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Author Topic: Possible french law makes it a crime to deny Armenians suffered genocide
Storm Saxon
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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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twinky
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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.

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

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]

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.

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.

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.

Having said all of that, I'm not expecting to (or trying to) persuade you, here, so much as I'm trying to make my own position a little clearer with an eye toward mutual understanding. I have a couple of questions about your position that will hopefully help me clarify where you're coming from -- how literally do you feel the First Amendment should be read? Do you support, for example, laws against libel? In your view, is there such a thing as a reasonable restriction on freedom of expression?

[Edit: Forgot to finish one of my sentences.]

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Storm Saxon
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quote:

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.

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.

quote:

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.

I don't look at it as a slippery slope, just basically laying out what are to me what the basic paramaters of the discussion.

quote:

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,

O.K. Let's take a look at 319(2) again:

" 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."

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.

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;

(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."

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.

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

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.

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

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.

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!

From the dissenting opinion in the Keegstra case from here:

".. [T]he broad criminalization of virtually all expression which might be construed as promoting hatred effected by s. 319(2) of the Criminal Code is not, in my view, a proportionate and appropriate means of achieving the end to which the legislation is directed. The breadth of the category of speech it catches, the absolute nature of the prohibition it applies to such speech, the draconian criminal consequences it imposes coupled with the availability of preferable remedies, and finally, the counterproductive nature of its actual effects -- all these features of s. 319(2) of the Criminal Code combine to make it an inappropriate means of protecting our society against the evils of hate propaganda.[37]"

BUT

One paragraph later, here's something that I haven't seen mentioned which is an additional brake on the abuse of the law:

"McLachlin J.'s concern about the breadth of section 319(2) is not supported by the section's history, which has seen very few prosecutions even initiated.[38] The requirement, under section 319(6) of the Code, that no prosecution take place without the consent of the relevant provincial Attorney General, has clearly had the effect of placing significant limits on the scope of the Code's hate propaganda provisions."

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.

However, a little further down:

" There is, however, an interesting twist to the Keegstra story which has the potential to short-circuit the gains of Keegstra in this respect. Following his conviction at a retrial in 1992, Jim Keegstra appealed to the Alberta Court of Appeal. On 7 September 1994 the Court accepted the apppeal, overturning Keegstra's conviction and ordering a new trial. The successful ground of appeal was that the judge had made certain errors during the conduct of the trial. However, Keegstra had also asked the Court, inter alia, to reconsider the constitutional validity of section 319(2) in light of the recent decisions of the Supreme Court of Canada in R. v. Zundel,[42] and the United States Supreme Court in R.A.V. v. City of St. Paul,[43] In both cases, statutory provisions employed in the prosecution of hate propagandists were struck down as unconstitutional.

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?

quote:

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]

See above.

quote:

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.

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?

quote:

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.

What do you mean by discouragement?
quote:

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.

Already addressed this. [Smile]

quote:

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

Yes.
quote:

Do you support, for example, laws against libel?

Sure.

quote:

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

Yes.

Any more questions. [Wink] [Smile] Each of these would be too tiring to answer in full.

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twinky
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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.

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.

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.

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, 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.

In the specific case of the Danish cartoons, Canadian newspapers refrained from printing them, but to my knowledge it wasn't to avoid running afoul of 319(2). I read at least one editorial in a major newspaper discussing the question of whether they ought to print them. Ultimately, they didn't.

[Added: And, you know, as I think about it some more, I don't see how they could qualify as 'hate speech' under the law. I imagine that's why I didn't hear a peep about 319(2) during the whole cartoon fiasco.]

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.

quote:
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 (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.'

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).

quote:
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.

quote:
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.
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.

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.

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.

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.

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.

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.

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.

quote:
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).

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

Yes.
quote:

Do you support, for example, laws against libel?

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

quote:
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.

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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Storm Saxon
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quote:

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.

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.

'Hate' is almost an entirely, 100% subjective word describing a subjective state. Surrounding it with other subjective words doesn't change this. How does this not lead to the ability to make anything hate speech?

quote:

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.

The judiciary are agents of the state, the government, the man, the big cheese. They are acting for the state. They are a portion of the state. *They are part of the apparatus, the state, that can compel other private citizens to do stuff.* I didn't answer your question because I am genuinely confused how you could believe that the judges were not the state. You and your friends getting together and judging someone is meaningless because you can't compel obedience, you don't have any power, you're not agents of the state. So, the police aren't going to bring someone to you because you aren't a deputy representing the state with all the powers derived therefrom.

quote:

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.

Exactly the kind of thing I was talking about when I said that what constituted hate speech was subjective. What's not hate speech one day can be hate speech the next, depending on what you say and who you say it about.

quote:

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,

I'm glad we agree!

quote:

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.

And this is good or bad?

quote:

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.

Who has the final say on what is true or not under the law, Keegstra or the state? If it's not the state determing what is true when presented with something that it thinks might be a hate crime, who do you think it is that's making the determination?

quote:


: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

I don't want you to take your time to go research it, but if it's anything like what is what is entitled to protection under 'freedom of religion' under American law, I can guarantee you that it's changed over time, which supports what I was saying about how subjective what is and is not hate speech can be.

quote:


(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.'

The court = the state.

quote:

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).

Oh, I see. You're right, I misapprahended. Thanks for the correction.

quote:

quote:

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.

Right, according to the guidelines of 319(2). I see now what you were saying. Pardon my ignorance.

quote:

quote:

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.

Tell you what, I will grant you that under the law as it stands, this may very well be the case right now. I think I am going to look into it a little more at some point (if I don't forget), and at least keep my eye on news out of Canada to see how it is interpreted in the future.

quote:

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.

I was just being flippant and basically trying to communicate that a judge/judges basically had to agree that something was 'hate speech' under the law.

quote:

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.

Of course, but you can't measure hate any way but subjectively. There is no real measurement of hate, no objective way to say these words constitute 5 hateometers worth of hate and these words constitute only 4, therefore these words are not hate speech and htose words are.

quote:

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.

It's not like that in America, either, but nevertheless, many people guilty of nothing more than believing the wrong thing at the wrong time got worked over by the system for nothing more than what they believed, by well meaning judges intent on protecting society from bad elements in society--just as Canadian judges are trying to do with hate speech laws.

quote:

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.

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

quote:

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.

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.

quote:

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.

Interesting.

quote:

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.

O.K. Interesting.

quote:

quote:

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).

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

quote:

quote:

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

Yes.

quote:
Do you support, for example, laws against libel?

Sure.

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

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

quote:

quote:

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.

There are other rights. Sometimes you have to weigh them and go from there, which is what we are doign in this thread.

Again, I was trying to imply that really wasn't in the mood to tackle any more. Sorry for not being more clear.

quote:

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).

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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twinky
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Okay, your last post clarified a few things for me. I understand what you're saying better now. Thanks. [Smile]

quote:
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.

It's because I think there is a simply enormous difference between (1) me misinterpreting what you say, and, (2) a minimum of 155 Members of Parliament (Parliament seats 308), not to mention no small number of attorneys and justices, all agreeing to an arbitrary extension of a law without consideration for legislative intent or judicial precedent.

When you said "make anything hate speech," I took "anything" quite literally, which is where I got the slippery slope from. That is, a handful of cases could suddenly balloon in to thousands of cases if Parliament took it upon itself to extend the definition of 'hate' to an arbitrarily broad level.

I do agree that "hate speech" is inherently a subjective term, and that the determination of what constitutes it is made by "the state" -- that is, various determinations are made by the legislature and the interpretations of the courts. So I've deleted the follow-up conversation threads on that topic, in the interests of keeping this post manageable.

I was basically asking if by "the state" you meant "the executive/legislative branch of government" (which in Canada aren't as starkly separated as they are in the U.S.). You seem to be treating the state as a monolithic entity when you say that the state decides stuff, but different parts of the state (and different jurisdictions within the state) can easily be (and frequently are) in opposition.

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

quote:
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.

I agree with all of this; I think the state was in the wrong in your example, and I hope the prosecution loses on appeal. I certainly don't think my government is infallible; I disagree with plenty of things that it does. That's particularly true in the case of the new Conservative government, but it was also true of the previous Liberal government. On a similar note to your example in the Canadian context, if you're interested, look into the dual issues of "security certificates" and the 2001 Anti-Terrorism Act. They were actually the catalyst for the first letter I ever wrote to a public figure (in this case, the Prime Minister, whose office referred it to the Minister of Justice).

quote:
quote:
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.

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.
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. [Smile]

quote:
quote:
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).

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

quote:
I resolve it by saying what I was trying to imply, I dont' wanna talk about that right now. [Smile]
Oh. Okay. [Smile] Sorry for being obtuse.

quote:
Does such a person exist that believes that no one can ever be told to, for instance, not yell in someone's ear?
MY GOODNESS, I HOPE NOT!

[Wink]

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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Storm Saxon
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Just to be clear on what I said earlier, it's not JUST beliefs.

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

quote:

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.

I need to reread the article, but it may change what I said before a little as far as that last bit goes. For some reason the website isn't letting me get to the article.
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Storm Saxon
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Here we go. From here

quote:

by Amy Waldman

.....

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.

That's just the first page. Not the entire article, in case anyone is wondering.
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