When the federal government presented its plan to regulate and censor online speech via the Online Harms Act, Justice Minister Arif Virani was proudly flanked by representatives of the country’s most prominent Jewish and Muslim advocacy organizations, a signal that the minister had the support of two minority groups targeted frequently for hate.
The Centre for Israel and Jewish Affairs (CIJA), however, as well as other Canadian Jewish organizations like B’nai Brith Canada and the Friends of Simon Wiesenthal Center, appear to have gotten cold feet once they caught wind of the type of bureaucrat the Liberal government sees fit to police speech.
No government should put itself in a position to censor its citizens’ “hate speech,” an amorphous concept that has been inadequately tested by Canadian courts and thus leads to very few charges and even fewer convictions. Furthermore, no Jew should purport to speak for Canada’s Jews when they work in tandem with governments to censor ordinary bigots; the Online Harms Act in fact undermines both Jewish and Western legal traditions.
For Jews who value free speech traditions, even those protecting the rights of our ostensible enemies, it should come as no surprise then that the antiracist bureaucrat chosen to administer the newly expanded censorship mandate of the Canadian Human Rights Commission is, as they say, problematic.
Proposed nominee Birju Dattani, who will have powers to hear complaints of online hate speech from any member of the public and impose up to $20,000 in fines, has a history that suggests an obvious bias against Israel, and by extension the majority of Jews who support its existence.
Using the name Mujahid Dattani, he has shared articles that compared Israel to Nazi Germany, spoke on a panel in the U.K. with a member of Hizb ut-Tahrir, an Islamic fundamentalist group that seeks to establish a new caliphate and opposes the existence of an Israeli state, repeatedly lectured during “Israel Apartheid Week” at British universities about the Boycott, Divestment and Sanctions (BDS) movement, which exclusively targets Israel, and gave a talk in Turkey where he claimed that “terrorism is not an irrational strategy.”
CIJA’s president conceded that the appointment “would prompt new questions about the whole suite of initiatives the government has put forward to address hate, including the measures proposed in Bill C-63,” going on to emphasize that he had lost confidence in Dattani’s judgment and impartiality based on his past.
Canadian Jewish organizations’ demand that the appointment of an individual who has repeatedly shown poor judgment be retracted certainly makes sense. But the Birjani incident ought to prompt a deeper reflection on the part of the Jewish community and the organizations that purport to represent us and our interests.
This entirely predictable case of government appointing a bureaucrat with priors that alienate the Jewish community and its interests should trigger the realization that government regulation will never save the Jewish community from the ever-mounting antisemitism in our midst. A concept known among historians as the Weimar Fallacy suggests that the censorship of hate speech not only failed to stop the rise of the Third Reich in the former Weimar Republic but accelerated it.
“Germany then had multiple laws that restricted hate speech, insulting speech,” explained Former ACLU President Nadine Strossen, speaking for the Foundation for Individual Rights and Expression (FIRE). Weimar Germany had enforced “laws against defamation or insulting a religion, including the Jewish religion. And all of those laws were very strictly enforced, including by the leading Jewish organization at the time… Many of the leading Nazis were repeatedly prosecuted and convicted… Hitler himself was actually banned for several years from public speaking.”
Parallels with today’s Online Harms proposal are obvious. Even more troubling for classically liberal Jews was the Weimar-inspired addition of criminal antisemitism including Holocaust denial as an offence, subtly slipped into a 2022 budget bill, again with the support of CIJA and other Jewish antiracism advocates. To help keep Canadian Jews safe, it must be removed from the Criminal Code. Even after the deluge of hate following October 7, 2023, no Canadian has been charged with the offence, which exceptionally requires the approval of the justice minister—one who has lost the confidence of Canada’s Jews and supporters of Israel.
The appointment of an individual with a clear track record of embracing antisemitic viewpoints, whether as a result of laziness or poor judgment on the government’s part, is not a bug but a feature of relying on government mandarins to make hard calls about speech—a standard that is inherently subjective and relies materially on the personal sympathies of the bureaucrat. It is a lucky accident that Birjani left enough digital breadcrumbs to make his biases clear. The views evinced in the tweets are hardly anomalous amongst antiracist bureaucrats, and any Birjani replacement is likelier than not to brook similar views.
Canadian Prime Minister Justin Trudeau speaks during the Antisemitism: Face It, Fight It conference in Ottawa on Tuesday, Oct. 17, 2023. Justin Tang/The Canadian Press.
The ideology of intersectionality, which is feeding the current wave of antisemitism, divides people into a binary of oppressor and oppressed and places Jewish people squarely in the category of “oppressor” due to our perceived prosperity and influence. If you are still scratching your head about why the concerns of our community have been repeatedly met with disbelief, this is why.
If Jews are meant to be canaries in the coal mines of hate, as our unelected advocates remind us incessantly, then placing us at the forefront of censorship experiments that historically have led to further hate, enduring conspiracy theories, political instability, mass violence, and death is a terrible plan. More broadly, the insistence that the government must suppress speech leads to the perception that Jewish people require special protection and are pitiable victims (read Dara Horn’s brilliant People Love Dead Jews to get a sense of where this leads: lots of vaunted Jewish memorials and cemeteries, rather than vibrant living communities).
Censorship sends speech underground, where it might be out of sight but is actually more harmful to us, and prevents us from confronting the real hate in our midst in the best way we know how— through reasoned argument, social capital, and historical learning.
Moreover, the millennia of Talmudic wisdom evince a clear and consistent policy of liberality and non-interference in other cultures and legal systems: the Jewish tradition of Dina de-Malkhuta Dina teaches us to thrive under the laws of the state we find ourselves in rather than lobby for special exceptions to the law. The Talmud itself is written to emphasize dialogue, within and in relation to others; many liberal free-speech traditions are, in fact, Jewish in origin.
The history of how hate speech laws are applied shows that they are more frequently used to oppress minorities than empower them. Legal philosopher Edmond Kahn, in a speech at Hebrew University in 1962, pointed out the absurdities that would result from harassment laws being enforced uniformly:
The officials could begin by prosecuting anyone who distributed the Christian Gospels because they contain many defamatory statements not only about Jews but also about Christians; they show Christians failing Jesus in his hour of deepest tragedy. Then the officials could ban Greek literature for calling the rest of the world “barbarians.” Roman authors would be suppressed because when they were not defaming the Gallic and Teutonic tribes they were disparaging the Italians.
None of the antisemites who were behind the Dreyfus affair were ever prosecuted, while Emile Zola was imprisoned for his masterful J’accuse. And censorship in Weimar Germany made Hitler a martyr.
The standard defence against such concerns is that judges and appointed bureaucrats will show good judgment and apply inherently vague and overbroad laws wisely. L’affaire Dattani should be a rude awakening at the folly of this belief.
