There is a showdown brewing in Ontario’s provincial parliament. The battle may be over a small piece of patterned cloth, but the principles at play are grand: free expression, cultural rights, and, most importantly, whether our relentless partisan divide leaves any room for reasoned political debate.

To recap, in mid-April, amid the Israel-Hamas war, Queen’s Park speaker Ted Arnott decided to ban the keffiyeh, the traditional patterned headdress worn by Arab people across the Middle East, from the Ontario legislature. Premier Doug Ford and the other party leaders all opposed the ban, but the effort to overturn the speaker’s order failed when a Progressive Conservative MPP refused to vote in favour of the unanimous consent motion. Days later, a second such motion failed again. And late last week, independent MPP Sarah Jama (previously of the NDP before being expelled from that caucus for her anti-Israel statements immediately after October 7^th) was banned from the chamber for her refusal to remove the keffiyeh. The Ontario NDP leader, Marit Stiles, now says that if the premier does not push for a reversal of the keffiyeh ban, the NDP caucus will defy the rules.

While the politicking plays out in Queen’s Park, the culture warriors have taken to their usual corners and have begun to make the expected arguments. 

Speaker Arnott reached his decision on the basis that “members’ attire” bearing “ logos, symbols, slogans, and other political messaging are not permitted,” a ban that has a long history in Ontario’s legislature. Naturally, those opposed to his decision then attempted to frame the keffiyeh as something other than political.  

The federal Justice Minister Arif Virani took to X soon after the speaker’s decision and wrote “the [keffiyeh] is an important cultural symbol” and that wearing it indicates “pride in one’s heritage.” Former Amnesty International Canada president Alex Neve called the cloth an “iconic embodiment of Palestinian culture and identity,” thus emphasizing its cultural role. And Stiles linked the ban to “anti-Palestinian racism, hate, and division.” 

The problem with this position is that it rings patently false to anyone with eyes, ears, and a cursory understanding of symbols. It is hard to deny that the explosion in the wearing of keffiyehs in North America in recent months correlates directly with growing anti-Israel protests. And the symbol is not being solely worn by those of Palestinian or Arab descent. (Just do a simple Google image search to see how many non-Arab students on campus encampments are sporting the keffiyeh.) Whatever its meaning at other times in history, wearing the keffiyeh in 2024 in Canada is not like wearing a lederhosen or a sari. 

In fact, those taking this absurd position themselves subtly (and sometimes not so subtly) concede the point. Neve, for example, writes that the Queen’s Park ban was put in place because the keffiyeh has become meaningful “to millions and millions of people in the desperate struggle to stand up for the survival of the Palestinian people and their culture.” You may agree or disagree with him that the survival of Palestinians and their culture is at stake, but “the desperate struggle to stand up” for those things sure sounds like a political endeavour. Jama drops the pretense altogether, saying “This is a political issue, my job is to be political, and so I will continue to wear this garment.” 

The other side of the debate, too, engages in discourse that gives off more heat than light. In a piece that represents much of the anti-keffiyeh position, Rahim Mohamed writes in the National Post that the kaffiyeh has an “unshakable association with Palestinian political violence,” suggesting that the “fishnet pattern scarf favoured by protesters is synonymous with militant Palestinian leader Yasser Arafat.”  

This argument is overwrought. Whatever the keffiyeh’s political meaning, it is not solely a political symbol. While it may not be the purely cultural symbol Minister Virani and others claim, it has a strong cultural component. Worn for practical reasons by Bedouins, the wearing of it predates the Palestine-Israel conflict which arose in the early part of the 20th century. And, surely, it has political and cultural associations beyond violence and Arafat. It was, for example, a symbol of the Palestinian working class in the 1800s who preferred it to the brimless Ottoman fez favoured by the upper class.   

But the key error in Mohamed’s argument is that, in trying to score a point, he subtly concedes something critical: that the problem with the keffiyeh in the legislature isn’t that it promotes bad politics, but any politics at all.

The more principled reason to oppose the keffiyeh in the legislature is that in a liberal democratic society, our deliberative institutions should strive for more reasoned, civil debate. The introduction of signs and symbols in our law-making institutions diminishes and coarsens the public discourse at precisely the moment we can least afford it.     

Regrettably, the space for reasoned debate in our society is shrinking alongside the space for non-political civic life. Every realm of public life is now infused with tribal political symbols. It is to our great detriment, and a sign of the ill health of our polity, that all things, from our beer and chicken sandwiches to the sports and comedy we watch, have become political battlegrounds. 

In this climate, it is all more important that we preserve institutions that foster articulate, respectful, pluralistic political debate. 

The institutions designed for this purpose have been weakened lately. Our universities, for example, have increasingly taken on institutional political positions, undermining their role as a forum for rigorous intellectual inquiry. Our public broadcaster is increasingly seen by the Canadian public as having a clear ideological bias. Even the office of the governor general has not been spared, having recently hosted an event that critics allege promoted the Trudeau government’s controversial Online Harms Bill.

The legislature holds a unique place in our polity and should aspire to more. While it should serve as the forum for political disagreement and debate, it should not itself be seen as partisan. And it should elevate our public discourse, instead of becoming yet another force that reduces nuanced topics to signs, pins, stickers, and placards. 

Opposing the keffiyeh for its alleged bad meaning naturally draws out the battle over that meaning, and invites another battle over the freedom of expression. It also invites future fights about the meaning of every other symbol that MPPs will hereinafter try to bring into the legislature. Is the Ukraine pin a good or bad symbol? The Black Lives Matter badge? What about the MAGA hat? Open this door just a little and we will be mired in a thousand battles about a thousand causes, logos, and signs.

The solution, then, is not to engage in a futile line-drawing exercise which will leave many stakeholders unhappy much of the time. Instead, it is to maintain the existing nearly blanket ban on political symbols. (I say “nearly blanket” because symbols like the Remembrance Day poppy are now permitted at Queen’s Park. But even that required a special exemption.) The ban avoids the problem altogether, allowing our core deliberative body to remain a place for reason above passion. 

We will likely never agree on the precise meaning of the keffiyeh (though we should at least strive to be honest in its interpretation; something the “it’s just a cultural symbol” crowd is not doing.) 

But we should agree that some corners of our society should be reserved for deliberation and debate instead of cheap appeals to emotion and tribalism. What better place for that than Queen’s Park?

As part of a paid partnership, this month The Hub will feature excerpts from this year’s five shortlisted books for the Donner Prize, awarded to the best public policy book in Canada. Our podcast Hub Dialogues will also feature interviews with the authors. The winning title will be awarded $60,000 by The Donner Canadian Foundation on May 8th.

The following is an excerpt from Pandemic Panic: How Canadian Government Responses to Covid 19 Changed Civil Liberties Forever (Optimum Publishing International, 2023).

Artur Pawlowski is a pugilistic street pastor and the founder of Street Church Ministers based in Calgary. He has never exactly been a shrinking violet and has embraced some truly kooky views.  Perhaps because of this, his conduct was countered with one of the most brazenly unconstitutional instances of a judge proscribing compelled speech in any Western democracy. 

When the COVID-19 pandemic hit, Pawlowski quickly became an outspoken critic of public health measures. As lockdowns and other public health measures dragged on, Pawlowski ramped up his incendiary actions. During Easter 2021, police visited his church following reports that it was flouting public health and social distancing orders. In a viral video, Pawlowski shouted at the police, “[g]et out! Get out immediately! Gestapo is not welcome here! Do not come back, you Nazi psychopaths! Detaining people at the church during the Passover!” On that occasion, police left, and no tickets were issued, but Pawlowski was arrested in May 2021 for organizing an in-person gathering during a brutal third wave of the virus. 

In 2021, after being found in contempt of court, alongside his brother Dawid, for violating a court order “directed at mitigating the risk posed by the novel coronavirus (COVID-19).” 

Shockingly, among the sanctions imposed on the two brothers by the Alberta Court of Queen’s Bench was the condition that whenever either brother criticized Alberta Health Services orders or recommendations, they must recite the following disclaimer:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms. 

This unusual order quickly raised concerns about its validity under section 2 of the Charter, which protects freedom of thought, belief, opinion, and expression, including the right to be free from compelled speech. “I said, I will not obey this court order,’” Pawlowski told Fox News at the time, before the order was stayed upon appeal. “I refuse to obey a crooked judge’s order. He’s not a judge, he’s a political activist.”  

Section 2 of the Charter guarantees Canadians the freedom to peacefully assemble, and to express themselves politically, and specifically protects the right to political dissent. The guarantee is content-neutral. Nonetheless, governments, and other government-sanctioned bodies such as regulators and administrators, implemented policies that had a chilling effect on free expression throughout the pandemic and directly restricted the right of Canadians to peacefully assemble to express their grievances with COVID-19 policies. 

Freedom of expression and peaceful assembly are fundamentally important to the functioning of Canada’s liberal democracy. They guarantee that Canadians can peacefully organize and express themselves in matters relating to public policy. Without these rights, governments would be free to act unopposed, and their policies, including unjust policies, would be uncontested. Without healthy questioning of authority, we can never be sure that the government is doing what is in our best interests and whether the evidence for their positions is sound.

Political expression is considered core expression, and as such can only be restricted for the most substantial and pressing government objectives, unlike other forms of expression such as pornography and advertising, which are marginal to the goals that underlie protecting free expression. 

There are at least three reasons why freedom of expression matters. First, it promotes truth-seeking: there can be no advancement of knowledge and testing of ideas without open discourse. Second, it is a condition necessary for the flourishing of democracy since there can be no political dissent and thus meaningful democracy without free expression. And third, free speech promotes individual autonomy since we develop as rational beings through unencumbered expression. 

Compelled speech has attracted particular attention by constitutional scholars for a number of reasons. The exchange of information and functioning of discourse depends on the basic premise that expression reflects something authentic to the individual. Once that perception is broken by an apparatus of the state prescribing words that we must say, we become fundamentally cut off from an important source of truth. Moreover, compelling speech appears to run dangerously close to compelling thought. Philosopher Charles Taylor wrote that language gives form to our feelings and ideas and brings them “to fuller and clearer consciousness.”  

The COVID-19 pandemic was the first in history that saw the conjunction of viral contagion and fast-moving social networks. Information spread even faster than a highly infectious virus, and even the most pro-free-speech countries resorted to measures that ordinarily they would reject as unconstitutional limitations on expression in a free society.  

In selectively censoring narratives that were critical of the dominant government response to the virus, governments undermined their own appearance of partiality and potentially even reinforced scepticism about the authority of public health. 

On the one hand, it’s clear that given the firehose of information that erupted early on in the pandemic, some streamlining of which facts could be relied upon and which could not was necessary. And the social media platforms are private companies, not governments. As civil libertarians, we tend to think that private companies, no matter how widespread their influence or how vital a role they play in society, ought to be able to make their own rules. Alternative social media platforms such as Rumble were available for those who did not wish to get their information on platforms that restricted content.  

However, when a restriction on speech is ultimately backed by government coercion, as in the case of a judicial order forbidding individuals from protesting or even communicating about the possibility of protesting online, or of a regulatory college policing the social media content of its member physicians, it’s different from a private actor’s decision. You may have a right to delete your Facebook account if you don’t like the platform’s policy on posting about COVID-19, but you don’t have a right to ignore a judicial order or law. Thus, only restrictions on speech that are both demonstrably necessary and sufficiently tailored should be acceptable under the Charter, particularly when the speech in question is political and thus at the core of the guarantee of free expression.