Free speech has always had limits. We should intelligently define them.

Matt Burgess

Free speech is a bedrock right of democracy. In order to properly hold our governments to account, we must be able to criticize them openly without fearing retribution. Beyond this, we need free speech to have a truly competitive marketplace of ideas, something many (myself included) would argue is essential for sustained societal progress.

Free speech has dominated international headlines in recent days, following the deadly attack on satirical newspaper Charlie Hebdo in Paris by extremists offended by cartoons mocking Islam. There has since been an unprecedented outpouring of solidarity for free speech, embodied by the hashtag #JeSuisCharlie (I am Charlie).

Yet a few pundits (e.g. the CBC’s Rex Murphy) have pointed out hypocrisy in #JeSuisCharlie, some participants of which have, at other times, tried to censor people or ideas offending them. How can those who shut down campus seminars on abortion, men’s issues, and other controversial topics; who muzzle of government scientists and environmental NGOs (via the Canada Revenue Agency audits); or who call for career-ending disciplinary action against the 13 dentistry students who posted misogynistic material in a private Facebook group (if there is such a thing); claim to be defenders of free speech, they ask? Others ask why we should defend Charlie Hebdo’s content, which, last week’s tragedy notwithstanding, was often clearly offensive without being particularly insightful.

In fact, free speech has always had limits, even in countries such as the U.S. and Canada where it is considered sacrosanct. Under U.S. law for example, free speech does not protect one’s right to incite crimes; make threats; slander or libel someone; ‘intentionally inflict emotional distress’; distribute ‘obscenity’, child pornography, or blueprints for certain dangerous inventions; or intentionally mislead consumers; to name a few. Moreover, there are some forums in which free speech is not protected. For example, schoolchildren and government employees may legally be limited much more in their speech than average citizens. Interestingly, Canadian law even prohibits blasphemous libel, punishable by up to two years in prison.

Indeed, I suspect most would agree that free speech should have limits, at least in some extreme cases. I, for example, do not want to live in a world where people can freely go around making death threats, spreading damaging falsehoods, or distributing child pornography. Nor do I want to live in a world where instructions for making nuclear bombs are freely available to the public. I suspect you don’t want to live in this world either. Of course, we also don’t want to live in a world of extreme censorship.

While this all may seem obvious, it should force us to recognize that free speech debates are not truly about a binary choice (free speech or no free speech), but rather about drawing a line somewhere along a spectrum (e.g. how damaging must speech be for it to be censorable?). Once we can make this realization, we can move out of the world of automatic and polarized reactions to absolute principles, and into a more critical world where we can let reason and our broader societal objectives guide us.

For example, if the societal objectives of free speech are to hold governments to account and to facilitate a meritocracy of ideas, while limiting harms from speech, free speech does not seem to justify the Citizens’ United decision, allowing virtually unlimited political contributions in the U.S., despite the Supreme Court ruling otherwise. Censoring government scientists should be another non-starter. Personally, I would argue that the importance of academic freedom on campuses to building a meritocracy of ideas would preclude the censorship of most campus speakers, even those that offend. Similarly, while I personally have no interest in reading or writing aggressively offensive satire of the Charlie Hebdo variety, on balance it should probably be legal. In the Dalhousie case, due process should run its course; and regardless of the outcome of the campus investigation, it looks like the legality of what was said in those Facebook posts will now be thoroughly evaluated by the authorities.

Generally speaking, I hold strongly that free speech should always be innocent until proven guilty, even though it does and should have some limits. In order to uphold the meritocracy of ideas crucial to a well-functioning, progressive democracy, we must place an onerous burden of proof (of significant harms) on any proposed limits to free speech. But we must also recognize that some types of speech can indeed meet this threshold.

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4 thoughts on “Free speech has always had limits. We should intelligently define them.

  1. Here is a debate from a while ago on The Agenda discussing if and how criminally or civilly culpable hate speech can be distinguished from free speech, and what role, if any, Human Rights Tribunals should play in regulating speech.

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  2. http://www.nationalpost.com/m/wp/full-comment/blog.html?b=news.nationalpost.com/2015/02/04/jesse-kline-if-people-have-the-right-to-insult-islam-they-must-also-have-the-right-to-support-islamism&pubdate=2015-02-04

    Here is another article on free speech in Canada that defines one of the most important considerations very well: limits on free speech must be done in ways that are the same for everyone, no matter what your political viewpoint and who you support. This principle provides no issue for bans on incitement to violence or other crimes (speech restrictions that most people support), but becomes much more problematic when speech is banned merely for offending a group or individual, because of the inherent subjectivity in offensiveness. In practice, bans on offensive speech are bound to be applied hypocritically, with the most powerful group in a given jurisdiction deciding what is too offensive to tolerate and what is not. For example, the article above points out that the Canadian government (and the French government) would say that expressing support for Islamism (as distinct from actually inciting terrorism) should be banned, but insulting Islam should not be banned. Many university campuses in the US and Canada, where growing restrictions on free speech and academic freedom have been widely publicized recently, would likely reach exactly the opposite conclusions as the government in the relative offensiveness of supporting Islamism vs insulting Islam. In the end, the most effective antidote for offensive speech or satire is not censorship, but more speech and satire pointing out its offensiveness. Satirists like John Stewart and Stephen Colbert have been some of the most effective vehicles for shifting public opinion about racism and homophobia, having likely far more impact than any measures enacted to censor racist or homophobic material recently in public forums, on campus or elsewhere.

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