Is it ‘neutral’ to spread lies?

The Canadian Human Rights Commission has a 100 percent conviction rate for hate speech cases, and rights commissions routinely make bizarre decisions upholding, for instance, the right of fast-food workers not to wash their hands. Right? Wrong. These false claims and more have been carelessly spread by Canadian news media, writes Richard Moon, Professor of Law at the University of Windsor. Too often, he argues, journalists treat alleged facts as if they were opinions, channeling them to the audience in the name of “balance” without context or verification.

In the Fall of 2008 I prepared a report for the Canadian Human Rights Commission (CHRC) on the legal regulation of hate speech on the Internet. In the report, I recommended the repeal of Section13 of the Canadian Human Rights Act so that the CHRC and the Canadian Human Rights Tribunal (CHRT) would no longer deal with Internet hate speech. As I was preparing the report, I became aware of what can only be described as a disinformation campaign against human rights commissions – a campaign that owes its success in part to mainstream news media reports.

I am sure it comes as no surprise to anyone that some Internet blogs post false and malicious things about the CHRC. The problem is that these claims have seeped into mainstream discourse – they have been taken up by members of Parliament, they have been adopted in editorials in the National Post and columns in The Globe and Mail and Maclean’s magazine and in a host of other publications, and they have been repeated on radio and television current affairs programming. 

They have created in the larger public – or a significant element of the public — a “feeling” that there is a serious problem with human rights commissions, and in particular the Canadian commission, that needs to be addressed. 

There is a serious debate to be had about the regulation of hate speech by HRCs. But the debate is difficult and complex and there are many reasonable positions one can take on the issue. The most vociferous and indeed the most media-amplified critics of the CHRC, Ezra Levant and Mark Steyn, are not interested in this debate. It is easier and, it seems, more effective, to exaggerate the case – to invent injustices, and engage in personal attacks.

This approach has several related strategic advantages:  
•    The case against the CHRC becomes clear-cut. All complexity is washed away. There are no longer competing interests or trade-offs that need to be addressed.
•    The attack on hate speech regulation, when based on the corruption and incompetence of the commission, undermines the entire human rights commission process and not just the regulation of hate speech.
•    The attack on human rights commissions can be made without having to defend unpopular ideological positions. Specifically, the regulation of hate speech can be attacked without having to rely explicitly on a libertarian free speech position — the claim that speech should never be subject to limits.
•    And, of course, it appears that this style of attack (personal and extreme) gets attention and is an effective means of self-promotion.

The false claims made by the critics of the CHRC and repeated or recycled in the mainstream media include the claim that the CHRC has a 100 percent conviction rate for Section 13 cases and that the members and staff of the CHRC engage in corrupt behavior, such as posting racist comments on neo-Nazi websites. 

These claims are false or misleading. Take the “100 percent conviction” claim. Of the 73 complaints under Section 13 that the CHRC received between January 2001 and September 2008 (a number that excludes those ruled trivial or vexatious), 32 were dismissed after investigation by the CHRC and did not go to adjudication before the Canadian Human Rights Tribunal. Ten more complaints were resolved through mediation, and only 16 were adjudicated by the Tribunal. It’s true that the Tribunal upheld all 16 of the adjudicated complaints (a “100 percent” that is not all that surprising), but that’s half the number of complaints actually dismissed by the Commission.

Similarly, as I show in a longer version of this article published in the Spring 2010 issue of the Saskatchewan Law Review, the claims of corruption on the part of the CHRC have no foundation. A complaint that CHRC staff hacked into a private computer system was dismissed by the federal Privacy Commissioner.

The techniques used by critics of the human rights commission are sadly familiar. They include:
•    identifying one or two commission or tribunal decisions which seem unreasonable in their outcome, and presenting them as if they are representative of the larger body of decisions;
•    when describing a particular case,  highlighting certain facts or findings and omitting mention of others to give a misleading picture of the case;
•    relying on dubious sources and reporting their claims as if true and uncontested;
•    using terms in a way that is intended to mislead the audience, i.e. making a claim that with some strain on the language may be ‘true’ but which on an ordinary reading (the reading encouraged by the speaker) is false;
•    making blatantly false factual claims; and finally
•    engaging in personal attacks against those with opposing views, in order to undermine their credibility. 

The Internet has been the breeding ground for many of the false claims made about the CHRC. The audience for the blogs of Levant and other CHRC critics, while not insubstantial, is still relatively small and generally confined to like-minded individuals, who are receptive to the claims made. But when the content of these blogs passes into the mainstream media, not only does it reach a larger and more politically diverse audience, it acquires greater credibility.

Why have mainstream media outlets been willing to provide a platform for spin against human rights commissions and thus to give it credibility?  Why have they not corrected or contradicted the false claims? There are several reasons for the media’s failing.

The most obvious is that media reporters and interviewers have limited time and resources, making it difficult for them to fact-check – to confirm or correct the claims made. This is not just a regrettable but unavoidable problem; when newspaper chains cut back their spending on journalism, reporters must often rely on information provided to them by political and corporate public relations representatives. (See John Nichols and Robert W. McChesney, Tragedy & Farce, The New Press, 2005, p. 24.) And, of course, the more these claims are repeated in the media, the less it seems necessary to check their accuracy. But there are other more significant factors that seem to support non-critical reporting of these claims.

The first is the desire by most mainstream media outlets, in their role as reporter of news, to appear neutral or balanced in their reporting, particularly on matters of public controversy –to avoid taking a position (or appearing to take a position) on a public issue.    

In seeking to avoid the appearance of bias, newspapers and broadcasters often present different positions without commenting on their merits (except in editorials and columns). The problem is that the positions reported may not have any factual grounding or may be based on factual claims that are contested.

If the media simply report the factual assertions of one side without ensuring that they are accurate, or if they report competing factual claims with no comment on the accuracy of the claims, then the audience will at worst be misled and at best be denied enough information to make a reasoned judgment. Ezra Levant appeared on at least three CBC national radio programs – The Sunday Edition, Cross-Country Check-Up, and the Current. Each program allowed him to repeat his false claims with little or no challenge and so gave them validation. When Levant asserts in an interview that the CHRC has a 100 percent conviction rate and is not challenged by the interviewer, the audience might reasonably assume that his claim is true.

When Levant made the 100% conviction rate claim on the CBC radio program Sunday Edition, the host Michael Enright said to Levant that he thought that “Maclean’s beat it this year.” To this Levant answered, “No they weren’t charged federally, they beat it in B.C. But no, the federal one, 100% conviction rate.”

This was a true but misleading response to Enright’s question. A complaint had been made to the CHRC against Steyn and Maclean’s, which the Commission investigated but decided not to refer to the Tribunal for adjudication. Anyone listening to Levant would have filled in the gap and assumed that there had been no federal complaint against Maclean’s. Later, in an interview on CTV’s Powerplay, Levant referred to a complaint against Catholic Insight as a CHRC ‘prosecution’, even though the complaint was dismissed after investigation and did not go to the Tribunal for adjudication.

The “100 percent conviction” claim has been made in the editorial pages of several newspapers –for example, a National Post editorial from June 18, 2009: “The CHRC, too, has a frighteningly undemocratic 100% conviction rate on hate speech cases.”

When the media treats factual claims the same way it treats opinions, and simply channels them to the audience, how is the audience to know whether the claims made are true? The audience has no other meaningful access to the facts.  Even when the audience hears competing versions of the facts, how are they to decide between them, if the media does not arbitrate or even comment on these factual “disputes”?  Because there is often no common factual ground, it is left to the members of the audience simply to choose their position, based on “gut instinct” or ideological predisposition. 

Not surprisingly, individuals tend to adopt the factual claims that fit with the views they currently hold and to discount or reject those that do not. If I am already wary of “big government” or resentful of “political correctness,” I will be more receptive to the claims of Levant and Steyn. On the other hand, I am more likely to discount their claims if I believe that government has a role in protecting minority groups from discrimination.  

The second factor, contributing to the media’s non-critical reporting of the false or misleading claims about the CHRC, is the increasing prominence of columnists who engage in advocacy rather than analysis, and are concerned less with factual accuracy and more with simply provoking a reaction in their readers. Most mainstream print publications, although seeking to be impartial in their news reporting, publish opinion columns. Most of these columns offer a careful, factually grounded analysis of current affairs, drawing on the knowledge and experience of the columnist. However, in recent years there has been a proliferation of columns that are designed to be provocative – to attract readers who strongly agree or disagree with the positions taken by the columnist.

The authors of these advocacy columns are prepared to address a remarkably wide range of issues about which they have little or no background knowledge. Their object is advocacy rather than accuracy, and so they make simple and dramatic claims, often with little factual support. Indeed, they often seem to show the same indifference to factual accuracy, as political spinners. Rex Murphy in his Globe and Mail columns criticizing the CHRC has taken his information straight from Ezra Levant’s blog. On one occasion, Murphy wrote a column (“Real rights and rights commissions” The Globe and Mail,  Nov. 14, 2008) about how outrageous it was that the Chief Commissioner of the CHRC would lay a wreath at the war memorial in Ottawa, when she obviously had no grasp of the freedoms for which Canadian soldiers had fought. Only two days earlier Levant had written about the very same thing, although in less grandiloquent terms. 

Murphy in several Globe and Mail columns has recycled many of the critics’ false or misleading claims about HRCs, apparently making no effort to confirm their accuracy. For example, in a column on Nov 14, 2008, he referred to the trivial “rights” recognized by HRCs “like the right not to wash one’s hands while working in a fast-food restaurant.” This is an entirely distorted account of a BC HRT’s decision that has been referred to by Levant in his blog and in radio interviews. (When the B.C. Tribunal decided the case of a long-time restaurant employee who developed severe dermatitis as a result of frequent hand washing, they affirmed the importance of hygiene and hand washing, but held that the restaurant ought at least to have considered whether there were other tasks the employee could perform that would not involve the handling of food and require hand washing with the same frequency.)

The third factor, which applies principally to the visual media, is the appeal of claims that are simple and dramatic, and of conflict, which is visually engaging or entertaining. (See Neil Postman: Amusing Ourselves to Death: Public Discourse in the Age of Show Business, Penguin 1986, p. 131). Television current affairs programming often focuses on extreme positions. Accusations of corruption, deceit, or patent injustice play much better on television than do more nuanced arguments or moderate or conciliatory positions. Issues are generally presented as if they have only two sides, each of which is simple, straightforward and diametrically opposed to the other. Even when both sides of an issue are represented, they don’t engage with each other—at least not in any way that might contribute to audience understanding, or to the discovery of common ground. The two sides generally make different factual assertions or assumptions. Because the competing positions are so far apart and rest on completely different versions of the facts, the audience cannot learn from each but must choose one over the other.

In the end, the debate about human rights commissions, like so much public debate, involves no real engagement between competing positions, and no real opportunity for the audience to judge whether or not the current law is good policy. The complexity of the issue is avoided or suppressed. The merits of the case, either for or against hate speech regulation by HRCs, is lost in a sea of exaggerations and fabrications. It is left to the audience, if it is paying attention, to make a choice—not based on reasoned judgment, but on their existing views or ideological predispositions.

Richard Moon is Professor of Law at the University of Windsor. His research focuses on freedom of expression and freedom of conscience and religion.