Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 7 17 tent issue. All other freedoms depend on freedom of expression. In a free society, the government does not pick and choose what citizens are allowed to say. In a free society, freedom of expression must be defended vigorously and without qualification. Law- yers have a duty to be in the forefront of that defence. But can it be that the right of free expression permits deliberate, dishon- est and crude attempts to insult, demean and provoke violence? Do lawyers have an ethical obligation to defend even these despicable and dangerous expressions of opinion? Think of the intellectual and emotional price that must have been paid by David Goldberger, the Jewish lawyer who repre- sented the National Socialist Party in the Skokie case. The New York Times reported that at a 1978 ACLU panel about the case, a panel in which Goldberger participated, in a room overflowing with hostility, "a woman in a flowered dress rose at the back of the room to ask in a trembling voice: 'Would you defend the Nazis if they wanted to march in your neighborhood?' For a moment Mr. Goldberger remained silent. The only sound in the room was the rustling of paper and the clicking of camera shutters. Then the young lawyer replied gravely: 'Lady, defending them is like hav- ing them march in my neighborhood.'" Separately, Goldberger told The New York Times: "I don't think I'll ever look back on it without remembering the pain caused. The hardest thing was being at odds with people for whom you had strong feelings of empathy." Canada has faced the same dilemma, although not as acutely. We have the equiv- alent of the U.S. First Amendment in our country, s. 2 of the 1982 Charter of Rights and Freedoms, which bestows on every Canadian "the following fundamental free- doms: (a) freedom of conscience and reli- gion; (b) freedom of thought, belief, opin- ion and expression, including freedom of the press and other media of communica- tion; (c) freedom of peaceful assembly; and (d) freedom of association." We have the equivalent of the ACLU, the Canadian Civil Liberties Association. As Marian Botsford Fraser describes in her 2014 book Acting for Freedom, the CCLA has generally fought against the criminalization of hate speech by the court and its censorship by human rights tribunals. (Botsford Fraser also notes that most hate propaganda in Canada comes from white supremacist and neo- Nazi organizations.) The late Alan Borovoy, general counsel to the CCLA for more than 40 years, famously defended Holocaust denier Ernst Zundel on the grounds of his right of free expression. Borovoy wrote in his memoirs: "The very repugnance of Ernst Zundel and his message effectively guaranteed that any CCLA effort to oppose legal censorship in this case would ignite a firestorm of controversy. And that of course is exactly what happened." Do lawyers have an ethical obligation to defend the expression of opinions they (and other right-thinking people) despise? The answer is an unqualified yes. Lawyers such as David Goldberg and Alan Borovoy led the way. We honour them for doing so. Philip Slayton's latest book, How To Be Good: The Struggle Between Law and Ethics, was published in October. Untitled-3 1 2017-10-31 8:01 AM

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