Just what is free speech?

University and college campuses are hotbeds of discussion about free speech and so it seems appropriate to think about this issue as post-secondary students gear up for another academic year.

Freedom of speech is much touted as an integral part of democracy, and probably most, if not all, of us would agree. But how many of us could dig a bit deeper and explain exactly what we mean when we say that?

Charter of Rights and Freedoms

In Canada, freedom of speech is protected by Section 2(b) of the Charter of Rights and Freedoms, which says that, among the fundamental freedoms guaranteed to all of us, is the

“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

This freedom is limited by Section 1 of the Charter, which gives government the right to set reasonable limits that can be justified in a free and democratic society on any of the rights set out in other sections of the Charter.

In other words, like every Charter-protected right, the freedom of speech is not absolute and does not trump other rights, including equality rights. Too often, proponents of free speech forget this and elevate freedom of speech to a position superior to all other legally protected rights.

Criminal law

There are other limitations on free speech. The Criminal Code of Canada, section 319, prohibits speech where the purpose is to incite hatred against any identifiable group.

This section has been used most frequently to prosecute individuals and organizations engaged in racist and anti-Semitic speech and action. In August of this year, Kevin J. Johnston was charged under section 319 because of his anger-fuelled calls on Canadians to attack and injure Muslims in videos he calls the Freedom Report.

According to Elliot Setzer, in Canada, courts seem to be interpreting freedom of speech with a “communitarian philosophy that emphasizes social equality and multiculturalism.” This sounds pretty good to me: we look at free speech from a collective harms-based perspective rather than an individual rights-based one.

Is it a right or a responsibility?

Free speech is seen as a legal right: I have the right to say whatever I want.

But, surely, it should also be seen as both a privilege and a responsibility: I may have the right to say what I want, but I need to understand that as a privilege not enjoyed by all and use my privilege in a responsible way that, at a minimum, causes no harm.

As Mary-Kay Wilmers, editor of the London Review of Books, said:

I believe in the right not to be killed for something I say, but I don’t believe that I have the right to insult whomever I please.

Being controversial is not hate speech

Universities and colleges confront this issue on a regular basis. While hate speech is something we don’t want to encourage, this does not mean banning any topics of conversation or analyses of issues that are controversial or that make people uncomfortable.

We can’t learn if we don’t hear ideas that are new to us, challenge us or, in some cases, offend us.

But, learning environments – like all public space –also need to be and feel safe for everyone who occupies them.

Creating spaces that are inclusive and safe while also open to a wide variety of ideas is challenging, and there are no quick and easy answers for how to do this.

What about those anti-choice demonstrations?

Pornography and abortion have been two key arenas where feminists have fought for limitations on free speech. Earlier this year, I wrote about an anti-choice demonstration in my community that involved both a public display of offensive and likely photo-shopped images of aborted fetuses and a private dissemination of more such photos in brochures that were placed in people’s mailboxes.

Apparently, my community was not the only one that had to deal with these demonstrations. They have taken place in many places around Ontario – I ran into one in downtown Toronto – and have led some people to call for legal action to shut them down.

There have been a number of court cases on this issue. Last year, the Grande Prairie, Alberta, municipal council refused to give permission to an anti-abortion group to place advertisement on city buses and the group took the city to court, claiming that their freedom of speech was being violated. https://www.canlii.org/en/ab/abqb/doc/2016/2016abqb734/2016abqb734.pdf

Justice Anderson, in ruling against the anti-abortion group, said, in part:

I find the ad likely to cause psychological harm to women who have had an abortion or who re considering an abortion. It is also likely to cause fear and confusion among children who may not fully understand what the ad is trying to express.

Because he found that the group’s Charter-protected right to freedom of expression had not been violated, Justice Anderson, unfortunately, did not explore whether the ads constituted hate speech.

When hate speech masquerades as free speech

When people oppose racist, misogynist or other hate speech, they are frequently accused of supporting censorship. This is an inaccurate and unfair accusation.

To speak out against hate speech, even to organize to shut down such speech, is not censorship. It is a call for a nuanced understanding of free speech that will enrich our communities and make them safe for all, especially the most vulnerable and marginalized.

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