In this time of ascendant Islamophobia permitted to rampage largely unchecked — a time when Muslim bans are upheld by the US Supreme Court and hijab bans are metastasizing, from Austria to Quebec — the success of Toronto restaurateur Mohamad Fakih’s lawsuit against notorious Islamophobe Kevin Johnston has been seized on as a rare shard of hope: a promise that the state institutions that have repeatedly failed to protect us may yet be the source of our salvation.

Last month, an Ontario court ordered Johnston to pay Fakih CAD$2.5 million — the largest cyber libel damages award in Canadian history — for having defamed him and his restaurant patrons as “terrorists,” “radical Muslims,” and “jihadists” who are “up to something nefarious.”

Johnston’s crusade against the manufactured threat of Muslim terrorism has long been a source of terror for the Muslim communities he persistently hounds. He has accused Rohingya refugees fleeing genocide of having “raped and killed their way into the peaceful Buddhist nation”; offered a bounty of CAD$1000 for video recordings of Muslim schoolkids performing their Friday prayers; and kept up a constant smear campaign demonizing Muslims as “terrorist scumbags,” “Nazis,” “non-civilized garbage,” and “rapists” on his many online platforms. Despite this — or, more likely, because of this — Johnston finished second (with 13.5 percent of the vote) in the 2018 mayoral election in the Toronto suburb of Mississauga.

The racism of the state

The jubilation over Johnston’s takedown, however, has troublingly veered into valorization of a legal system that has legitimized many of the same anti-Muslim narratives that Johnston deploys. For example, Canadian courts have upheld legislation that defines “terrorism” by the religious motive of the perpetrator, and 98 percent of terrorism prosecutions in Canada have been of “Islamists,” even though White-supremacist and right-wing ideologues have been responsible for 90 percent of deaths from mass public violence since 9/11.

If tarring a Muslim as a terrorist “is about as serious and damaging an allegation as can be made in these times,” as the judge in Fakih’s case held, this shows the power of state national security discourses that have worked to establish the “Muslim terrorist” as an unparalleled threat — one that can supposedly only be contained by ballooning security budgets and extrajudicial state practices of detention, torture, and drone-killing.

Instead of being celebrated as a simple triumph over Islamophobia, Fakih’s case should alert us to the tensions and contradictions of an anti-Islamophobia that attempts to combat racism by appealing to state institutions that are deeply invested in the perpetuation of racism — indeed, that have been built on the racist erasure of colonized Indigenous sovereignties. The case should compel us to consider the limitations of an anti-Islamophobia that fixates on the wave-crests of vitriolic hatred that break the surface, while leaving untouched the ocean of state-organized oppression that lies beneath.

In response to the judgment against Johnston, for instance, a board member of the Toronto-based anti-racism organization Urban Alliance on Race Relations sent out an email encouraging people to report online comments calling Muslims “terrorists” as hate speech to the police. Never mind that in many jurisdictions in Canada, the police units responsible for addressing complaints of “hate” are also tasked with investigating “violent extremism,” and so are trained in the same Islamophobic War on Terror counter-extremism paradigm that animates the haters they purport to quell.

A flawed anti-Islamophobia

In an op-ed in the Toronto Star, Fakih himself declared the court’s decision “a victory for all Canadians who value tolerance and inclusivity” that shows “we can fight back against those who hate.” This at a time when Ontario Premier Doug Ford’s policies are placing access to the courts ever further out of reach, particularly for the communities most marginalized and immiserated by racism, colonialism, and capitalism. (These policies include the evisceration of legal aid, reversal of increases to the minimum wage, and proposed legislation preventing people from suing the government.)

Ford’s interventions are compounding what was already a crisis across Canada: in some jurisdictions more than 70 percent of litigants in civil cases are unrepresented, mostly because they cannot afford to hire a lawyer, while federal and provincial governments spend 23 times more on policing and prisons than they do on legal aid.

Efforts to counter Islamophobia that omit class oppression, anti-Black racism and anti-Indigenous colonialism from the analysis perpetuate an anti-Islamophobia that centers on the most privileged Muslims — and assumes, as in the flawed economic theory, that the benefits will “trickle down.”

This is an anti-Islamophobia that celebrates court decisions in favor of prominent entrepreneurs like Fakih, but fails to mobilize against the forces that prevent those bearing the heaviest burden of systemic racism from accessing the courts at all;

That rallies around “respectable” businesspeople or professors irrationally mistaken for terrorists, but wants nothing to do with the poor, mentally vulnerable, and refugee Muslims manufactured by governments into terrorist bogeymen to rationalize the excesses of the national security state;

That focuses on “rebranding” Muslims according to capitalist standards of worth, as successful professionals and economic assets, instead of questioning the logics that have branded so many as worthless in the first place;

That invests its hopes in the inclusion of Muslims in police forces, national security agencies and the military, while forgetting about those on the other side of their surveillance and guns.

The racialized injustice of the system

It is revealing to contrast the outcome in Fakih’s case with ones in which the offenders have not been individual racists like Johnston, but state institutions like the police.

In Ontario, the highest amount ever awarded by a court to a victim of police racial profiling and brutality is $80,000. The complainant in that case was a Black Muslim man, Mutaz Elmardy, who was on his way home from prayers when he was wrongfully stopped by police on the basis of racist assumptions about Black criminality, punched twice in the face, and left handcuffed lying with his bare hands on the ice-covered ground for more than 20 minutes — yet received less than one-thirtieth of the compensation that Fakih did.

The fact that Elmardy’s lawsuit succeeded at all was a rarity, but the type of abuses that gave rise to it are not. According to a report released last year by the Ontario Human Rights Commission, for example:

Between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a fatal shooting by the Toronto Police Service. Despite making up only 8.8 percent of Toronto’s population, data obtained by the Ontario Human Rights Commission … shows that Black people were over-represented in use of force cases (28.8 percent), shootings (36 percent), deadly encounters (61.5 percent) and fatal shootings (70 percent). Black men make up 4.1 percent of Toronto’s population, yet were complainants in a quarter of cases alleging sexual assault by [Toronto police] officers.

The profiling, harassment, and brutalization of Black and Indigenous communities by the police is endemic in Canada — but the risk of reprisals and of having to pay the legal costs of the state in the event of a loss make suing the police too hazardous an undertaking for many to bear.

A central reason for the gaping difference in damages awarded to Fakih as compared to Elmardy was the disparity in their economic circumstances. Fakih lost contracts worth over CAD$2 million for his flourishing restaurant business due to Johnston’s defamation campaign, while Elmardy was characterized by the trial judge as “unemployed at the time [of the police assault] so he did not miss any work.”

In the process of standing up against racist stereotyping, the courts doubled down on economic inequality — itself a deeply racialized form of injustice, manifest in the fact that non-White people in Canada are three times more likely to live in poverty and 26 percent more likely to be unemployed.

The failure to address the underlying systemic racism in these cases is a feature of the operating system, not a bug. The primary purpose of tort law (the law of compensation for wrongs) is to return an injured party to the position they would have been in if the injury hadn’t occurred — that is, to restore the status quo, not transform it; to give people back what they have lost, as measured by capitalist metrics of value, not reorganize the conditions that give some so much less to lose than others.

The pervasive practice of calculating damages according to race– and gender-based estimates of lost future income and life expectancy, for example, consistently deflates the amount of compensation awarded to women, Indigenous, Black, and other racialized plaintiffs — in some cases, depending on the specifics of the situation, by more than 50 percent.

This not only perpetuates the devaluation of non-White, non-male lives in the present. It also creates a perverse incentive for governments and corporations to continue concentrating potentially harmful practices in the most poor and marginalized communities, because courts have effectively deemed their futures cheaper to destroy.

Justice from below

Representations of the legal system as a bulwark against racism obscure how the law itself reproduces intertwined hierarchies of race and class. “The justice system is aggregating, rather than mitigating, inequality,” the Canadian Bar Association concluded in its 2013 study on access to justice. “The system and its actions actually perpetuate or aggravate the problems that got people involved in the system initially.”

In this economy of extreme justice scarcity, pro bono legal services stand in as “a sort of legal food bank,” as the eminent human rights and equality lawyer Mary Eberts observes. They “alleviate hunger for some on a daily or monthly basis, but absorb the energy of those who provide the services, so that they have little energy left for changing the underlying conditions that create the hunger.”

If pro bono lawyers are like food banks, legal decisions such as the one in Fakih’s case are like celebrity donations to charity: highly visible spectacles of virtue that fail to challenge the underpinning structures of inequality that occasion them. Such spectacles stabilize racial and capitalist systems of oppression by mitigating some of their surplus cruelty, sustaining the illusory hope that they are capable of providing solutions to the problems they are responsible for creating.

Hope may be a lifeline, but it can also be a leash — tethering our aspirations to pathological and exploitative institutions. Liberation, however, does not lie in having our humanity validated by colonial state institutions that dispense such validation like crumbs to those at the top of the pyramid. Justice does not trickle down; it swells up from below.