Canadian Civil Liberties, Holocaust Denial, and the Zundel Trials
Hasian, Marouf A., Jr., Communications and the Law
"Everyone has the following fundamental freedoms.., freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication....(1)"
"I hope not everybody in Canada is as ready to abandon freedom of speech as this jury is."(2)
The advent of the Internet and the opening up of the information superhighway has been a mixed blessing for many of the world's democratic governments. On the one hand, tens of millions of people now have access to new sites of information. Yet on the other hand the novel technologies also have opened up the possibilities of increasing the amount of misinformation that is produced and circulated around the world. Some of the most die-hard protectors of an open "marketplace of ideas" worry about the potential abuses of the Internet.
Perhaps one of the thorniest problems in the realm of freedom of expression involves the question of what to do about Holocaust deniers. We are living during a period where we are simultaneously witnessing the loss of our last Holocaust survivors and an exponential growth in Holocaust-denial literature.(3) Our dominant cultural and legal defenses of liberalism and tolerance are being challenged daily by critics from both the right and left ends of our political spectrum. One fruitful way of learning about the range of options available to combat this problem comes from observing how nations besides the United States have dealt with Holocaust deniers.(4)
The purpose of this article is to provide a basic overview of some of the trials and tribulations that have come from Canada's legal experiences with Holocaust issues. More specifically, it illuminates the ways that the Ernst Zundel trials provide a context for discussing the principles and interests involved in coping with Holocaust deniers. Unlike most American jurisprudential norms that highlight the libertarian, almost absolute nature of free expression, Canadian laws are built around a much more communitarian approach to free speech and free press rights. "The proliferation of hate speech in cyberspace," notes Gosnell, "poses difficult questions for the application of the principle of freedom of expression in Canada."(5)
To explain the importance of the Zundel trials, this article is divided into five major sections. First it provides background regarding some of the international issues related to the Holocaust and Internet regulation. Second, it briefly summarizes the chronological events involved in the Zundel trials. The third and the fourth sections discuss the pros and cons of using balancing tests and the imposition of strict regulations on Internet sites. Finally, the article discusses the free expression implications of following Canada's lead in dealing with Holocaust deniers.
I. THE EXTENT AND LIMITS OF FREEDOM OF EXPRESSION IN INTERNATIONAL HOLOCAUST-DENIAL CASES
Following Reno v. ACLU,(6) it appears that United States decisions will continue to hold that most regulations of the Internet based on content are unconstitutional. As Fogo-Schensul wistfully complained in early 1998, "[T]he First Amendment precludes the possibility that the United States could officially regulate the dissemination of Holocaust denial materials over the 'Net with respect to domestic regulation."(7) Granted, we have had occasional instances where the United States has found exceptions to First Amendment protections--libel; time, place, and manner restrictions; clear and present dangers; fighting words; etc. Yet these are considered to be rare instances of restrictions on our "marketplace of ideas." When it comes to the issue of Holocaust denial, web site creators take this theorizing seriously, often acting out these libertarian freedoms by creating new linkages and mirror sites when other nations have banned or strictly regulated Holocaust-denial material.
This has created many legal conundrums for other countries that have tried to stop the creation and spread of Holocaust-denial material in their own backyards. …