Playing with free speech

Playing with free speech

I’m not normally the sort of person to make a big fuss over philosophical differences between the United States and Canada, but man, if you want a good example of an area where the two countries sit entire solar systems apart, check out these two recent Supreme Court rulings on freedom of speech.

Back in 2011, the Supreme Court of the United States agreed to hear a case testing the constitutionality of those horrible protests of the Westboro Baptist Church people. In particular, they were called to consider a Church rally against the funeral of Corporal Matthew Synder, a deceased Iraq veteran. Synder’s father claimed the Westboro rally, with their “FAGS DOOM AMERICA” signs and so on, caused him emotional distress for which he deserved compensation from the Phelps family. The Phelps clan claimed they had a constitutional right to say whatever they wanted.

And in an 8-1 ruling the Court sided with Westboro.

“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment,” wrote Chief Justice Roberts, on behalf of the Court’s majority. “Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

Citing his Court’s long history of similar findings, the Chief Justice quoted an elegant line from a similar free speech test case back in 1989: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Now flash forward to last week, where a unanimous ruling of the Supreme Court of Canada reached the exact opposite conclusion.

Saskatchewan native William Whatcott was basically a mini-Phelps who enjoyed handing out flyers to strangers about how “sodomites” were ruining Canadian schools or something. Someone was offended, and tried to prosecute Whatcott under the Saskatchewan human rights code, which forbids the distribution of material that could expose minorities to “hatred and contempt.” Whatcott said he had a constitutional right to say whatever he wanted under the Canadian Charter of Rights and Freedoms.

No you don’t, replied the Supremes.

“The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression,” wrote Justice Marshall Rothstein, speaking for his peers.

Hate speech is so harmful, in fact, that even the truth is not a defence.

“Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction,” the consensus opinion continued. “Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.”

Both rulings were very much consistent with larger national trends.

The United States Supreme Court strikes down free speech restrictions with such predictable consistency you really have to wonder why anyone even tries anymore. In 2010 the judges ruled 8-1 in favor of the constitutionality of “crush video” fetish films that titillate perverted audiences by showing pretty women killing small animals. In 2011 they ruled 7-2 that American kids have a constitutional right to buy violent video games. In 2012 they found that the First Amendment entitles citizens to lie about their military background and how many medals they won, and most infamously, in 2009 they narrowly ruled that unions and corporations have a constitutional right to spend as much money as they want on election-year advertising. It seems likely that they’ll soon rule that individuals have a right to give as much money to political parties and candidates as they want, too.

The Supreme Court of Canada, by contrast, has rarely met a restriction on free speech it didn’t like. Even before the Whatcott case, the court upheld restrictions on “hate speech” in two landmark 1990 cases, and in 2004 (in a suit launched by a young Stephen Harper) they ruled in favor of spending restrictions on third-party advertisers during election campaigns. In 1992 they upheld a ban on “degrading or dehumanizing” pornography and in 2000 they let stand a law preventing such smut from being imported (both of which allowed Canada to maintain its infamous banned book list). In 2007 they upheld government restrictions on where and how you could advertise cigarettes, and in 2010 they issued a much-hated 8-1 ruling denying the right of journalists to hide their sources.

Doubtless you’ll agree with some of the Canadian rulings and disagree with some of the American ones (and vice-versa), but it’s important to realize the degree to which all are the products of two very distinct constitutional philosophies.

The American First Amendment declares bluntly that “Congress shall make no law… abridging the freedom of speech, or of the press,” while the Canadian Charter of Rights and Freedoms cautions that civil rights are subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” before announcing that Canadians have “freedom of thought, belief, opinion and expression” etc.

In practice, both Supreme Courts have run as far as they can — in opposite directions — clinging their respective constitutional clauses. The Canadians obsess endlessly over what is and isn’t a “reasonable limit” on expression, which often involves convoluted attempts to clarify how they are protecting some vaguely-defined “public interest” (usually safety) in restraining this-or-that kind of bad-speech, while the Americans simply give every disputed law a quick up-or-down once over: it either restrains free expression (which is bad) or it doesn’t (which is good). Canadian rulings on the speech question are often a mess of ifs and whethers, and complex theoretical “tests” to determine the harm or innocuousness of some controversial statement or publication. American ones usually just say the same thing over and over: free expression is absolute, but it often looks ugly.

Most Canadians like to believe that a hearty respect for free speech is actually something that unites North America. Certainly there’s ample evidence, as illustrated by a flood of editorials opposing the Whatcott ruling in all the major papers, that our Supremes’ literal and unapologetic embrace of “reasonable limits” on civil rights is actually quite at odds with the mainstream Canadian understanding.

But, alas, constitutional law is one of those realms where what the people want or think doesn’t matter a whole lot. With every Canadian Supreme Court ruling on free expression, the precedent of censorship gets stronger, and Canada’s status as a nation with an asterisk beside its right to uninhibited communication becomes a more entrenched component of the distinct Canadian identity.

It’s distinctly troubling.


  1. lukev

    I'm not a law expert… but aren't Canadian judges supposed to take a certain amount of precedent from other common-law nations?

  2. Taylor

    They can if they want. They don't have to if they don't want to.

  3. Jake_Ackers

    Hopefully not. Kind of makes the whole point of having a country or your own Constitution useless. Unless its like a Commonwealth kind of thing.

  4. Brandon

    They do and that is the problem. The UK, New Zealand, and South Africa have all embraced the reasonable limits approach to human rights. (although the UK and New Zealand don't have constitutional bills of rights that can be used to strike down legislation, they have statutory bills of rights somewhat like the old Canadian Bill of Rights) The US is the outlier.

  5. Simon

    The UK does have the ECHR, which I believe the courts usually take as being superior to other law.

  6. Dan

    JJ, if you ever want to say anything, you're more than welcome to visit the USA.

  7. Shannon

    Better yet, he can move there. Permanently. I won't miss him.

  8. Taylor

    I'd disagree with you that the SCC is that far out of line with majority opinion here. Speech repression, government and non-government, has always been a part of Canadian society, press, and personal relations.

    See Tom Flanagan this week, for example. IMHO, really ugly and unwarranted attack on a fairly decent man.

    See how fast George Soros shut Ezra Levant up when he started sprouting far-right nonsense about him. IMHO, perfectly justified.

    And you know what? I'm not that unhappy about it. I lived in London, ON for awhile, and there was this ragtag group called "Northern Nation" or something that would always do anti this or that protests on ethnic/gay pride days. They got bankrupted through the HRC.

    I like that. I have enough confidence in our institutions that they can draw a line and avoid a slippery slope.

  9. zaitcev

    Liking the results of oppression if your government oppresses someone you do not like is incredibly myopic. You know, first they came for Ezra Levant, but…

  10. Taylor

    I have faith in Canadian institutions. I have faith that taking a couple of loser neo-Nazis who expose others to hatred out of the public sphere will not turn Canada into East Germany overnight.

    Ezra's HRC thing? Stupid. He spent way too much on lawyers and complained about that as if it were the HRC's fault, but yeah, it was stupid. And that stupidity, exposed, brought down the law. The system eventually worked.

    Slippery slopes are stopped by the law.

  11. Ironica

    If a governing body stopped me from oppressing another because of my speech, I would be glad of the over-sight. As I am not intending to present difficulties to another's safety, I am not threatened by the constitution.

    I'm an independent and full personality type of person, but that doesn't give me rights to spout off and harm someone else. The Westboro situation is absurd. Fortunately, most realize it is absurd, but what gives them the right to harm someone? Maybe we should start publicly prosecuting them for their religion which is obviously wacko-jacko. It would be protected.

  12. KJM

    It's perplexing that you would invoke the "first they came for" phrase. Freedom of speech did not protect Jews from the Nazis. In fact, freedom of speech was used as a weapon against them. The Nazis used freedom of speech to whip a impressionable populace into a frenzy against a minority. Not unlike what is happening to Muslims in the USA today. The way you used this phrase shows a complete lack of it's meaning. This phrase is meant to be a warning against not using your freedom of speech against those who would choose to oppress minorities. Freedom of speech has existed in the USA since their independence yet it didn't prevent over 300,000 innocent Japanese from being sent to internment camps during WW2. It didn't stop over 10,000 from dying in these internment camps. Yet, many of these people were US citizens who had lived in the country for many generations. What would you have chosen to do with your freedom of speech if you lived at the time when this happened? What would you do if they choose to internment Muslims today?

  13. @TheInvisibleDan

    Freedom of speech did not protect Jews from the Nazis. In fact, freedom of speech was used as a weapon against them.

    Completely wrong. Weimar Germany actually had tough laws against hate speech, including anti-Semitism. (And when the Nazis took over, adapting those existing laws made it somewhat easier for them to crack down on critics of their regime.)

  14. Sad Clownfish

    "not all truthful statements must be free from restriction."

    The (Mostly) True North, strong and free(?)

  15. Bob

    One small detail I would have added is that if you're a minority, in particular an Aboriginal in Canada then you can spout all the hateful nonsense you want about the evils of the white man and no judge will dare say you don't have a right to…

  16. Taylor

  17. David

    A First Nations guy with Anti-Semitism? That's a bit out of left field

  18. Taylor

    Number one rule of studying First Nations issues: Nothing is ever what you think it will be.

  19. Thornus

    While in law school, I took a class on Comparative Constitutional Law. My final paper focused on the difference in approach to hate speech between Canada and the US. Hate speech has been unprotected in Canada since at least R. v. Keegstra, [1990] 3 S.C.R. 697 (Can.). From my reading of Keegstra, it appears that most of the jurisprudence prohibiting hate speech is based on Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11, § 1 ("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").

    I'm a little surprised that the truth is not a defense to hate speech allegations. Section 319(3)(a) of the Criminal Code of Canada says that the truth is a defense. Without reading further into this case (which would have been monumental for my paper had it come out while I was in school), my guess is that the reasoning is that the truth can still be a defense but it can't be phrased in an inflammatory manner (which to me suggests that the truth is essentially no longer a defense).

    I'm not a fan of hate speech crimes. Then again, I'm not a fan of really any limits on free speech. Americans tend to have a reputation around the world for fetishizing free speech though.

  20. Taylor

    The focus tends to be on Section 1 because Section 2 rights are read very literally by the Court, so just about everything you can imagine is considered a violation of the right to expression (or religion, etc.).

    This leads to some bizarre results, because the Crown has the burden in Section 1 rather than the claimant, so one would think it would be more difficult. But the proportionality tests are so rationalized that just about every decision reads like the Whatcott decision: Equal balance between two extremes, etc.

    PS You can just call it the Charter, no need for the official cite. ;-)

  21. Thornus

    I copied those cites directly from my paper. Blame the Blue Book. ;)

  22. Taylor

    Mine was the McGill Guide. Of course they simplified everything the year after I left.

  23. Jake_Ackers

    "Americans tend to have a reputation around the world for fetishizing free speech though. "

    Wish the protesters in Egypt knew about that. Although yes free speech in the US is a lot more than most countries. Mostly because everyone disagrees on everything. Otherwise we would have Fahrenheit 451.

  24. Andrew

    Little Eagle Friend!!! Always get excited when he makes an appearance

  25. Simon

    "the Americans simply give every disputed law a quick up-or-down once over: it either restrains free expression (which is bad) or it doesn’t (which is good)"

    That's not really accurate. The USA also has its own tests. There are limits on free speech in America. It's just that those limits are much weaker than in Canada. The Constitution doesn't say "Congress shall make no law… unless the speech defames a person", or "unless the speech would incite a crime", or "unless the speech is child pornography", yet defamation, incitement to crime, and child pornography are illegal all the same. The justification in each case is basically the same: they are forms of speech that cause harm, and where harm is sufficiently great, there is no First Amendment protection.

  26. J.J. McCullough

    Fair enough. Though I sometimes wonder if child porn possession (as opposed to creation) would be legalized by the Supreme Court if such an opportunity came up.

  27. Jordan

    New York v. Ferber, 458 U.S. 747, 752, 102 S. Ct. 3348, 3352, 73 L. Ed. 2d 1113 (1982)

  28. OldsVistaCruiser

    J.J., is that the way your Supreme Court justices dress while on the bench? As someone from the States, I would not be exposed to such images (not out of any problem with it, just curious!)

    Our Supreme Court justices wear rather conservative, but modern, robes while on the bench. An image of the U.S. justices can be found here:

  29. Taylor

    The hats are worn very rarely.

  30. SES

    The red robes are only worn for special occasions. For normal hearings they wear black robes with white collars.

  31. Colin Minich

    An interesting post, JJ, but you forgot to mention the clear and present danger doctrine that actually DOES impose limits on freedom of speech/press/assembly. It's one of the rare utilitarian viewpoints that goes ahead to shut people up who preach such hate speech to incite violence.

    That being said honestly as much as this post or cartoon may give American freedoms the flashiness it advertises, it's a blessing and a curse. As John Kerry put it, the Constitution grants people the right to be as stupid and ignorant as they want to be and sadly when said stupid/ignorant people have power and/or money, it tends to garner influence. Look at the anti-intellectualism movement in the US. That if anything helped promote some pretty stupid speech going on.

    I think it might also be worthwhile to expand this to Western Europe, where perhaps an even greater example goes in the form of the radical Muslim protests that call for death and beheading and whatnot, and then the nations' own defense of freedom of speech in regards to Mohammed cartoons. I'm on the side that they should be able to draw them and not be intimidated by oversensitive thugs. The difference here, as compared to my example of the stupid being given a voice in the US, is that more often than not the political cartoons actually have some intellectual insight to them and it's not just rambling hate speech you'd hear from a backwoods racist.

  32. Dan.W

    Frankly, I think the "anti-intelectual movement" owes far more of it's strength to the pompas, condescending response intellectuals have had to it than and speech put out by the movement itself.

  33. Colin Minich

    Ignorance breeds easy votes, Dan. Look at the fearmongering tactics of not just American politicians but the Tea Party, Chavistas, religious leaders, racially-charged candidates, etc. And, sorry to be ironic, but it's "pompous." You kinda shot yourself in the foot there, man.

  34. Dan.W

    And yet, "fearmongering" is not one word.


    Fear mongering only works when it reinforces something people already believe. Those sorts of things will spread far quicker by word of mouth then that can in any way actually be censored against.

    And, again, the flames are fanned all the more when intellectuals are condescending to people who believe it. The gullible are all the more quickly to take to a "us verses them" mentality because their critics have already taken to it.

  35. Colin Minich

    Neglectful omission of spacing doesn't really counter misspelling…but I digress.

    Not really. Fear mongering is an effective tactic on the already ignorant or UNKNOWING. I hate to invoke Godwin but even Hitler is credited with acknowledging that the bigger the lie you spread amongst an unknowing populace the more likely it'll be held as truth. Frankly I don't care if some intellectuals are condescending. I don't like arrogance either but I give credit to people who actually put their time in and studied. And steeped further in irony is the fact the leaders of the anti-intellectual movement are often learned men and women themselves who set the stupid upon those they disagree with. In a utilitarian point of view, there is no good excuse for the anti-intellectualism movement.

  36. Dan.W

    I disagree, and I think "Truetherism" and Birtherism" are great examples of this… You can inform these people all fucking day if you like, but they will always choose to believe whatever they want because it's the most convenient truth for them. It's not any issue as to what they know, it's a matter of what best corresponds with their already held beliefs.

    People believe what they want to believe. What facts may or may not be true is irrelevant.

    And, from a utilitarian point of view, if provoking the anti-intellectualism movement only seems to make it stronger, perhaps we should stop doing that.

  37. Colin Minich

    Birtherism and Trutherism were born out of this anti-intellectual ideal that you should question EVERYTHING. It breeds ignorance and absurdity that goes this far and I for one am sick of it. It's the most convenient truth for them because we as a whole let it get that sad.

    Then how does one NOT provoke the anti-intellectualism? If anything those who postulate in absurdity should be ridiculed into obscurity.

  38. Jake_Ackers

    Problem I have with intellectualism is the value that is put on a certain kind of knowledge. Because it's viewed highly, it must be true. So you get all the sheep believing in it and thinking they are smart.

  39. Dan.W

    The problem I really have with intellectualism is that it puts a higher value on consensus then it does the empiricism and rationalism that it likes to think it does.

  40. Colin Minich

    In some fields, but not all. I can admit to political intellectuals being full of crap, but what scares me about the anti-intellectual movement is how it has the potential to place religiosity over concrete scientific and mathematical facts.

  41. Dan.W

    Actually, I really do think that science (or, least physics) has been taken over by a consensus mentality. That once the scientific community has agreed on something, it's treated as blasphemous to dare question it. I don't know if this is really the place it get into it, but I can think of a few theories that, despite all evidence to against them, are desperately clung onto because there's consensus on them.

  42. Colin Minich

    Such as? I also hope climate change is not one of these even if not completely physics related.

  43. Jake_Ackers

    Dinosaurs not having feathers. Dinosaurs not being killed by an asteroid and then being killed by an asteroid. Blackholes not existing. Tomatoes were poisonous.

    The Earth was flat is the worst. Science proved it wasn't. Yet governments used it to further their own ideas. Don't travel too far, because if you do you will die. More like you will take the unclaimed land over there.

  44. Colin Minich

    In the fields of science and math, more often than not they've paid their dues to get their results, and I'll take that into consideration over the rampant fears of "liberal colleges." Pride is nice but not when you're an idiot.

  45. Jake_Ackers

    I think Dan.W touched on it. Liberal colleges I think are the most dangerous in this context. Liberal studies are based on very little hard science, the hard facts are manipulated to further some ideology or philosophy.

  46. Xavier Huatantan

    Obviously listening to an idiot means moronicness is contagious. I mean riding off with vulgar obscene language is no concern to some legitimate topic being discussed for the merit it may or may not show that it holds due to supposive nature of even listening to such,but if one would say amendments are only definitions of constitutional rights,well how can one begin to argue such.

  47. Jake_Ackers

    If the public is turned to a radical view (violence) as a result of free speech. Then there is something fundamentally wrong with that society. Free speech is the least of your problems or worries in that situation.

  48. Trenacker

    Great essay as usual, J.J.

    It appears that, once a free society mostly internalizes certain norms, divergent opinions become inconvenient to the extent that even the presentation of truth is disputed. Since all speech-as-a-public-act, like all abridgement of speech, is social engineering, the fight is often between (A) people who want to do what causes the most good, and (B) people who want to take advantage of the imperfections of a society out of the belief that to abridge in the interest of the "good" today simply advances some real but ill-defined "bad" tomorrow.

  49. jogiff

    I'm surprised you didn't mention National Socialist Party of America v. Village of Skokie where the Supreme Court defended the right of the American Nazi Party to march through Skokie, Illinois, a town where about 15% of the residents were Holocaust survivors.

  50. Shannon

    It's not free speech you're championing, JJ. It's the freedom to lie. I'm not particularly surprised you would feel threatened by that.

    Here in Canada, you're not allowed to call yourself a "news" channel and then make statements which are grossly untrue. Doing so means you're no longer to call yourself a "news" channel, a "news" magazine, or whatever. The Americans can, and so you have Fox News.

    The result? One in five Americans think the President was born in Kenya. One in four thinks he's secretly muslim. One in three think global warming isn't happening,

    Sorry JJ, there is no "universal" right to free speech, fires in theatres being just one example. We also have laws against slander and libel for a reason.

    It is this "freedom to lie" that is one of the reasons that the US is the basket case that it is now. If your cartoon was in any way truthful, that wouldn't be a robot that eagle is hugging. It would be a Frankenstein monster.

  51. Sirgiyan

    Canadian butthurt detected :)
    I live in Toronto btw, and the best description of Canadian mentality I can come up with is MENTAL VEGETARIANS. This is THE direct result of "don't hurt me" mentality expressed in those court decisions. I'm fine with that but DO NOT expect next Steve Jobs or Henry Ford to be Canadian. Be happy with pathetic Blackberry and an excuse for a coffee named Tim Horton's…
    I do hope that my logic needs no further explanation, although you might be canadian as well.

  52. Mungojelly

    Constitutional law is a realm where what the people want doesn't matter? That is not at all true except of course in despotic states, but I will grant you that both the US and Canada are presently despotic.

  53. shx

    The Rousseau message is full of shit "I may not agree with you,but i'll die for your right to say it ? AH! I'll never shed a drop of my blood for the Ku Klux Klan or the Westboro Baptist Church.Freedom of speech is NOT ABSOLUTE.