Freedom of Speech, Current Laws and a Question about the Internet
by Collin Wynter, length of audio= 13.21
Freedom of Speech; Freedom of Expression, is an inalienable right in a liberal democracy. This cornerstone of ‘western’ societies has been most self evident in Australia, Canada, New Zealand, the United Kingdom and the United States.
Focusing on Canada, with a brief nod to the United States, we will examine the current legislation of the right to freely express oneself in our current social climate. You may note the similarity and yet slight differences between United States and Canada, in regards to their provisional statements about the right to freedom of speech. In the U.S. Constitution, it specifically refers to “freedom of speech”, while in the Canadian Charter, it is “freedom of thought, belief, opinion and expression.”
Next, a brief interlude to demonstrate the four aspects to free speech with be provided.
Then, we will look at forms of speech or expression that are not protected by the law, such as harassment and incitement to violence. Freedom of speech has never meant being able to say whatever you want. It is meant to protect a speakers right to freely speak and express oneself. If a speaker abuses their rights and thus violates a law regarding coercion or theft, for example, they should be held to account.
That is followed by a look at incitement to hatred and genocide.
This essay will finish by touching on the proposed new laws to regulate the internet.
A comparison of the United States and Canadian provisions regarding “freedom of speech/expression.”
In the Constitutionof the United States, the First Amendment States:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [emphasis added]
In Canada, Section 2(b) of the Charter of Rights and Freedoms entitled: Freedom of expression, provides:
2. Everyone has the following fundamental freedoms:
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [emphasis added]
The purpose of such a provision is to ensure:
“The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression.”
As is clearly noted, the “attainment of truth” is predicated on freedom of expression. And although the search for truth is a noble endeavour, even more vital to society is the ability to critique the government and bureaucracy of Canada:
“The Supreme Court of Canada has maintained that the connection between freedom of expression and the political process is “perhaps the linchpin” of section 2(b) protection”
Removing the capacity for an individual or the press to critique the government, in words and expressions, is an attack on the democratic process.
A three part analysis is used by the Supreme Court of Canada to determine whether an act is to be considered protected under Section 2(b):
- Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?;
- Does the method or location of this expression remove that protection?; and
- If the expression is protected by section 2(b), does the government action in question infringe that protection, either in purpose or effect?
Expression is defined as: “any activity or communication that conveys or attempts to convey meaning.” And the list of activities is extensive, including, but not limited to:
e.g: “music, art, dance, postering, physical movements, marching with banners, etc.”
e.g: “commercial advertising”
e.g: “posters on utility poles”
As you can see, there is a wide variety of examples that are protected by Section 2(b). From individual practices in the arts, protesting, entrepreneurial efforts, and use of government structures (utility poles) to statically place distribution materials to convey a message or informant.
In regards to the method violence may not be used to justify freedom of speech. Nor can it be in conflict with the underlying values of this provision, e.g: “self-fulfillment, democratic discourse and truth finding.” While with location, they find that “[p]rivate property, for example, will fall outside the protected sphere of section 2(b).” And that with copyright: “freedom of expression does not encompass the freedom to use someone else’s private property.”
Finally, with challenges to the government, an individual is required to prove that they have restricted their right to feely express themselves by using the values of underlying this provision.
“While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).”
Four Aspects of Freedom of Speech
Freedom of Speech has several aspects to it. Helen Pluckrose and James A Lindsay point out in their essay Freedom of Speech and the Fallacy of Demanding to be Heard that there are actually four parts regarding the right to free speech: the right to speak, the right to listen, the right not to speak, the right not to listen.
Section 2(b) outlines the right not to freely express oneself. This explicitly allows a person to be free from coercion to the requirement of speaking or behaving in a way that is contradictory to their actual thoughts and beliefs
“[F]reedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do”
In this provision, it is essential to note that “[s]ilence is in itself a form of expression” Critical social justice theorists argue that “silence is violence” when a person chooses not to speak out against what is to be considered by them to be societal injustice. Paradoxically, they also claim that “words are violence.” Objectively, neither of these statements are true. Violence is physically enacted through force or coercion. Some words are illocutionary, in effect, casting or inciting a person to act. The behaviour may in fact be violent. But words in of themselves are not violence, nor is silence. How is it that we have gone so far from sticks and stones…
Harassment, Non-Protected Acts of Speech, Action and Expression, Terrorism
If someone is forcing you to speak, to express yourself or forcing you to listen, it may be harassment. Harassment may be verbal, physical or applied through the use of some sort of medium, eg: visual imagery. It may constitute one, or a combination of those items listed. The criminal definition is listed below, followed by a brief look at the terrorism provision.
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
With the victim card of “words are violence” or “silence is violence”, one may think that these narratives would be sufficient to justify a complainant if they claimed that they “fear[ed] for their safety.” However, as in noted in the prohibited conduct, there are very specific thresholds for legal authority to acquiesce to the claims of harassment: “repeatedly”, “besetting”, and “engaging in threatening conduct” are some of the verbs used to define that act of harassment. The first two are quite obvious meaning multiple offences, and intentional stalking behaviours.
“[E]ngaging in threatening conduct”, requires sufficient evidence that that a person was intentionally being threatening, rather than just engaging passionately and strongly with an individual. Physical violence and incitement to violence are easy thresholds to judge. It is less clear in an argument. The power of a liberal judiciary is for persons to take complaints to be adjudicated.
Canada’s anti-terrrorism act (83.01) makes it explicit that acts of terrorism are not permitted. There are 12 points that define a terrorist act such as: seizing of aircraft, taking of hostages, suicide bombings. Again, there is very specific thresholds and details to be met.
Incitement of Hatred and Genocide
The Canadian criminal code (319) also has a provision for incitement of public hatred. It is expressed quite clearly and is listed below. The main takeaway is that this is directed at ‘identifiable groups’ who are being targeted with suggestions of violence or libel- hence the term, incitement of hatred, rather than the equivocal ‘hate speech’.
Public incitement of hatred
319 (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[section 2 omitted]
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
“Public incitement to hatred” aligns with Section 318of the Charter of Rights and Freedoms incitement to genocide:
318 (1) Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
With these aspects explicitly stated in the criminal code: criminal harassment, terrorism, incitement to violence, incitement to genocide, it would appear that the Canadian Charter has taken due diligence in it’s effort to allow the maximum amount freedoms to Canadian citizens to exercise their rights to freedom of speech and expression. However, Section 1 of the Charter states:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
So, it appears the government may try using Section 1 of the Charter of Rights and Freedoms to implement new laws under the rubric of critical social theory’s concept of ‘hate speech’
Hate Speech Laws for the Internet
The concept of hate speech has been in Canadian law for decades. In a CBC news article from October 12, 2011, it listed seven cases where people were indicted on actions that were classified as violating the Charter’s Right of Free Speech. There were several cases of anti-semitism, one of homosexuality, and one of racism. The common theme running through these case studies was an incitement to hatred, though. What may be considered incitement to violence. Particularly against a group.
Inspite of all the laws outlined, the current government of Canada under Prime Minister Justin Trudeau seeks to enact additional hate speech laws for the internet. On January 29, iPolitics reported that the Heritage Minister, Stephen Guillbeault stated:
“Moreover, ‘there will be a new regulator (to oversee the framework, which) will implement the new rules and monitor hate speech [emphasis added],’ Guilbeault said in French, adding that the bill will make it possible to impose financial penalties for non-compliance.”
As this is being written, Bill C 10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts has passed parliament and is entering the senate. There has been much consternation over this bill by many Canadians form all walks of life due its censorious nature. This bill was the first step. The Trudeau Liberals have just tabled their next bill Bill C 36: An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech).
It should be explicitly clear, but these bills will be used to silence debate in the public sphere under the guise of protecting individuals from hate speech. The intent to protect the public with additional laws, when the current laws available are fully fleshed out, is a red herring. The Trudeau Liberals are intentionally trying to control the roads of the internet. To curtail freedom of speech. To direct what content individuals may see and experience on the internet. They will not stop there. This will continue until Canadians stand up and speak out against this dictatorial regime.
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