Alone, Steyn asserts that we are at “the dawn of a new Dark Ages” in which much of Europe will be “re-primitivized” by Muslims.[1]The goal of the “Islamists”, said Steyn, is “the re-establishment of a Muslim caliphate, living under sharia, that extends to Europe.”[2]The Western world, he tells us, “will not survive this century”; it may not even endure “beyond our lifetimes”.[3]He sees an unbridgeable divide between Muslim culture and the culture of the West: Muslims simply cannot be assimilated into liberal-democratic society.
Steyn regards Islam as a “political project”, an “ideology”, and as different in that respect from other religions.[4]His critique, though, focuses on Muslims, on what they say and do in the civic sphere, rather than on the religious tenets or spiritual practices of Islam. He rejects any suggestion that Muslims are a racial group, whose members share certain biological traits. He notes that in a place such as the Balkans the Muslims and non-Muslims “look exactly the same, race-wise”.[5]If Muslims are not a race, then in Steyn’s mind, a critique of their beliefs and actions – of their ‘culture’ -- cannot be described as racist: “To claim [Islam] is a ‘race’ is so breathtakingly stupid as to give the game way – and to confirm that ‘Racist!’ is now no more than the cry of a western liberal who can’t stand his illusions being disturbed”.[6]
But even if Islamic belief or Muslim culture is not an inherited trait, it is, for Steyn, something almost as deep and rooted in the life of a Muslim. Islam, he observes, “forms the primal, core identity of most of its adherents in the Middle East, South Asia, and elsewhere”.[7]It is “a powerful identity that leaps frontiers and continents”, and “not something you leave behind in the old country”.[8]Steyn seeks to avoid the charge of racism by distinguishing between race, which is immutable, and culture, which is changeable, and insisting that his critique is focused on the latter, but then proceeds to describe Muslim culture as deeply-rooted, static, and generic. In Steyn’s account then culture becomes the equivalent of race.
When complaining about the European media’s unwillingness to identify Muslims as the perpetrators of violence, Steyn tells the following story:
In June 2006, a 54-year-old Flemish train conductor called Guido Demoor got on the Number 23 bus in Antwerp to go to work. Six -- what's that word again? -- "youths" boarded the bus and commenced intimidating the other riders. ... Mr. Demoor asked the lads to cut it out and so they turned on him, thumping and kicking him. [N]one [of the other passengers] intervened to help the man under attack ... leaving Mr. Demoor to be beaten to death. Three "youths" were arrested, and proved to be -- quelle surprise! -- of Moroccan origin.[9]
It seems unlikely that the young men involved in this incident were devout Muslims and even less likely that their assault on the bus driver was intended to advance the cause of Islam in Europe. They may have been raised in Muslim households or their parents or grandparents may have been adherents of Islam – although almost certainly followers of a culturally particular form of the faith. This, it appears, was another tragic instance of the violent behaviour in which alienated young men too often engage. Religion appears to have played no role in their actions.Indeed, Steyn describes the men as Moroccan rather than Muslim, but his story is linked to a set of claims about Muslims and violence. In this way he encourages the reader to make the short leap and equate Moroccan with Muslim – and to see the violent act of these young men as a manifestation of the violence of the larger Muslim culture.
At important points in his attack on Muslim immigration, Steyn seeks to avoid the charge of racism or hate speech by acknowledging that not all Muslims are committed to the use of violence. He offers what he calls “the obligatory ‘of courses’”, seeming to acknowledge (with a nudge and a wink to those who know what is expected in our ‘politically correct’ society) the diversity of opinion within the religious community. Not all Muslims are inclined to violence, Steyn concedes; but then in baroque style he immediately inserts a counter-point – qualifying the caveat or generalizing again about Muslims and the place of violence in their culture:
Time for the obligatory ‘of courses’: Of course, not all Muslims are terrorists – though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists – though enough of them share their basic objectives (the wish to live under Islamic law in Europe and North America) to function wittingly or otherwise as the ‘good cop’ end of the Islamic good cop/bad cop routine. But, at the very minimum, this fast moving demographic transformation provides a huge comfort zone for the jihad to move around in.[10][emphasis in the original].
This caveat allows him to say that his criticism is directed only at those who support violence. Yet framed in this way, as a compulsory acknowledgement, Steyn’s caveat is about as comforting as the statement that ‘not every Jew is dishonest’ or ‘some gay men are not pedophiles’. It is offered as the exception that supports the general rule about the group. He formally concedes that not everyone who identifies with the group holds such a belief, while suggesting that it is the prevailing or established view in the group.
This is a familiar strategy. When the speaker – in this case Steyn -- is pressed (possibly even accused of engaging in hate speech), he pulls back and insists that he is only making a claim about those members of the group who hold this belief, while encouraging his readers in various ways to think that the number of believers is considerable. “What we still do not know”, says Steyn, “is how deep the psychoses of jihadism reach within Islam in general, and the West’s Muslim populations in particular”.[11]Even if the number of violent “jihadists” remains unspecified in Steyn’s account, once the association of Muslims with violence is made it becomes easy to present Muslim moderates as exceptional. When the issue is how many Muslims support violence, then all are suspect and appropriately subject to scrutiny and perhaps even exclusion – since, in the words of Donald Trump, “we just can’t be sure” which ones do and which ones do not support violence. If the Islamic faith or Muslim culture is the common thread that connects these violent actors, then there must be something about the culture or religion that accounts for the prevalence of violence among Muslims -- even if not every Muslim is violent.
At other times, Steyn argues that, even if Muslims are not all willing to commit acts of violence, they are at least united in their openness to violence. In Steyn’s view the diversity among Muslims is simply in the degree of their commitment to, or sympathy towards, violence as an instrument to achieve the ‘Islamification’ of the West. He rejects what he refers to as the “black” and “white” account that draws a clear distinction between “the bomber” and everyone else:
[T]he terrorist bent on devastation and destruction prowls the street, while around him are a significant number of people urging him on, and around them a larger group of cock-sure young male co-religionists gleefully celebrating mass murder, and around them a much larger group of ‘moderates’ who stand silent at the acts committed in their name, and around them a mesh of religious and community leaders openly inciting treason against the state, and around them another mesh of religious and community leaders who serve as apologists for the inciters, and around them a network of professional identity-group grievance-mongers adamant that they’re the real victims …[12]
A “moderate Muslim”, says Steyn, may be “a Muslim who wants stoning for adultery to be introduced in Liverpool, but he’s ‘moderate’ because he can’t be bothered flying a plane into a skyscraper to get it.”[13]In other words, he is moderate, according to Steyn, not because he is opposed to violence, but simply because he is unwilling to engage in it himself.
Steyn shows some skill at moving between, on the one side, an assumption that Islam is a cultural identity, fixed and rooted, and, on the other, a recognition that religion is a personal commitment or judgment and that those who describe themselves as Muslims may have different views about what their faith requires or what is spiritually true and right. In this way he is able to blur the line between criticism of a particular belief (that may be held by some members of the religious tradition) and an attack on the entire religious group. Steyn’s attempt to connect Muslims to violence is aided by limited public knowledge and media representations of Muslims. Because non-Muslims tend to view Muslims as a more or less homogenous group, and often only hear about Muslims in connection with violence, they may associate all or most of the group’s members with the beliefs and actions of a violent sub-group.
The Dismissal of the Complaints against Steyn
The hate speech complaints against Steyn and Maclean’swere dismissed because Steyn was able to say that he was making a claim not about all Muslims, but only about a ‘core’ group of Muslims that is committed to the use of violence to advance their religion. Steyn could acknowledge formally the distinction between the individual and the religious tradition or community with which she identifies (and the space for disagreement or contest within the religious tradition) at important moments in their arguments, while effectively communicating the idea that to be a Muslim is to be committed to (or supportive of) the use of violence.
The complaints against Steyn were also dismissed because the tone of his article did not appear to be hateful or vitriolic.[14]The B.C. tribunal found that the article did not rise “to the level of detestation, calumny and vilification necessary to breach … the Code.”[15] It may have generated fear, but, according to the Tribunal, “fear is not synonymous with hatred and contempt”.[16] The angry or vitriolic tone of a particular instance of speech may discourage careful or critical judgment of its message by the audience, and so is a relevant consideration in determining whether the speech may contribute to the spread of hatred. Yet too great an emphasis on tone or style encourages the mistaken impression that hate speech laws are intended to protect individuals from offence or hurt feelings, rather than from the spread of dangerous misinformation about their group in the larger community. The central question that courts and tribunals must decide in these cases is whether the false claims made about Muslims are so extreme that they are likely to generate hateful views and encourage extreme action. Despite his glib and sometimes humorous style, Steyn’s purpose seems to be to alert his Western audience to the threat posed by Muslims.
The complaint against Steyn was also dismissed because, according to the tribunal, his expression contributed to public discussion: “[R]ead in its context, the Article is essentially an opinion on issues which in light of recent historical events involving extremist Muslims and the problems facing the vast majority of the Muslim community that does not support extremism, are legitimate subjects for public discussion”.[17]While he may have engaged in “exaggeration”, said the tribunal, he did so in order to rally public opinion.[18]The question that was not asked by the tribunal in Steyn’s case is what was Steyn hoping to achieve through his false and exaggerated claims – what exactly was he asking of his readers? In his column in Maclean’s, and in his other writing, Steyn does not often call for political action; indeed, he sometimes says that political action will be futile in the current climate.
Because the view that Muslims are willing to use violence to advance their faith is not a fringe view, Steyn’s claims about Muslims, could be viewed as support for political action rather than advocacy of extra-legal violence and discrimination. But, of course, the political action that is called for is the oppression or exclusion of Muslims. The involuntary deportation of Muslims from the West would require state violence that is too awful to imagine.
Because the view that Muslims (or at least many of them) are dangerous is widely held and expressed, we are less likely to link violent action against the group’s members to a particular writing or writer. Most of those who read the words of Steyn will not engage in anti-Muslim violence. When an individual, a so-called ‘lone wolf’, commits an act of violence after immersing himself in the anti-Muslim speech of Steyn and others, his extraordinary action will often be attributed to his moral deficiency or mental illness.
Speech that attributes dangerous or undesirable traits to a group that has in the past been the target of a campaign of violence, is more likely to be seen as hate speech -- as causing, or creating a risk of, significant harm. We are more likely to discern a link between a particular instance of hateful speech and the spread of hatred or the occurrence of violence, when there is a pattern or history of hatred and violence against the group. Because phrases such as ‘the solution to the Jewish problem’ or symbols, such as the swastika, evoke the Holocaust, it is easy to attribute a violent purpose to an individual who uses them. Because the act of burning a cross evokes the violent oppression of blacks in North America, it is easy to understand it as a call to violence (or as a threat of violence), and to connect its use to violent action. Yet, in the case of harsh, vitriolic statements made about other identifiable groups that do not have the same recent history of organized or widespread violent persecution, it may be harder to discern a violent purpose or effect. We are less likely to see speech as a call or prelude to violent action when violence seems remote or infrequent.
The question now is whether recent acts of violence against Muslims, such the shootings in Quebec and Christchurch make it more likely that the claims of Steyn and others will be viewed as hate speech – as encouraging the violent oppression of Muslims.
Steyn was embarrassed by the references to his work in the anti-Muslim manifesto produced by Anders Breivik, the Norwegian man who in 2011 set off a bomb in the government district in Oslo, which killed 8 people, and then travelled to the island location of a camp for the youth members of the governing social democratic party, where he shot and killed 69 young people.Initially Steyn responded by pointing out that Breivik’s attack was directed against “native” Norwegians and not Muslims. Breivik’s action, said Steyn, was not an “‘Islamphobic’ mass murder [because as] far as we know not a single Muslim was among the victims”.[19]In his quick and defensive response, Steyn omitted to mention that a central theme in his writing is that the ‘liberal elites’, who support immigration and multiculturalism, are complicit in the Muslim take-over of Europe. Breivik’s attack was directed at the people (and their children), who Steyn claimed were appeasing Muslims. Breivik presented himself as a “saviour and redeemer of a white, Christian European Civilization” and intended his attack to be a wake-up call to his fellow Europeans.
Steyn’s other attempt to distance himself from Breivik’s violence was to note that Breivik’s manifesto referred to a wide range of authors, including major figures in European political theory, such as John Locke and Edmund Burke: “when a Norwegian man is citing Locke and Burke as a prelude to gunning down dozens of Norwegian teenagers, he is lost in his own psychosis.”[20]Yet it was the writing of Steyn and other “Eurabia” authors that persuaded Breivik of the urgent need to respond to the threat to European civilization posed by Muslims. ‘Of course’ Steyn cannot be blamed for eccentric readings of his words. But how should Breivik have read Steyn? If Steyn meant what he said, and Breivik was persuaded by his claim, what should Breivik have concluded? Steyn claimed that the European nations are about to succumb to the single-minded determination of the Muslim inhabitants of Europe, who are an ‘enemy within’, prepared to employ coercive and violent means to impose their faith on others. Political action seems futile, said Steyn. The political elites of Europe are unable or unwilling to address the problem. Breivik appears to have drawn the logical conclusion from Steyn’s claims. His ‘psychotic’ actions may be seen as a ‘rational’ response to Steyn’s assertions. Perhaps Steyn never intended anyone to act on the views he expressed. Perhaps his claims were mostly hyperbole and meant simply to catch attention, generate controversy, sell books, and put him in the public eye. Yet Steyn’s claims were offered as serious analysis and are understood by many readers as such. He should not have been surprised then when some readers decide to act on his claims, and nor should we.
[1]Steyn, America Alone, at xxiv
[2]Steyn at 38
[3]Steyn at xxiv
[4]Steyn at 62
[5]Steyn at xx
[6]Steyn at xxi.
[7]Steyn at xxxv
[8]Steyn at xxxviii.
[9]Steyn at 34-5.
[10]Steyn note 23 at 33.
[11]Steyn at 88.
[12]Steyn at 196.
[13]Steyn at 77.
[14]Elmasry and Habib v. Rogers’ Publishing and MacQueen (No 4,) 2008 BCHRT 378. at para 151
[15]Elmasryat para 156.
[16]Elmasry at para 154.
[17]Elmasryat para 150.
[18]Elmasryat para 156.
[19]Mark Steyn, “Islamophobia and Mass Murder”, National Review, July 25, 2011.
[20]Steyn, “Islamophobia” 110.