No violence no hate speech by John S. Quarterman CC BY 2.0 https://flic.kr/p/aDkJbi

No violence no hate speech by John S. Quarterman CC BY 2.0 https://flic.kr/p/aDkJbi

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Court Issues Injunction Against University of Toronto Encampment on Trespass Grounds, Finds “No Doubt That Some of the Speech on the Exterior of the Encampment Rises to the Level of Hate Speech”

Ontario Superior Court of Justice Markus Koehnen issued his much anticipated ruling involving the encampment at the University of Toronto late yesterday, granting the University its requested order that can be used to remove the encampment. Under the order, protesters have until 6:00 pm today to clear the encampment. If they fail to do so, the court ruled that the University can levy the full range of sanctions, including “physical enforcement of the order, prosecution for trespass, liability for contempt of court and the full range of disciplinary sanctions at the University.” The basis of the order lies in trespass with the court concluding that “there is ample judicial authority that says protesters have no right to set up camp on or otherwise occupy property that does not belong to them, no matter how much more effective their protest would be if they were able to do so.”

Trespass combined with evidence of irreparable harm if the order was not granted provided the legal foundation for the decision. The University of Toronto had also raised violence and antisemitic hate speech as grounds for the order, but the court did not find sufficient evidence to conclude that the encampment was violent or antisemitic. The court’s conclusion on antisemitism has been seized upon encampment supporters, but the reality is that it did find hate speech at the exterior of the encampment, which from the perspective of Jewish students and faculty surely requires University action (it is not clear if this is signage on the perimeter of the encampment or threats uttered outside of it). In fact, the court finds that “that there have been incidents of hate speech and physical harassment of people, predominantly but not exclusively directed at people wearing kippahs or some other indicator of Jewish identity in the general vicinity of the encampment” and that “the possibility of further escalation based on past physical altercations and past use of actual hate speech outside the encampment amounts to some level irreparable harm but not significantly so.” This is hardly a full exoneration of what has been taking place on campus.

Further, the court’s analysis of terms such as “river to the sea” and “glory to the martyrs” acknowledges that “these expressions are perceived as hurtful and threatening to many Jews”, but proceeds to find alternative explanations for the intent of the speech, leading to the conclusion that “I was not taken to any evidence to suggest that any of the named respondents or encampment occupants were using these slogans or symbols with any intention of violence, antisemitism or hatred.” However, University policies say that what matters is not what the speaker or initiator intended, but rather the impact on the affected individual. Once again, in the case of Jewish students, they are told that how they perceive the speech or campus actions is irrelevant, effectively meaning Jews do not get to decide for themselves what is antisemitic and giving licence to others to cause harms on the basis of their professed intent. This is simply not how other groups are treated.

The court may improbably stop short of concluding there is antisemitism, but leaves no doubt there is hate speech targeting Jews on the exterior of the encampment:

There can be no doubt that some of the speech on the exterior of the encampment rises to the level of hate speech. This has included comments like: “kike”, “baby killer”, “get away and go be with the Jews.”, “We need another holocost” [sic], “Jews in the sea Palestine will be free”, “Jews belong in the sea Palestine will be free”, “Death To the Jews, Hamas for Prime Minister”, “You dirty fucking Jew. Go back to Europe”, “Jews should go back to Europe”, “fuck the Jews”, “I hate every fucking one of you people” (to a group of people carrying Israeli flags), and “Itbach El Yahod” ( “slaughter the Jews”).

The key distinguishing factor is that the judge says the evidence did not link the hate speech directly to an encampment protester. For the purposes of Jewish students, Jewish faculty, and the enforcement of University codes, hate speech on campus – whether from within the encampment or on its exterior – raises the same threat for those who are the targets. We would never tolerate on-campus hate speech toward any other group calling for their death or slaughter and we should not tolerate it when targeted toward the Jewish community.

Indeed, it seems to me that whether the hate speech emanates from the encampment or on its exterior is largely a distinction without difference. For Jewish students or faculty targeted by the hate, the threat is the same. For the University, its responsibility to ensure there is a safe, hate-free environment for the entire community applies in the same manner given that this is all taking place on university grounds. In fact, given the manner in which the encampment operated by vetting entrants and refusing entry to some individuals, if there was hate speech (and the court concludes there was) it would be expected to occur on the exterior of the encampment since many visible Jewish students and faculty would be prevented from entering the encampment. It strains credulity to argue that the hate speech occurring on on the exterior of the encampment is simply a coincidence with no correlation to the encampment, when there was speech from within the encampment that the court itself concludes are perceived by Jews as threatening.

Regardless, the finding of hate speech on campus grounds on the exterior of the encampments should be reason enough for the University to act to ensure that all community members are safe. The court has provided a roadmap for other universities – including my own – to ensure that all university campuses in Canada do a better job of balancing freedom of expression with the right of all community members to a safe, non-discriminatory environment. If there is similar evidence, trespass provides the legal foundation and combatting hate speech provides the moral grounds.

13 Comments

  1. Thanks Mike. The words adverse effect discrimination do not appear to apply to Jews. Last week a friend’s daughter went to a Provincial government office to obtain her learner’s permit with her Canadian and Israeli passports. The employee refused to accept the Israeli passport as ID first because of “the situation.” Then because according to him the ID must be Canadian which is untrue. The ease and speed with which people have fallen into anti-semitism is truly breathtaking.

  2. JackieQuick says:

    SSSS

  3. “(it is not clear if this is signage on the perimeter of the encampment or threats uttered outside of it)”

    “Indeed, it seems to me that whether the hate speech emanates from the encampment or on its exterior is largely a distinction without difference.”

    Actually, it matters a lot where the hate speech was coming from.

    It has been a long well-established tactic by the state to discredit protest movements by inserting provocateurs. See the footage of the ‘Black Bloc anarchists” wearing police boots in the G20 protests in Toronto that quickly had their police friends jump to their rescue as soon as the bandana-wearing “anarchists” were rumbled as cops.

    This line of logic that it doesn’t matter whether the actual protestors did what they are being accused of has huge implications for the right of Canadians to peacefully assemble and hands the State and the police a carte blanche.

    • With respect to the signage, after a fashion I agree, however the fact that the occupants of the encampment allowed the signage to remain for so long implies that they at least endorsed what it says.

      As far as the Black Bloc comment, most police forces, and in some cases military, wear a civilian pattern “tactical” boot. So while it is possible that the person was a police officer disguised as a protester, simply using the boots that they were wearing as evidence that the person was a police officer is, to me, unconvincing. Even if they were actual police issued boots, items such as those can be purchased by the general public used at surplus stores or new online.

  4. Was it signage on the encampment? Geist seems unclear in the quote above whether it was signage or reports of people uttering these comments outside the encampment. The antisemitic comments listed in the court ruling are clearly hate speech but these comments do not appear in photos of signs on the exterior of the encampment in anything I can see online. If there are photos, links would be appreciated.

    Maybe you haven’t seen the video in question at the G20 protests. I think it was pretty obvious these were cops.

    https://www.youtube.com/watch?v=St1-WTc1kow

    But that is just one recent case. Using provocateurs to discredit protests is a very well established, well-documented tactic not just in Canada but around the world. There is lots of scholarship on the subject and making protestors responsible for what happens in the vicinity of the encampment, as is advocated in this post, is a massive gift to those using the provocateur tactic.

    Not that that is what happened at U of T, but it should be a consideration for why the court did not charge the protestors for antisemitism outside the encampment, like Geist is recommending. A lot of us come to this blog because Geist has been a well-informed balanced critic of public policy and it’s intended and unintended consequences when it comes to digital rights. That nuance, balance and legal insight has been seriously lacking on this topic and seems to be making up more and more of the content here.

    • The video linked to is supposed to have taken place not at the G20 in Toronto (although a similar thing may have occurred there). The video indicates it was taken at a protest at the Chateau Montebello (between Ottawa and Montreal for the readers not familiar with the location) during a meeting between Prime Minister Stephen Harper, U.S. President George W. Bush and Mexican President Felipe Calderon (according to a CBC article on it).

      Did they infiltrate, sure. Were they there as provocateurs or to monitor for non-peaceful protestors? Depends on who you ask. What one of the protest organizers says is one thing, what the SQ said is something else (in the CBC article). The guys were bound when taken away after being tossed to the ground face first by the police. And Coles only called for the police officers to unmask (there were masked protesters shown in the video). I saw no footage of the police actually attempting to incite violence, although one of them was carrying a rock. Where it came from, no idea since it was there at the beginning of the video. It also shows Cole grabbing at the mask of the person he was accusing of being a cop, but not at others wearing a mask.

      At the same time, the use of protests by groups other than the police is also a known tactic. For instance, during the “Occupy Ottawa” protests a number of folks used the cover of the protest to damage and in some cases rob local businesses along the march route (the anonymity of the mob).

      Now, should the tentifada protestors be charged for something on the outside of the encampment? Hard call. If the sign was there for some days then an argument could be made that the sign reflects their position. Why? Because leaving the sign there indicates that they support the message on the sign. So while they may not have placed it, in effect they are saying that they agree. Had they been taking down such signs then they could argue that those signs do not reflect the position of the people in the camp. It comes down to the question of how long some of those signs were there, and did they have a reasonable opportunity to remove it if they so chose.

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  6. My mistake, it is Montebello. I remember it surfaced during the G20 protests but I had misremembered the protest it was from.

    I don’t think it is such a mystery where the rock came from though. Honestly, I would love to hear some theories on that one since the only way I have ever seen a rock end up in someone’s hand is when they picked it up. How else could it have gotten there?

    There is a ton of literature on the use of agent provocateurs infiltrating protest movements but here are two brief backgrounders:

    https://journals.sagepub.com/doi/full/10.1177/09240519211033429

    https://www.thestar.com/news/insight/a-brief-history-of-agents-provocateurs/article_6a536817-683f-5407-b721-c040e5740d5a.html

    If acts not even committed by those in the protest are now enough to condemn protestors, then I guess the infiltration part of being a provocateur is no longer even necessary. Good stuff for those who are not a fan of the right to assemble.

    “If the sign was there for some days then an argument could be made that the sign reflects their position. ”

    Except, where is there any mention of signage at all? I have read the ruling, which is linked in this blog post and signage is mentioned exactly zero times and if you read it, it is obvious that the hate speech refers to comments that were made by people outside of the encampment. The only mention of “signage” is in Geist’s post where he insinuates that it’s “unclear” if the hate speech refers to signage but again if you read the ruling, I think it is very obvious the comments were verbal.

    For example one of the descriptions of hate speech is: ““I hate every
    fucking one of you people” (to a group of people carrying Israeli flags),” [80]

    How can signage be directed at a group of people carrying flags?

    [81] “It is important to note, however, that none of the named respondents and none of the encampment occupants have been associated with any of these statements. ”

    [82] “The respondents correctly note that when issues of hate speech have arisen, they have been addressed immediately, as was the case with offensive chalk messages found near the encampment which were removed in short order.”

    If chalk messages were removed immediately, then your narrative about signs being left up for days doesn’t really check out, does it?

    https://litigate.com/assets/uploads/Reasons%20for%20Judgement%20%E2%80%93%20Interlocutory%20Injunction%20%E2%80%93%20July%202,%202024.pdf

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