Limits on Free Speech

Below is the talk I gave at UBC Feb 24 on the limits of free speech.

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Free Speech Lecture

Welcome and thank you for coming out, this discussion is about the limits of Free Speech and the first limit is I get to speak and no one else does. (dramatic pause) No, that was a joke. I hope to start things off by giving context to our discussion then open the floor up to for questions and comments.

Let’s start by asking what is free speech and why is there such a reverence for it. On the surface free speech is the ability of one to transmit their ideas to the public. Free speech does not, in a modern ‘western’ context, refer to private speech between individuals. However what qualifies as ‘ideas’ can be everything from political ideology, commercial advertisements, comedy…etc. It is in the transmission of ideas, and often the more controversial questioning of ideas, that lie at the heart at what we see as the value of free speech. John Stuart Mill said “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race [for] If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”[1]. We live in a culture of constant change, where stagnation is seen as detrimental to progress and only through the improvement of thought that society can evolve. Radio Free Thinker, as a skeptic show, is predicated on the idea that dogma should be challenged everywhere and that only through this free exchange of ideas that a healthy society can exist.

That said; it is also dogma (hmmm…) that free speech is the first among rights and should be complete and absolute. Therefore we shall focus on the need to limit speech, where those limits might be and how such limits might be enforced while preserving the spirit of and medicinal nature of free speech.

In the Canadian Charter of Right and Freedoms, we find section 2b which states that a fundamental freedom is that of thought, belief, opinion and expression. However, section 1 states that such rights have “reasonable limits” and can be limited when “demonstrably justified” to protect a “free and democratic society”. This arrangement or priorities shows a fundamental difference between Canada and the USA, in the US constitution (if not in practice) the individual is supreme and as such the only function of government is to protect the individual’s liberty. Canada, by contrast, has always been a more ‘communal’ nation and this “one for all and all for one” Victorian spirit can be seen in our founding anthem “Peace, order and good governance”. The legal opinion in Canada is that only through a healthy society can an individual prosper; turning the US idea on its head.

No, this is not a discussion about the merits of communalism vs. individualism, nor about the historical developments of nation states. We are concerned with free speech here and now; in the context of what is. There are limitations on free speech and these are manifest in three areas – legal, economic and social. In Canada, freedom of expression can be limited provided it is justifiable, that said limitation of proportional and ‘rationally connected to their aims’. For those who have taken any Canadian law, you will know this as the “Oaks test” after the case of the same name.

What is “Justifiable”? The principle here is that, given a specific manifestation of speech, the harm done to a ‘free and democratic society’ would be greater if the freedom were allowed unlimited than if it were limited. A classic example of this is violent pornography. The courts acknowledge that pornography is a protected form of expression however it also upholds legislation the limits violent porn because, in the opinion of the justices, there is a ‘reasonable apprehension of harm’.

What is ‘rationally connected to their aims’? This simply means that if I wanted to prevent the sale of violent porn, any limitation of freedom must be connected to that aim. I could not revoke the drivers licence of those who sell violent porn – it may be punitive but has no rational connection to the aim of ‘preventing the sale of violent porn’.

What is proportional? This means that any freedom must be limited as minimally as possible to achieve its state aims. So a ban on the sale of all porn, so as to prevent the sale of violent porn, is a larger restriction of freedom than is needed to prevent the stated aim when a simple ban on violent porn would be sufficient.

Now this limitation is important when it comes to Canada’s hate speech laws. Canada is a multicultural nation; as such ‘identity’ groups are a fundamental aspect of our cultural landscape. Even those, notably libertarians and Marxists, who do not believe in identity groups, are forced to acknowledge that both victims and victimisers believe in these groups and are willing to use them to perpetrate hatred and violence. Now, in the case of holocaust denial, overt racism or homophobic violence, it is a general consensus that these forms of speech should be limited.

However, there are issues with this; such as at what point does my discussion of genetic distinctions between races cross over into racism? There are other issues, where do we draw the line about what is hate speech? Does Leviticus constitute hate speech? Do comments about the Israeli occupation of Palestine constitute anti-Semitism? The courts have given four exceptions or guides to distinguish ‘hate’ from non-hate speech even when such comments might be construed as hate. These defences are ‘it’s true’, ‘good faith opinion on a religious matter’, ‘in the public interest’ and ‘good faith attempts to point out hate speech’. So Leviticus is off the hook because we have a, in my opinion a destructive, special place for religion…comments on Israel MAY be okay IF true…

Okay, so that’s the law. There are two other ways that our freedom of speech is limited. Economically; this means that someone like Jim Shaw (who own Shaw Cable and just purchase CanWest/Global) who has both money and access can have more speech than I have. However, this leads into the difference between positive and negative rights. Legally, and ideologically, our society tend to side with negative rights over positive rights. This means a right is simply the absence of hindrance…i.e. no one is preventing me from running an ad on CBC. Positive rights means the presence of opportunity…i.e. I am given free time on CBC to speak. For those who are aware of the resent Supreme Court decision in the US will know this a huge topic south of boarder (and maybe one that should be bigger here as well).

The other limitation is that preached by people like Foucault. This is the ability for society, or ourselves, to censor what is obsessively legal speech. A great example of this was during the Olympics. There was reported that the head of RCMP security for the Olympics said that there would be “free speech” zones, and then the VPD said people could demonstrate anywhere but there would be designated areas for “safe”[2] protesting. Other talk about prosecution for ‘anti-Olympic’ posters and unprecedented enhanced security in the GVRD lead to a form of social self-censorship; where a great number of people just did not want to chance a run-in with the authorities. As a radio personality, I acknowledge that there have been a number of times I have thought twice about saying a thing for fear of legal or social outrage that may hinder Radio Free Thinker or cause personal suffering.

This social censorship also related to our earlier discussion of positive rights. Currently there is a legal debate going on about the loss of ‘club status’ of an anti-abortion group at the University of Victoria, of another club at the University of Western Ontario that has been ‘decertified’ for its apparent pro-Palestinian or anti-Semitic stance, depending on who you are speaking to. The UVic case is not so much  a question of free speech, for the club is allowed to organize if it wish, but a question of equality because is being treated differently than other ‘groups’ by being denied club status.

The heart of this case shines a light also on where or how we define hate speech. Opponents to the club point out that its (or similar groups) posters can be graphically obscene and the fundamental stance of the group is to imply the women who have or even advocate abortion are “bad” people who should be shunned. Pro-choice groups point out that anti-abortionist groups have violently harassed and harmed those who advocate, seek and/or provide abortions. The anti-abortion club claims its posters are tasteful; that it has not directly been involved in harassment and that it merely represents a difference of opinion on an issue that they should have much freedom to express as those who are pro-choice.

One last thought before we open the floor. Do universities, and by extension its students and faculty, have a great ‘right’ to free speech than those ‘off campus’? Do universities have a special and protected role in society to be a ‘bastion’ of speech irrespective of its content, impact or perspective provided it is done to forward academic education/research/growth?

ON that note…I will open the floor to thoughts, questions and comments….


[1] p. 24, Mill, J.S., Three Essays: On Liberty; Representative Government; The Subjection of Women. Oxford University Press, 1975, ISBN 0-19-283013-9

[2] Staff Sgt. Mike Cote, “Olympic protest zones don’t exist VPD says” (http://www.straight.com/article-281369/vancouver/olympic-protest-zones-dont-exist-vpd-says)

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