Free Speech and Its Limitations

Interestingly, the Constitution of Canada does not have a specific protection of ‘free speech’. What Canada has is section 2 of the Canadian Charter of Rights and Freedoms. Section 2 provides as follows:

“2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.”

On the face of it, section 2(b) would appear to be a broader and clearer protection than just ‘free speech’.

The First Amendment of the United States Constitution puts it this way:

“Congress shall make no law … abridging the freedom of speech, or of the press ….”

It must be noted that all of the ‘rights and freedoms’ under the Charter are rights and freedoms of the people versus government. These are not to be confused with one person’s right against another person. Rights of citizens versus citizens are found elsewhere, either in legislation or the common law.

In a sense, no Canadian government can pass a law that expressly violates a person’s freedom of thought, belief, opinion and/or expression. Governments know this. If they want to violate this ‘right’, they must be indirect about it. Or, if challenged in court, they resort to section 1 of the Charter that allows breaches of certain rights and freedoms if the government can show the breaches can ‘be demonstrably justified in a free and democratic society’. Governments do this in Canada by essentially saying ‘we are a democratically elected government so obviously if we say it is justified it is justified’. Often the courts buy this argument, without much evidence of justification being required, particularly where public health is at stake (Covid) or where prolonged civil disorder, even if peaceful, threatens proper order (the Freedom Convoy and the use of the Emergencies Act).

Let’s back up a bit and talk about why freedom of ‘speech’ matters at all. John Stuart Mill, in his book, “On Liberty”, gives the quintessential argument in favour of free speech. In a nutshell, he argues that free speech is at the foundation of good democratic government and personal liberty. Governments can be fallible either in acting on their own opinions or in acting on the opinions of others. A bad law or policy can only be identified as such through rational debate. Fallibility is the central concern of free speech. How can the defects in an opinion, belief, policy or law be identified but through rational debate? How can rational debate occur without the freedom to speak against the proposed government policy or law, or against the beliefs and opinions that promote it?

What we are considering here is political speech, speech for and against government laws and policies. It seems plausible that this sort of speech must be the most unfettered. Yet, not surprisingly, when governments are full of hubris, thinking they are infallible, they look upon any form of opposition as being hateful, harmful or dangerous to the public order. They colour matters of free expression as matters against the public interest. Governments pass various sorts of laws suppressing free speech on the basis of public order, even speech that is directed only at government. This is made all the more possible where government takes the side of an identifiable group in passing laws for the benefit of that specific group. Any opposition to the government policy or law then gets vilified as an attack on the group. For example, if one opposes government policy on immigration numbers, those opposing the policy become racists, xenophobes, whatever. It is a not-so-clever trick by government because eventually the ruse becomes obvious.

An issue of free speech that is in the news periodically these days concerns what may be called ‘forced or compelled speech’. A common context for this is with professional regulatory bodies. These bodies are created by government and are bound by the Charter of Rights and Freedoms. There have been reported instances of professional bodies requiring their members to make declarations on matters of some political and social controversy. [for one example, conduct a Google search for news articles concerning the Law Society of Ontario and compelled speech]. Failure to make these declarations can lead to disciplinary proceedings and loss of professional status.

In another context, professional bodies are instituting proceedings against members for offensive speech. [see Peterson v. College of Psychologists of Ontario]

When these regulatory bodies are challenged in court, the court defers to the professional bodies’ determinations of whether or not rights are being violated and if so whether the violation is minimal or justified.

In the case of compelled speech, how being forced to say something on a substantive issue that you do not want to say, is not a violation of your ‘freedom of thought, belief, opinion and expression’ seems a Gordian Knot. In other words, ‘how many angels can dance on the head of a pin’ kind of reasoning is needed to address what is a clear violation.

There are societal limits to freedom of speech. Good manners and etiquette sometimes require one to hold one’s tongue. Statements intended to insult and anger are rude and may lead to violence. Statements that are truly hateful and intended to cause identifiable harm may be properly called criminal. Defamatory statements are actionable by the defamed person and are best avoided. Only freedom of speech extremists, fanatics perhaps, would argue for a completely unrestricted right to say anything to anyone at any time regardless of the harm caused. Mill, a libertarian by all standards, still draws the line at harm.

But harm has become a pivotal term. It seems that any objectionable speech can be linked to unsubstantiated, vague and general ‘harm to the public’.

I might note a curious position that mainstream media sometimes takes. It says that two sides of an issue should not be given equal coverage because one side of the issue is clearly correct and the other side of the issue is clearly wrong. These are my words, not theirs, but it amounts to the same thing. The media is weighing the ‘correctness’ or perhaps ‘value’ of positions, and, on that basis, only publishing the positions that they agree with. It seems that the media is suffering from the same hubris as government (and regulatory bodies) when it comes to being infallible.