Freedom of Speech: Contrasting Canadian and American Views

Michael Robert Caditz
Vancouver Island University
Author Note
Michael Robert Caditz is an undergraduate student of philosophy.
Contact: michaelcaditz@stumail.viu.ca

Abstract

Countries allow freedom of speech to varying degrees. Plato’s ideal aristocracy implements censorship for the greater good, whereas modern democratic states recognize freedom of speech as a basic human right.
However, in neither Canada nor the United States is freedom of speech absolute. The debate is over where to draw the line. Each country has laws prohibiting such things as incitement to violence, libel, and copyright infringement. However, the definition of “freedom of speech” becomes problematic when it comes to “hate speech.” Upon which side of the line of permissibility does such expression fall?

Canada and the United States have chosen two significantly different approaches to hate speech. This represents the fundamental difference in official Canadian and American interpretations of freedom of speech. The Supreme Court of Canada upholds anti-hate speech laws, whereas, the United States Supreme Court consistently overturns laws barring expression of “hateful” opinions.

Notwithstanding the positions of the courts, there is disagreement in public opinion within each country over whether hate speech should be forbidden by law. Advocates of prohibiting hate speech argue that there are competing values at play: free speech versus respect for others, and a balance must be achieved. Others argue that if certain words might be prohibited as “hate speech” depending on how they are subjectively interpreted, there could be a chilling effect on controversial speech in general, even speech which should be protected.

Keywords: free speech, freedom of speech, hate speech, Canadian Charter of Rights and Freedoms, Supreme Court of Canada, United States Supreme Court, First Amendment

Freedom of Speech: Contrasting Canadian and American Views

In ancient oral societies, “speech” literally referred to spoken word. Later, speech becomes the content of media from writing to telephone, broadcasting, and the internet — all components of the new oral society (Gasher, 2012).

This paper compares and contrasts how two modern countries, Canada and the United States, define “freedom of speech.” Is it absolute? What are its limits?

Background

There are many forms of government, yet each does not allow freedom of speech for its citizens. Plato (Republic, 2008, p. Book VIII) wrote of four types of government: aristocracy, timocracy, oligarchy, democracy, and tyranny.

But to what degree does a state allow “freedom of speech”? Is all speech regulated? Is all speech allowed? Is it somewhere in between? The just city proposed in the Republic (an aristocracy) doesn’t offer a high degree of freedom of speech: Speech and poetry are not permitted to suggest that the gods are dishonest (2008, pp. Book III, 383a); and poets and artists are restricted to producing content deemed acceptable by the state (1892, pp. Book III, 401). On the other extreme, one might imagine a society where there were no restrictions whatsoever on speech, whether the content were true, false, theft of another’s intellectual property, or injurious to another (or a group).

A relatively high degree of freedom of speech is associated with democracy (University of Alberta Centre for Constitutional Studies, 2002–2015) wherein freedom of speech is considered a basic human right (U.S. Department of State’s Bureau of International Information Programs). In both the Canadian and American forms of democracy, freedom of speech is provided by law, however in neither country is it absolute. The Canadian Charter of Rights and Freedoms, Section 2 (Government of Canada, 2015a), protects “fundamental freedoms,” including freedom of expression. However, Section 1 of the charter permits laws which impose “reasonable” limits upon those freedoms . Section 1 has been used to impose restrictions on obscenity (R v Butler, 1992) and importantly, hate speech (R v Keegstra, 1990). Indeed, the Criminal Code of Canada, Sections 318, 319 and 320 (Government of Canada, 2015b) forbid “hate propaganda,” including advocating genocide. Further, provincial anti-hate statutes have been upheld by the Supreme Court of Canada (Saskatchewan Human Rights Commission v Whatcott, 2013). The Criminal Code of Canada also prohibits treason, sedition, defamatory libel, and obscenity (Clement, 2015). Similarly, the First Amendment to the United States Constitution prohibits laws abridging freedom of speech. However, the United States Supreme Court, recognizing freedom of speech is not absolute, has allowed exceptions for laws against inciting violence (Brandenburg v. Ohio, 1969) or provoking a fight (Chaplinsky v. New Hampshire, 1942), false statements of fact (libel, slander) (Gertz v. Robert Welch, Inc., 1974), obscenity (Miller v. California, 1973), child pornography (New York v. Ferber, 1982), and copyright infringement (Harper & Row v. Nation Enterprises, 1985). Thus, while both Canada and the United States recognize freedom speech in general, they each specify exceptions. The important difference between the Canadian and American exceptions is the permissibility of Canadian ant-hate propaganda statutes, which has no parallel in the United States.

Canadian Approach

The prevailing Canadian approach might be described as “freedom with responsibility.” Statute is officially viewed as a legitimate method for countering embedded racism and bigotry. Journalist Jonathan Kay argues: “Canada’s human-rights law is a product of the 1960s, when much of our society truly was shot through with bigotry and prejudice” (2012). Kay is referring to the Canadian Human Rights Act (Government of Canada, 2015c), which contains various anti-discrimination provisions, and included a section outlawing “the communication of hate messages by telephone or on the Internet” until that particular section was repealed in 2012 by a Conservative government (apparently responding to public opinion which felt the law went too far). However, hate speech remains criminalized by The Criminal Code of Canada and provincial statues.

To be sure, there is much disagreement within Canada about the legality of hate speech laws. On one extreme there is this notorious comment which produced outrage within Canada: Canadian Human Rights Commission investigator Dean Steacy was asked, “What value do you give freedom of speech when you investigate?” His response: “Freedom of speech is an American concept, so I don’t give it any value … It’s not my job to give value to an American concept” (Levant, 2014). On the other side of the argument, philosophy professor Mark Mercer (2014) doesn’t believe there’s been much benefit for the price of reduced freedom of speech: “Canada is no better a place in which to live as a result of our many hate-speech prosecutions and convictions than it would have been otherwise. That actual hate-speakers have been fined and jailed in this country has not improved the condition of marginalized Canadians one iota”.

American Approach

The United States Supreme Court historically and consistently strikes down laws which restrict speech — including hate speech — unless it falls into one of the categorical exceptions noted, e.g. incitement where there is an imminent danger of physical violence. Even hate-filled speech which merely advocates use of force (but does not cause, or threaten to cause, imminent violence) is not sufficient to warrant an exception to the First Amendment (Brandenburg v. Ohio, 1969). Further, attempts by universities in the United States to regulate hate speech were frequently overturned in the courts (Hall, 2002).

Notwithstanding the Supreme Court’s long history of refusing to back down on its protection of hate speech, there is substantial public option which would support an American anti-hate speech law: Fifty one percent of Democrats support an anti-hate speech law according to a 2014 poll (YouGov).

Argument for Criminalization of Hate Speech

It’s a state’s prerogative — further, its responsibility, proponents argue — to balance freedom of speech with competing interests. Even in countries where freedom of speech is most broadly protected, such as the United States, it is not absolute. It’s a question of where to draw the line. There are competing values at play: freedom of speech versus respect for others, including minorities. The British Lord Bhikhu Parekh (2012) writes, “Although free speech is an important value, it is not the only one. Human dignity, equality, freedom to live without harassment and intimidation, social harmony, mutual respect, and protection of one’s good name and honour are also central to the good life and deserve to be safeguarded. Because these values conflict, either inherently or in particular contexts, they need to be balanced” (p. 43). Proponents of the Canadian interpretation argue that Canada achieves a reasonable balance between the competing interests. The Supreme Court of Canada (Saskatchewan Human Rights Commission v Whatcott, 2013), in its ruling upholding Saskatchewan’s anti-hate laws, stated that they address a pressing and substantial issue, and are proportional to the objective of “tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination”.

There is the “morals and symbols argument”: The state should not be value-neutral when it comes to protecting vulnerable groups. The Canadian government must take a clear, principled stand against hatred and intolerance. Not only does the government serve as a role model for its citizens, but also on the world stage. (Heinze, 2014)

Further, there is international precedent for blocking hate speech. Two United Nations agreements prohibit incitement to racial or religious discrimination or hatred: The International Covenant on Civil and Political Rights (ICCPR) (Article 20) and The Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Article 4). As Brian Leiter states, “Such [hate speech] regulation is unconstitutional content-based regulation of speech in the U.S., but is common in most other Western democracies (emphasis added)” (2012).

Argument against Criminalization of Hate Speech

It’s true that freedom of speech cannot be absolute. There will always be interpretation involved, such as in determining whether the expression was incitement to violence. However, a call to action (violence) is different in kind than expressing a mere viewpoint, no matter how hateful — and this difference is a more objective basis for drawing the line between permissible and non-permissible speech, whereas the question of mere “hateful” content is subjective.
Further, it is argued, freedom of speech is a hollow concept if it only exists when the content is pleasant, non-controversial, and non-offensive. It is precisely when speech is disagreeable and even offensive to many that it tests a society’s commitment to the principle of freedom of speech. Certainly, such a deep commitment is not conditional upon content being agreeable to the majority. Freedom of speech pertains to the act of expression, regardless of the content — with some exceptions as exemplified above — but without an exception for mere opinion.

Censoring speech because of its perceived content is embarking on a slippery slope where assessment of content is subjective, open to interpretation, and therefore any controversial opinion is subject to possible censorship depending on who’s doing the assessment. Speaking of a hypothetical United States which allowed anti-hate speech legislation, Leiter (2012) states “ . . . Evangelical Christians would soon present themselves as a ‘vulnerable’ group, oppressed by a secular society, and demand appropriate regulations governing how the secular elites speak about them . . . because Evangelical Christians do have access to political power, they are in a position to get their self-representation as “vulnerable”, as implausible as it may seem, recognized by the law. What if other pseudo-vulnerable groups follow suit?”
If certain speech might be criminal depending on how it is interpreted, there could be a chilling effect on controversial speech in general, even speech which should be protected. For example, the mere threat of notifying the police and accusing someone of illegal speech could cause the speaker to refrain from expressing his legitimate opinion to avoid any possibility of being suspected, harassed, and/or investigated.

Freedom of speech is not a privilege, but a human right. An editorial in the Toronto Star (Toronto Star Newspapers Ltd., 2012) stated: “Free speech shouldn’t be taken as a licence to preach racism, homophobia, anti-Semitism or other evils in the media or anywhere else”, as though free speech were a privilege granted discretionally by governments. This might sound reasonable on the face of it — however a censor could substitute other types of speech into that sentence, e.g. “Free speech shouldn’t be taken as a licence to preach subversion, blasphemy or other evils in the media or anywhere else.” If that were the law, we certainly wouldn’t take “free speech” as a “licence,” because free speech would not, in fact, exist.

Finally, there’s the argument that anti-hate speech laws don’t produce toleration at all, although they may be a result of it:

The case for hate-speech prohibitions mistakes the cart for the horse, imagining that anti-hate laws are a cause of toleration when they are almost always a consequence. In democracies, minorities do not get fair, enforceable legal protections until after majorities have come around to supporting them. By the time a community is ready to punish intolerance legally, it will already be punishing intolerance culturally. At that point, turning haters into courtroom martyrs is unnecessary and often counterproductive.
In any case, we can be quite certain that hate-speech laws did not change America’s attitude toward its gay and lesbian minority, because there were no hate-speech laws. Today, firm majorities accept the morality of homosexuality, know and esteem gay people, and endorse gay unions and families. What happened to turn the world upside-down? (Rauch, 2013)

Summary

It’s agreed that freedom of speech is not absolute; the question is where to draw the line. The United States and Canada each have laws prohibiting such things as incitement to violence, libel, and copyright infringement. However, The United States Supreme Court continues to disallow laws barring expression of “hateful” opinions, whereas the Supreme Court of Canada continues to uphold anti-hate speech laws. This represents the fundamental difference in American and Canadian views on freedom of speech. However, within each country and separate from judicial decisions, there is disagreement over whether hate speech should be forbidden by law.

References

Brandenburg v. Ohio, 395 U.S. 444 (United States Supreme Court 1969).

Chaplinsky v. New Hampshire, 315 U.S. 568 (United States Supreme Court 1942).

Clement, D. D. (2015). Censorship. Retrieved from Canada’s Humanrights History: http://historyofrights.ca/encyclopaedia/main-events/censorship/

Gasher, M. S. (2012). Mass Communication in Canada. Don Mill, Ontario M3C 0H5: Oxford University Press.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (United States SUpreme Court 1974).

Government of Canada. (2015a, 10 22). Constitution Act, 1982. Retrieved from Justice Laws Website: http://laws-lois.justice.gc.ca/eng/const/page-15.html

Government of Canada. (2015b, 10 22). page-166. Retrieved from Justice Laws Website: http://laws-lois.justice.gc.ca/eng/acts/C-46/page-166.html#h-92

Government of Canada. (2015c, 10 22). Canadian Human Rights Act. Retrieved from Justice Laws Website: http://laws-lois.justice.gc.ca/eng/acts/H-6/page-1.html#docCont

Hall, K. (2002, September 13). Free speech on public college campuses overview. Retrieved from First Amendment Center at Vanderbilt University and the Newseum: http://www.firstamendmentcenter.org/free-speech-on-public-college-campuses

Harper & Row v. Nation Enterprises, 471 U.S. 539 (United States Supreme Court 1985).

Heinze, E. (2014, March 31). Nineteen arguments for hate speech bans — and against them. Retrieved from Free Speech Debate: http://freespeechdebate.com/en/discuss/
nineteen-arguments-for-hate-speech-bans-and-against-them/

Kay, J. (2012). Good riddance to Section 13 of the Canadian Human Rights Act. Retrieved from National Post: http://news.nationalpost.com/full-comment/
jonathan-kay-good-riddance-to-section-13-of-the-canadian-human-rights-act

Leiter, B. (2012, 7 29). The Harm in Hate Speech, Reviewed by Brian Leiter, University of Chicago. Retrieved from Notre Dame Philosophical Reviews, an Electronic Journal: https://ndpr.nd.edu/news/32077-the-harm-in-hate-speech/

Levant, E. (2014). CHRC legal brief: Steacy was right, freedom of speech is “an American value”. Retrieved from therebel.media: http://www.ezralevant.com/chrc_legal_brief_steacy_was_ri/

Mercer, M. (2014, 4 7). Censorship is a double-edged sword. Retrieved from Le Prince Arthur Herald: http://princearthurherald.com/en/politics-2/
censorship-is-a-double-edged-sword-661

Miller v. California, 413 U.S. 15 (United States Supreme Court 1973).

New York v. Ferber, 458 U.S. 747 (United States Supreme Court 1982).

Parekh, B. (2012). Rethinking Multiculturalism. In M. &. Herz, The Content and Context of Hate Speech. Cambridge University Press.
Plato. (1892). Republic. In B. Jowett, The Dialogues of Plato Vol. III. New York and London: Oxford University Press.
Plato. (2008). Republic. In A. S. Bailey, The Broadview Anthology of Social and Political Thought Volume I. Peterborough, Ontario K9J 7H5, Canada: Broadview Press.
R v Butler, 1 S.C.R. 452 (Supreme Court of Canada 1992).

R v Keegstra, 3 S.C.R. 697 (Supreme Court of Canada 1990).

Rauch, J. (2013, December). Kindly Inquisitors, Revisited. Retrieved from reason.com: https://reason.com/archives/2013/11/15/kindly-inquisitors-revisited/1
Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 13 (Supreme Court of Canada 2013).

Toronto Star Newspapers Ltd. (2012, June 10). Canada’s Parliament is right to repeal Section 13 of human rights act. Retrieved from thestar.com: http://www.thestar.com/opinion/editorials/2012/06/10/
canadas_parliament_is_right_to_repeal_section_13_of_human_rights_act.html

U.S. Department of State’s Bureau of International Information Programs. (n.d.). What is democracy? Retrieved from http://www.ait.org.tw/infousa/zhtw/docs/whatsdem/whatdm3.htm

University of Alberta Centre for Constitutional Studies. (2002–2015). Freedom of Expression Background. Retrieved from http://ualawccsprod.srv.ualberta.ca/centres/ccs/issues/
freedomofexpressionbackground.php

YouGov. (2014, September 27). America divided on hate speech laws. Retrieved from yougov.com: https://today.yougov.com/news/2014/10/02/
america-divided-hate-speech-laws/