The late Fred Phelps was a man who earned for himself the reputation of being a jerk. Not your ordinary, run-of-the-mill, jerk, either, but a jerk on such a scale that the character which Denis Leary portrayed in the song “Asshole” from his 1993 album No Cure For Cancer had absolutely nothing on him. It is not just that the founder and “pastor” of the Westboro Baptist Church in Topeka, Kansas disavowed the conventional Christian wisdom that God hates the sin but loves the sinner and that we ought to do the same in favour of an extreme five-point Calvinism that proclaimed God’s literal hatred for certain people. It is also, and perhaps most importantly, the way he choose to publicize his message. It requires an astonishing level of low-life creepiness to intrude upon the grief of people who are mourning the loss of a loved one by picketing a funeral. Indeed, perhaps the kindest thing that can be said in Mr. Phelp’s favour, is that he never – at least to the best of my knowledge – took it a step further and attempted to prevent the funerals he picketed from taking place.
As we shall see in a moment, that cannot be said of certain other people. First, however, let us consider just how contrary to the wisdom of the ages this sort of thing actually is.
Of the ancient Greek poets, none was more inspiring and influential than Homer, the epic poet of the eighth century BC. The most important of his works was the Iliad the story of which is set in the last year of the Trojan War. The many different conflicts and intrigues that take place among gods and men over the course of the poem’s twenty four books are tied together by the poem’s theme, identified in its very first line: μῆνιν ἄειδε θεὰ Πηληϊάδεω Ἀχιλῆος “Sing goddess, of the wrath of Achilles, son of Peleus.” At the beginning of the poem, that wrath is directed against Agamemnon, king of Mycenae and the leader of the Greek forces. Achilles, in his anger withdraws his Myrmidons from the war. His mother Thetis secures from Zeus the promise that the tide of the war will go against the Greeks until Agamemnon gives Achilles the honour he deserves and he returns to the war. When the Trojans are on the verge of burning the Greek ships, Achilles’ closest friend Patroclus obtains his permission to lead the Myrmidon army back into the battle. Wearing Achilles’ own armour, Patroclus is mistaken for Achilles and, ignoring the latter’s instructions to fight only in defence of the ships, he drives the Trojans back to their city where he is killed by the crown prince of Troy, Hector. At this point Achilles’ wrath turns from Agamemnon to Hector, and he re-enters the war himself, lays waste to the Trojan forces, and eventually kills Hector. Then, however, Achilles takes his wrath too far. Rather than turn the body of Hector over to the Trojans for proper burial, he ties it to his chariot and drags it around the walls of Ilium. This is in violation of the laws of the gods but he continues to do this until his mother arrives from Olympus with a message from Zeus telling him in no uncertain terms to knock it off. So rebuked, Achilles turns the body over to Hector’s father, King Priam, when he, smuggled by Hermes into the Greek camp, pleads for it, and assures Priam that he will make the Greeks abide by an armistice that will allow Priam sufficient time to bury Hector with all the proper honours.
The idea that it is against divine law to refuse a proper burial even to an enemy recurs in the Antigone, one of three surviving tragedies by fifth century BC playwright Sophocles that deal with the curse that Oedipus brings upon himself and his city, Thebes, by unwittingly killing his father and marrying his mother. After Oedipus learned the truth, blinded himself, and went into exile one of his sons, Eteocles, drove the other, Polynices, into exile. The latter found refuge in Argos where he married the daughter of king Adrastus who then supported him in an expedition against Eteocles in Thebes. In the course of the battle, both brothers were killed. Creon, Oedipus’ uncle/brother-in-law was then made king of Thebes and he decreed that Eteocles was to be fully honoured, but Polynices was to be left to rot, imposing capital punishment upon anyone who defied this edict. This is where the Antigone begins for the title character, daughter of Oedipus, refuses to obey the edict and performs the burial rites for her brother. Although he is warned by the seer Tiresias, Creon persists in defying the law of the gods and orders Antigone to be buried alive. Divine judgement falls upon him in the loss of his own house, as his son Haemon who had been betrothed to Antigone kills himself in anger and grief, to be followed into suicide immediately thereafter by his mother Eurydice.
That one ought not to interfere with the proper burial even of those who were your enemies was evidently an idea that the Greeks felt rather strongly about. The Romans had a saying, de mortuus nil nisi bonum dicendum est – “about the dead, nothing except good, must be spoken” – which, while not entirely the same concept, nevertheless indicates a sort of consensus among the ancients, that the grievances we have against people in their lives ought to be buried with them in the grave and must not be allowed to interfere with the duty owed by the living to the dead.
There are some here in Canada today, I am sorry to say, who disagree with the wisdom of the ancients and have recently shown it in actions that make Fred Phelps look classy by comparison. It is not merely the ancient tradition dictating respect for the dead and mourning that they have disregarded, however, in their recent attempts to shut down a memorial service for an Ontario lawyer, but some of the most foundational principles of our system of justice. Their indecorous posthumous vendetta against this woman is based entirely upon who her clients were. One of the fundamental principles of our system of justice is that it is better for the guilty to escape punishment than for the innocent to be unjustly condemned. This too is a principle with ancient antecedents. Socrates argument against Polus in Plato’s Gorgias that it is better to suffer wrong than to commit it is one example, Abraham’s negotiations with God over the fate of the righteous in the condemned cities of Sodom and Gomorrah in the book of Genesis is another. Upon this foundation rest such other basic principles as the right of the accused to confront his accuser and to be considered innocent until proven guilty in a fair trial. Imagine what would happen to these principles if we were to allow the precedent to be established that defence advocates are to be treated as participants in the guilt of their clients.
If that were not bad enough in this case the lawyer’s clients were not people accused of crimes that are universally recognized as such – murder, robbery, rape and the like – but rather of thought crimes.
There is a backstory to all of this that goes back several decades. For a long time certain groups lobbied Parliament to have laws against “hate literature” passed. NB that hate literature does not mean literature that literally expresses hatred of the “I hate you, you lousy rotten sonuvabitch, I wish you were dead” type but rather literature that portrays racial and religious groups in a negative light. Unless, that is, the racial and religious groups are whites or Christians. In the 1960s, Lester Pearson appointed a committee to look into this and in 1971 Pierre Trudeau, who had been a member of that committee, added Section 318, the “hate propaganda” clause, to the Criminal Code. Those who wanted these laws were still unsatisfied, because those charged under this law were entitled to the full protection of the rights of a defendant and so Trudeau passed the Canadian Human Rights Act which prohibited discrimination in 1977 and this included Section 13 that defined the communication via telephone of anything “likely to” expose a member of a protected group to “hatred or contempt” as a discriminatory act. Later Jean Chretien would add Section 13 b) that extended this to all electronic communication to cover the internet as well. Since the Canadian Human Rights Act is considered civil rather than criminal law it was much easier to charge and convict people under this law than under Section 318.
For anyone acquainted with the history of the Soviet Union and other totalitarian regimes or with the body of literature by authors such as Arthur Koestler, George Orwell, and Aleksandr Solzhenitsyn that shone a light on the nature of such regimes the outcome of these laws will be chillingly familiar. A list of prohibited books was drawn up which were seized at customs and removed from libraries, public and academic. About a decade after these laws were passed widely publicized show trials of a handful of individuals accused of this new form of crimethink were held. The press tried these individuals in the court of a public opinion which they manufactured by making these individuals the subjects of a two-minute hate but remained largely mute about the much larger number of people who were being dragged before the Canadian Human Rights Tribunals under Section 13.
That would change, of course, in the late 2000s when two magazines with national circulation were charged under the provincial equivalents of the Canadian Human Rights Act. Hoist with its own petard, the media which had stood by and said nothing while Section 13 was used to ruin the lives of Canadians for daring to express forbidden thoughts, but now aware of the threat to its own freedom, began to report on Warman v. Lemire, the last Section 13 case to be heard by the Canadian Human Rights Tribunal. The light this shed on Section 13 and the shady behaviour of the Canadian Human Rights Commission generated enough of a backlash that Conservative MP Brian Storseth was able to garner sufficient support in Parliament for a bill that brought about the repeal of Section 13. Nevertheless, there is much more work that needs to be done to completely rollback this Soviet-style thought control and recover the atmosphere of freedom that Canadians used to know and which our Common Law birthright as subjects of the Crown.
In this fight for traditional Canadian freedoms against this kind of soft totalitarianism those who deserve the most honour are those who stood up against it from the beginning. It is one thing to speak out when someone tries to censor MacLean’s magazine. The true test of commitment to freedom of conscience, thought, and speech is when you dare to speak out when they go after an Ernst Zündel, James Keegstra, or John Ross Taylor. This is a point that Pastor Martin Niemöller would certainly have understood. Foremost among those who demonstrated such commitment were BC lawyer Doug Christie and his long-time associate Barbara Kulaszka of the Law Society of Upper Canada. Although Christie, who passed away four years ago, was the better known of the two, Kulaszka had been a key figure in the fight for free speech from the beginning, when she worked alongside Christie in the Zündel case back in the 1980s. She passed away from cancer this year on the fifteenth of June.
The Canadian Association for Free Expression rented space in the Richview Public Library in Toronto for the purpose of holding a memorial service for Kulaszka last Wednesday. When word of this got out several individuals and organizations placed pressure on the Toronto Public Library system to cancel the event and a number of newspapers and other media outlets expressed manufactured outrage when the library, to its credit, refused to do this. Keep in mind that this was a memorial service – an occasion for those who had known Kulaszka, had worked with her, and whom she had defended in court, to remember her and pay her public tribute. It was not, despite the dishonest way in which it has been reported in many media sources, something akin to a Klan rally.
Overlooked and ignored by Kulaszka’s detractors is the fact that while many of her clients are said to have expressed admiration for Nazism and the Third Reich and questioned the accuracy of the crimes and atrocities attributed to it – I use the words “said to” because hate speech laws by their very nature are intended to prevent us from having access to what the thought criminal has actually said and to force us to rely upon the word of hate speech experts, themselves extremely hostile to the thought criminals, to tell us what they think and say - in fighting on their behalf against those who sought to penalize them for their ideas she was fighting, not for the ideology of National Socialism, but for the principles of freedom and justice that belong to the tradition of Great Britain and the Commonwealth – the countries that went to war to defeat Nazism. It is this desire to silence people with laws that penalize them for their thoughts and words that lies behind the hate laws that Kulaszka fought against which is akin to the spirit of the totalitarianism that was Nazism, not her brave and dedicated efforts to fight this tyranny.
So who are these people who are so utterly lacking in class as to begrudge Kulaszka her memorial?
Well, there are the politicians of course. John Tory, the present mayor of Hogtown, and Toronto City Councillors James Pasternak and John Campbell all gave quotes to the media expressing their dismay over the library’s decision to allow the memorial. Politicians being what they are it is reasonable to suspect that if the media had taken the opposite approach to the story they would have been quoted as supporting the library’s decision. So take their words for the nothing they are worth.
Then there are the usual suspects – the professional anti-bigots. Richard Warman, Bernie Farber, and Warren Kinsella were all on hand to vent their impotent rage at the library that actually dared to defy their edict as to who should or should not be allowed to rent public facilities for a memorial service. It is easy to see why these three are so upset. Warman, whom the media describe as a “human rights lawyer”, is a former investigator for the Canadian Human Rights Commission who went on to become the complainant in the vast majority of Section 13 cases. Farber was the CEO of the Canadian Jewish Congress until it was swallowed up by the Centre for Israel and Jewish Affairs about six years ago. The CJC was the chief organization that lobbied for hate literature laws before the Liberals acquiesced and while this was before Farber’s time as CEO he was himself an avid supporter of hate laws throughout his career. Kinsella, lawyer, Liberal Party strategist, and political commentator, has also been an outspoken advocate of hate laws over the years. It is people like this, who have devoted their lives to the cause of fighting views that they perceive to be bigotry, who, blinded by their zeal, seem incapable of distinguishing between lawyers and their clients or understanding that those who hold the views they object to do not thereby forfeit their rights.
Smug, soulless, and absolutely convinced of their own righteousness, they see no need for showing the basic human decency of allowing their opponents to mourn their dead in peace, and so they have been carrying on with the lack of class we have come to associate with Westboro Baptist Church. Is it that surprising, therefore, to learn that Fred Phelps in his first career, before starting Westboro Baptist Church, was a lawyer who specialized in racial discrimination cases?
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