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On the limits of free speech

The Canadian Supreme Court’s ruling against William Whatcott has reignited free speech debate.  That it is controversial at all comes from an oversimplification of the nature of the right of free expression.

To summarize, Bill Whatcott is a prominent anti-gay and anti-abortion protester in Canada.  Though Canada has the freedom of expression enshrined in its Charter of Rights and Freedoms, hate speech is categorically forbidden.  Whatcott was fined for picketing a variety of institutions and handing out pamphlets containing said hate speech.  After numerous appeals and reaching the Supreme Court, the judges unanimously upheld the fine.

Most people think of the right to free speech in a very black and white way, you either have it, or you don’t.  This could not be further from the truth.  To be sure, the freedom of speech is an extremely important civil right.  From a political perspective, it allows information to propagate unimpeded so that the people can make informed political decisions (who to vote for, how to vote for a referendum or plebiscite, whether to revolt or not, etc.)  However, even in countries which are considered to have freedom of expression, there are always limitations.  Here are a few:

  • Child pornography.  The reason that child porn trumps freedom of expression is to prevent the exploitation of children.
  • Libel.  If you defame a person, group, or thing and it causes harm, you can be taken to civil court over the offense.
  • Fraud.  Lying or deception for personal gain is illegal, go to jail, do not pass go.
  • Copyright law.  You may not freely disseminate the intellectual property of others.
  • Dissemination of trade secrets or national secrets.  Otherwise known as espionage.
  • Sedition.  Plotting to overthrow the government is frowned upon in all nations.

Even the staunchest of free speech advocates would have a hard time arguing to eliminate any of the above restrictions.  And don’t bother trying the slippery slope argument either, because that’s just bullshit.

Of all the examples listed above, there is a common factor.  In each case, there is a party who suffers injury or harm.  As long as said victimized party is not a domestic political opponent, we can accept limitations of free speech if it causes harm.  So how does hate speech fit into this?  At best, it is libelous.  At worst, it incites violence or other unlawful acts against the targeted group.  [Sidebar: the USA does not specifically prohibit hate speech unless it promotes an imminent unlawful act].  While the general right of free speech is an important tool (if not the most important tool) for democracy, hate speech is, and always has been a tool of the oppressor.  Examples are too numerous to mention; take any tyrant in history who has oppressed a minority group and at its heart is hate speech.  I told myself I would not mention it, but the urge is irresistible, so here it is: Hitler.

The ultimate irony is that hate speech, considered to be free speech in the USA, can deprive or delay other important civil rights.  When comparing civil rights between Canada and the USA, we can see a clear difference. You don’t have to believe this correlation, all you have to do is turn on Fox news to see the effect in action for yourself.

Canada USA
Abolishment of slavery (as Upper Canada) 1793 1865
Women’s right to vote 1917 (except 1940 for Quebec*) 1920
Anti-discrimination law 1977 Human Rights Act 1964 Civil Rights Act**
Same sex sexual activity 1969 2003
Same sex marriage 2005 Illegal in 41 states as of 2013

*To be fair, Canada isn’t all honey and roses. Hate speech laws are administered by the provinces, and there is plenty of hate speech bandied about in Quebec, most notably by its politicians. But that’s a conversation for another day.
**Ok, the USA beat Canada on anti-discrimination laws. But mainly due to civil unrest and violence in the USA due to the de facto mistreatment of minorities.  There was no such unrest in Canada.

There is another important difference between American and Canadian free speech laws are those that govern deception in elections. Canadian federal elections are overseen by a non-partisan Chief Electoral Officer governed by the broad underlying principle of fairness. Fairness plays no part in American elections, as exhibited by the mishmash of federal electoral laws which vary from state to state. Political fiction, voter suppression, and gerrymandering are rife in the USA. To be sure they happen in Canada also, but they are the exception rather than the rule, and cause political scandal when exposed. One can argue that a domestic political opponent is fair game, but the counter argument is that the injured party in any kind of political deception is the voter. Indeed, when lies and untruths abound in the political landscape and the voter cannot make an informed decision, is this any different from not having the right of free speech in the first place?

The debate for free speech is over, and free speech won unequivocally. But once you’ve got it, where do you draw the line? That’s an important conversation which is all too often ignored.

A note to anyone commenting on this blog post. Hateful language and trolling will not be tolerated and those comments will be deleted. Hate speech is not allowed here.

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