The similarities between the Abrams case and CIC v. Maclean’s are plentiful.  And it doesn’t require an astute legal mind to reconcile the two.

Their are, however, key points so critical and germane to the current dispute between the opposing camps that they must be highlighted and not overlooked.

1.  The Tribunal in particular and the expert witnesses recognized that the articles taken as a collection was a major contributing factor to the racist discourse.

2. Blatant overt statements are not necessary to promulgate discriminatory thought; the tone, specious arguments, playing on stereotypes and faulty analogies are powerful tools that masquerade racist ideology.

Moving Beyond the Debate of Freedom of Expression and Other Obfuscations

Putting aside this ostensible debate between free speech and the right not to be a offended, a clever ploy by the writers and publishers who are disseminating the discriminatory messages, and stepping away from the appropriateness of human rights commissions as a legal forum to advance such claims (another tactic), there is much to take away from the Abrams case and the multitude of academic literature in related domains.

Mr. Abrams, with no doubt support from the intervener on his behalf B’nai Brith, had the benefit of a litany of expert witnesses to deconstruct the articles and explain their effects.

Eminent scholars and professionals on racism, journalism and linguistics submitted in depth analyses and gave testimony to the effect that the subtle tactics employed in the articles may not be perceived as discriminatory to the average reader but in fact are full of pejoratives and discriminatory language.

Further, it was well noted that the consistent dissemination of these discriminatory themes to the local community through newspaper publications will effectively transmit these messages in a covert form.

The larger academic community has shed light in this area through numerous empirical studies in various fields.  Very recently, and highlighted on this site, the ‘turban effect’ was explained to be an implicit and nonconscious bias that many individuals hold without their knowledge against people of the Muslim faith.  The head researcher attributed this phenomenon to on one-sided media portrayals.

Additionally, a vast majority of psychological studies have noted that consisted exposure and priming of derogatory images, words, thoughts and expressions when paired with a specific group can cause the mind to nonconsciously associate these negative thoughts with the targeted population.

When an individual is consistently digesting material that couples a group (Muslims) with a negative association such as Islamist, terrorist, fundamentalist etc., then that individual’s mind will be trained to nonconsciously hold a negative association towards that group - even if the intent is not to portray ‘all’ Muslims in this light.  This effect is heightened and exacerbated through stereotypes. This is the type of mental programming that the press can impose when circulating persistently negative topical portrayals.

And the list of relevant academic research goes on… 

Another Example of a Community’s Concerns Being Disregarded by Maclean’s Editor Kenneth Whyte

Many critics have advocated for a resolution outside government intervention between Maclean’s and the CIC and Muslim community.  According to the CIC and its advocates this position was simply not feasible for numerous reasons, many of which were outside their control.  

Other minority organizations have had similar experiences with editors and publishers.  The situtation described below is an example of a minority organization trying to resolve a concern they had with one sided portrayals and being pushed aside by current Maclean’s editor-in-chief Kenneth Whyte. 

Around the time of the new millennium, The National Post’s Diane Francis openly admitted to being on an anti-immigration ‘crusade’ with particular reference to the Chinese boat people who began arriving in British Columbia in 1999.

In her writings she attacked Canada’s immigration and refugee policies, and the immigration minister for a malfunctioning refugee system.

To do this she resorted to innuendo, relevance, misleading statements, ridicule and hyperboles.

Her misguided articles did not go unnoticed.  The Centre of Excellence for Research on Immigrant Settlement organized a seminar specifically addressing Francis’s biased columns.

During this period the Canadian Council of Refugees was performing a media watch about the arrival of the Chinese refugees and it was the National Post that contained the strongest anti-immigration perspective.  They then wrote to Kenneth Whyte, then Post editor-in-chief, in protest about the disproportionate amount of negative news stories and commentaries concerning refugees and immigrants in Canada.

The Post’s lawyer replied with a letter stating:

The menacing tone of your letter and its slanderous allegations cannot form the basis of any constructive discourse between your Association and the newspaper.

Subsequent letters and emails to the editor and Diane Francis were simply ignored.

No human rights commission, no attempted “censuring” of free speech and no resolve.  The immigrant community bearing the adverse effects of this one-sided media portrayal was left with the insurmountable task of fending themselves from the attack of this media conglomerate.

Conclusion

The power of the press is a well documented phenomenon capable of infecting our institutions, government, education and social climate with very harmful views.  In the present CIC v. Maclean’s case the Respondents and several right-wing and some left-leaning journalists have failed to acknowledge that their is a problem and shifted the debate to one between free speech, hurt feelings and human rights commissions.

If it wasn’t for the fact that the CIC’s complaint is in effect waged against a profession and the very same journalists, pusblishers and editors being scrutinized for their abuse of powers, this would be somewhat surprising in view of all the research and documented complaints providing evidence to the contrary.

A review of human rights commissions and their powers may very well be in order but that is an issue distinct from the fact that large scale media organizations are imputing messages to the population at large through their one-sided portrayals and vitriolic commentary.

As a newbie on the blog scene I’d like to give some recognition and show our gratitude to Law is Cool for showing some support and sending traffic this way.

They are one of the few blogs to provide a balanced and comprehensive report on the CIC v. Maclean’s situation and present objective posts on a myriad of other issues.

Those bunch of quirky law students are doing a great job!

This second installment will focus primarily on past jurisprudence.  In particular, nearly 10 years back a strikingly analogous case was decided by the BC Tribunal, Abrams v. North Shore Press.

Summary of Facts

In the winter of 1993-94, the complainant, Harry Abrams an active member of the Jewish community in Victoria, began reading a ‘new’ newspaper, The Daily Victorian.  He became concerned about columns written by Doug Collins that he felt contained race-baiting themes that villified Jews. 

He subsequently discovered that these columns were syndicated versions of columns that appeared in the North Shore Newspaper which had a larger reach to communities across from Vancouver on the North Shore of Burrard Inlet.

Mr. Abrams then proceeded to file a human rights complaint under s. 7 of the BC Code. In particular, he alleged “that the continual barrage of articles written by Mr. Doug Collins promoting his views on Holocaust revisionism and Jewish conspiracies, have a cumulative affect [sic] of promoting hatred and contempt towards Jewish people.”  (Note: Although the columns were the work of one author, the complaint was filed against the organization; all articles in question can be found at the appendix of the decision linked above).

Arguments and Evidence

The Respondent failed to present any evidence on the issue of s. 7.  Their defense focused on the constitutionality of the provision which the British Columbia Supreme Court subsequently ruled was a matter to be decided by the Tribunal (Note: This issue is more complex than presented but outside the parameters of this particular post).

The Complainant relied on a number of articles, many of which were not part of the original complaint.  The Tribunal found that individually they were not helpful, only when taken in context as evidence with the other articles published. 

Expert Testimony

Dr. Frances Henry, a highly regarded professional in race relations and discrimination qualified to provide an opinion on anti-Semitism in society, and on the identification and effect of anti-Semitic propaganda reported in the Canadian media.

She expressly noted that the more serious forms of racism are those that are hidden in popular culture, such as in the words, images and descriptions used by media writers.

Techniques utilized in the reviewed articles were that of trivialization, indirect racism (i.e. not denying the holocaust, rather, stating that the numbers are greatly exaggerated), playing on popular stereotypes.

Her conclusions are as follows: 

…it is my opinion that any reasonable person would perceive discriminatory and biased ideas and statements in the four articles written by Doug Collins.  Although he does not make overtly anti-Semitic statements, the tone of the articles reveals little regard for Jewish people of their history.  Mr. Collins perpetuates the stereotypes against Jews especially those which allege widespread power and influence.

Dr. Barbara Harris is a professor of linguistics who applied a process known as discourse analysis to the four articles.  This technique looks at language in its interactional phase between a writer and a reader.

Her analysis concludes:

In short, these four articles are full of pejorative and derogatory language, and the rhetoric depends on devices intended to put the author in good light … expressed through faulty analogy, specious arguments and undocumented ‘facts’.  To the uncritical reader, they would undoubtedly say that Jews are powerful, vindictive, and hypocritical in upholding the historicity of an event the magnitude of which Collins and his fellows deny.

Another key factor considered during the decision making process was the fact of the vulnerability of the group being written about and the historical discrimination it has endured.

Additionally, it was made clear by several of the expert witnesses that print media and local newspapers are major transmitters of society’s standards, myths and images and that the media has the power to promulgate messages to effectively transmit discriminatory message in a covert form.

Decision

As the written decision by the Tribunal was brief and succinct, the whole decision is reproduced below:

Individually, and taken out of context, each of the four columns at issue might not convey messages that meet the high threshold that is necessary to be considered hatred or contempt within the meaning of s. 7(1)(b) of the Code.  However, collectively they do.  They repeatedly reinforce some of the most virulent forms of anti-Semitism.  They convey the message that Jews, individually and collectively, are selfish, greedy and manipulative; that they have conspired to control government institutions and the media; and they use that control to perpetuate inflated figures concerning the victimization of Jews during the Holocaust and to persecute anyone who speaks out against them.

The publication of these messages in a community newspaper that is delivered to almost every home in the community is likely to increase the risk to Jewish people of being exposed to hatred and contempt because of their race, religion or ancestry.  Mr. Collins expresses hatred or contempt indirectly and subtly.  He does not overtly incite hateful or contemptuous expressions.  However, he reinforces negative stereotypes of the Jews that have been promulgated for centuries.  Further, publication of these ideas in a credible newspaper increases the likelihood that others will manifest hateful and contemptuous views in a more directly harmful manner.

I find that the four columns, which were written by Doug Collins and published by the North Shore News, and which were the basis for this complaint, are likely to expose Jewish persons to hatred or contempt because of their race, religion or ancestry contrary to s. 7(1)(b) of the Code.

As the decision in the highly publicized and controversial Canadian Islamic Congress (CIC) v. Maclean’s BC Human Rights Tribunal case is due to be rendered any time now, I thought it would be fitting to preview some of the issues germane to litigation under section 7(1)(b) of the BC Human Rights Code and to counter some of the baseless attacks on human rights commissions generally.

If you’re looking for misinformed rhetorical diatribes and miscontrued rantings on these topics (and most likely others) please peruse these sites here, here, here, here, here, and here.  I am referring to the type of far right thought that attempts to befuddle the public and gain political support through chicanery and subterfuge whilst keeping clear of the real problem(s) in question. 

For a more factual and less partisan perspective read on…

The central focus of this ‘rant’ will revolve around the powers of human rights tribunals (for the sake of clarity and consistency human rights tribunals and commissions will now be referred to collectively as HRCs).  In particular, the powers that mandate HRCs to curb discriminatory publications and their remedial effects (also known by its critics as its egregious ability to “censure free speech” ), and the judicial support and affirmation of its objectives specific to discriminatory publications.

The infamous referential epithet ”kangaroo court” has been used to discredit HRCs, including their powers, capabilities, processes and staff.  The fulminating critics explicitly emphasize that issues so fundamental and pivotal to Canada’s liberal democracy, such as laws censuring free speech, should be left to our ‘real courts’ and judicial system.

What often gets left out are some of the critical facts and points of law necessary to substantiate such a dysfunctional portrait of HRCs.

First, Human Rights Codes are drafted by parliament, in the same fashion and manner as other laws that are litigated through Canada’s civil and criminal courts.  Tribunals are simply applying the law according to their respective Codes through the powers downloaded to them by government and parliament.

Second, the Supreme Court of Canada (SCC) has explicitly endorsed HRCs as a better way to combat hate propaganda and discriminatory publications:

…human rights statutes are pointed to as being a less severe and more effective response than the criminal law.  Such statutes not only subject the disseminator of hate propaganda to reduced stigma and punishment, but also take a less confrontational approach to the suppression of such expression.  This conciliatory tack is said to be preferable to penal sanction because an incentive is offered the disseminator to cooperate with human rights tribunals and thus to amend his or her conduct (R. v. Keegstra, [1990] 3 S.C.R. 697).

Third, in the now famous Taylor case (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892) the SCC upheld the constitutionality of s. 13 of the Canadian Human Rights Act which makes it unlawful to publish material that is likely to expose a group to hatred or contempt.  Essentially identical to s. 7(1)(b) of the BC Code, the provision the CIC filed its complaint under.

Although this provision has withstood a consitutional challenge, the respondents and their supporters have declared their desire for the CIC v. Maclean’s case to be granted leave to appeal to a ‘real court’ and, if necessary, to the highest court in Canada.

All the while, they have argued that HRCs were formulated to safeguard discriminatory practices in employment and landlord/tenant disputes and should not be used against private, media corporations.  To strengthen this claim, they have garnered support from civil libertarian and one of the pioneering advocates for human rights tribunals, Alan Borovoy.

It is their view that combatting racist speech is not within the purview of HRCs.  The Codes, laws and mandates should not evolve, they should be stagnant.  They scoff at the notion that Human Rights Codes should move beyond their initially intended purpose (30 plus years ago) into areas that may require attention in the present context.

Now the ubiquitous hypocrisy from the right-wing…

They expect HRCs to stay true to the initial intent of its crafters (the type of prescient foresight the Charter of Rights and Freedoms does not even hold) yet they hope to re-challenge the validity of discriminatory publication provisions in the BC courts and perhaps again in the SCC.

To put it simply, in their view the consitutionality of s. 13 of the CHRC may change over two decades to fit the present political climate–one created by their own media campaigning–but the purpose of HRCs must stay frozen and not intrude in areas where discrimination may exist but was not initially recognized.

Thus, when trying to protect the vulnerable and marginalized we must not venture into unchartered waters, but to ensure the status quo we must re-try and scrutinize any laws to the contrary.

Legal Means are Somehow a Disservice

In the latest attack on the far-right’s official Islamic target, public face of the Canadian Islamic Congress Mohammad Elmasry, Rory Leishman, freelance writer for the London Free Press touts the oft too cited fallacy that it is Muslim representatives (Elmasry in particular) who use legitimate legal means to combat ill-will against their community who are disservicing Canadian Muslims and not the hodge-podge of conservative writers.

Ironically, it is not I, Mansur, Steyn or the editors of Maclean’s who are ill-serving Canadian Muslims. It is Muslim leaders like Elmasry. By using rights tribunals to intimidate and silence critics, these authoritarian Muslims are undermining the fundamental freedoms of all Canadians, Muslim and non-Muslim alike.

In the quote above, I included his added obfuscation and conflation of the real issue at hand–Islamophobia–with his ostensible fear of the abolishment of fundamental freedoms for all and the improper use of human rights tribunals - perhaps some of the attack dogs will learn a thing or two about appropriate journalistic practice.

But before we delve in and deconstruct Leishman’s palpably misconstrued defensive-offense, let’s take a brief glance at the background of Mr. Leishman.

Who is this Leishman Fellow?

Hmm…according to his own webpage, he is a “member and director of Civitas, a non-partisan, national association of conservative academics, journalists and political activists.”

Pointing out the hypocrisy in this one is all too easy. The fact that he has been singled out as a homophobic writer, coupled with his long list of conservative supportive insights is as far as I will take this one; no need to unravel anymore layers, indeed, I am now totally convinced his organization is non-partisan in their writing and activism.

Besides, since when was activism and writing ever politically oriented anyway?

Let’s Be Clear Here

Getting back to the real issue (again, for most of you neo-conservative writers and bloggers it would be a good time to take out your pads and take note of this), in Leishman’s ‘opinion,’ by trying to shield himself and his community from the inflammatory and vitriolic commentary which constitutes Islamophobia, it is Elmasry who is doing more harm to his community than the very writers creating the anti-Islamic climate.

Therefore, the persons trying to prevent what translates into insidious, overt but more often covert forms of discrimination are more dangerous than the individuals unleashing the fury.

Let’s be clear here, this is no question of the chicken and the egg, Islamophobia and virulent rhetoric precipitated defensive attempts such as Elmasry’s by a long-shot.

Furthermore, Islamophobia and the solutions to its dissemination through Canada’s media network should be seen as distinct from issues of fundamental freedoms as the two are not necessarily conjunctive.

If not for the fact that this is a legally sanctioned route, provided by the state to curb discrimination in specific spheres, then for the fact that, according to the far-right, Muslims don’t have a firm understanding of the culture and historic traditions of a true democracy and are simply using services provided to the entire Canadian population.

They can’t be both ignorant, unalterable aliens invading our state and at the same time expected to comprehend this version of democracy, with deep historic roots that allows freedom of speech to trump the livelihood and equal treatment of minority communities within this great nation.

This is not the first and certainly won’t be the last time that minority populations feel denigrated by media characterizations and portrayals; the issue isn’t and never was about censuring free speech, it is about not being disadvantaged and targeted by racialized discourse.

On January 15, 2000, then fill-in anchor for CTV Newsnet Avery Haines made what turned out to be a very poor judgment call during the taping of her report. Moving past her minor script blunder, she continued on by ranting to an off camera technician, as she assumed that this would not get aired, by making fun of a variety of minorities:

I kind of like the little stuttering thing. It’s like equal opportunity, right? We’ve got a stuttering newscaster. We’ve got the Black, we’ve got the Asian, we’ve got the woman. I could be a lesbian, folk-dancing, Black woman stutterer. What’s that? In a wheelchair … with a gimping, rubber leg. Yeah, really. I’d have a successful career, let me tell you.

Naturally the segment was re-done but due to a technician’s mistake, the tape with the derogatory comment was aired later on that day. Avery Haines was fired from her position two days later during a time of heightened controversy over her remarks.

Several non-governmental organizations raised complaints that Haines’s comments were a reflection of the widespread bigotry against minorities in Canada.

This incident prompted many of her media colleagues in a frenzied defense of her actions and therefore the profession itself.

Borrowing heavily from Henry and Tator’s work on how the media responds to an attack on itself (Discourses of Domination: Racial bias in the Canadian English-Language Press), we can see how the media “closes ranks when one of their own has made inappropriate remarks.”

Outlined in their work is the identification of rhetorical strategies and argumentative discourses utilized by the profession to defend one of their colleagues. For a full analytical description of these strategies please visit the authors’ page here. For now, a satisfactory description of the first and most often used tactic will be layed out, followed by a simple listing of the remainder.

Discourse of Denial: This is Not Prejudicial or Discriminatory Behaviour

- Denial is usually followed by claims that people of colour and other minority groups are hypersensitive about prejudice and discrimination and often see bias where there is none.

These denials are based on a very limited understanding of how racism manifests itself in contemporary society. As noted in a previous post, racism is not the overt expressions that most journalists see as problematic and discriminatory, it is of a more sophisticated kind, draped in clever rhetoric and usually aligned with extreme political movements.

Examples of the discourse of denial:

• ‘There was nothing insulting or derogatory about what she said.’ (Christine Blatchford, This is CTV. You Will Not Be Funny,’ National Post, 18 January 2000).
• ‘Neither Mr. Kowalski nor anyone else has yet identified what, precisely was so objectionable in her comments.’ (Andrew Coyne, ‘To Air Is Human,’ National Post, 19 January 2000).
• ‘One of the most active groups in challenging discrimination in this country is the Canadian Jewish Congress and it is significant that it has issued not a word about the incident.’ (Michael Coren, ‘Apology Should Have Ended It,’ Toronto Sun 20 January 2000).

The Discourse of Reverse Discrimination: Avery Haines is the Real Victim

The Discourse of Rationalization, Justification, Minimalization, and Mitigation: ‘It Was Only a Commonplace Joke Heard Everyday; It Was the Techies Fault’

The Discourse of Otherness and Bipolarization: Political Correctness, Identity Politics, and Tyranny of Special Interest Groups versus Avery Haines, the Good, Compassionate, Fair-Minded Individual

The Discourse of Coercion and Oppressive Public Policies: Employment Equity Legislation is an Unneccessary and Discriminatory Intervention

The Discourse of Popular Support; Most People Don’t Think What Avery Haines Did Was Wrong

This aforementioned list of strategies is not exhaustive; they are the ones most commonly employed to the specific situation discussed above. Stay tuned for a more representative, analysis with modern day relevance; although through time the tactics used simply resurface in a cyclical manner through various forms of rhetoric and different guises.

More Likely to Shoot Innocent People

In a recent piece by Shannon Proudfoot, the “turban effect” is explained as an implicit, prejudicial bias existing in individuals without their knowledge.

The study was headed by social psychologist Christian Unkelbach of the University of Heidelberg. According to the report,

People were much more likely to shoot Muslim-looking characters — men or women — even if they were carrying an innocent item instead of a weapon.

The stereotypical cue used to identify people of the Islamic faith in this research paradigm was the Muslim turban. The results showed that:

Whether they’re holding a steel coffee mug or a gun, people are just more likely to shoot at someone who is wearing a turban.

The study confirmed that people generally do not realize that they hold these inherent biases. When debriefed to the purpose of the study participants insisted they were not prejudice.

Typical of the modern form of racism prevalent in our society participants denied any racially motivated, unfair distinction. What was particularly interesting was that professor Unkelbach largely blames one-sided media portrayals for this bias.

This type of finding is not something new.

Implicit Bias Recognition Towards Minorities

Although very few studies have used implicit bias recognition tasks to affirm Islamophobic sentiment in select populations, individuals harbouring implicit biases towards minorities, especially blacks, is well documented. One of the heavily supported theories of this advanced form of subtle and nonconscious racism can be attributed to the work Samuel Gaertner and Jack Dovidio in their 1986 publication The Aversive Form of Racism.

Unlike old-fashion blatant racism and bigotry, characterized by overt forms of discrimination such as cross burnings of the KKK, or discriminatory policies forcing blacks to sit at the back of the bus, aversive racism is more subtle and some might even say insidious.

Aversive racists are on the whole well-intentioned people who typically:

1. avoid acting in a racist manner
2. support public policies that promote racial equality
3. sympathize with victims of past injustice
4. identify with liberal political agendas
5. possess strong egalitarian values
6. regard themselves as non-prejudiced.

However, aversive racists almost unavoidably possess negative feelings and emotions about African-Americans and other minority groups. According to Dovidio and Gaertner (1998), these feelings are thought to be based on factors such as:

• a) socialization experiences in local cultures with racist traditions and;
• b) the ongoing competition between social groups in a world with little resources.

What underlies this specific form of racism is that aversive racists possess strong egalitarian values. When a situation arises where a discriminatory act, decision, policy or statement would be obvious to oneself and others an aversive racist will not discriminate.

On the other hand, in a similar situation where the discriminatory act would be ambiguous or where it could be strongly justified, aversive racists’ harboured feelings towards the targeted group will be realized.

Moreover, distinctions have been drawn between people holding different political views. For example, it has been demonstrated that when conservatives are placed in a situation where cues for helping people were strong but the need to conceal one’s bias was at a minimal, conservatives favoured a European American over an African American. Whereas in the same situation, liberals helped both groups about equally (Gaertner, 1973).

Linking Media and Aversive Racism

The link between the media and aversive racism or nonconscious and latent racism has also been documented.

The term democratic racism coined by Frances and Tator (1994) stems from much of the psychological theories with more of an emphasis on ideological perspectives in a social and institutional framework. Accordingly, democratic racism is defined as:

…An ideology which permits and sustains the ability to justify maintaining two apparently conflicting values. One set of values consists of a commitment to a democratic society motivated by egalitarian values of fairness, justice and equality. Conflicting with these liberal values are attitudes and behaviours which include negative feelings about people of colour and which carry the potential for differential treatment or discrimination against them. In its simplist form, democratic racism is an ideology that reduces the conflict between egalitarian and non-egalitarian values.

It is Frances and Tator’s contention that democratic racism is part of the discourse of dominance that is used to establish, reinforce, and sustain racism in society, including the media.

Specifically, it is their view that the flexible meanings of tolerance, equality, and freedom of expression - central concepts of fundamental liberalism - often become the language and conceptual framework through which intolerance and exclusion are enabled, reinforced, defined and defended.

For example, liberal principles that include the primacy of individual rights over collective rights, freedom of expression, equal opportunity and tolerance have been used against marginalized and excluded groups. This is due to the paradox that liberalism is both egalitarian and inegalitarian.

Need for More Studies Making Direct Links

As previously noted, there is an absence of studies making direct psychological links to Islamophobic cognitions.

This is true in spite the over-abundance of research laying the groundwork for the notion that implicit discriminatory ideology is, at times, pervading our institutions through the minds of the advantageously situated and elite.

Hopefully findings like the “turban effect”, that make inextricable links between prejudicial biases and Islamophobia, will add to the social scientific findings which demonstrate that Islamophobia is a real and pressing problem in society and throughout the media.