Freedom of Speech - a cornerstone of civil liberties

"Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom." Benjamin Cardozo, US jurist (1870-1938)

We are all very familiar with the Danish newspaper Jyllands-Posten, which published twelve cartoons of the Prophet Muhammad, sparking outrage in the Muslim community, intense and violent protests and an extensive international debate. This debate has gained new impetus as the cartoons have been re-publicized in various cities across Canada, and recently been made available at Winnipeg's Centennial Library in its display of the Western Standard. These events have once again brought to light the ongoing national dispute regarding the right to "freedom of expression" and the fettering of this right through "hate speech" laws, a limit that is purported to discourage harmful speech and to foster racial, religious and cultural respect.

In attempting to clearly identify an opinion on this issue, one is simultaneously torn between the desire to vigilantly defend the democratic right of free speech and being keenly aware that hateful speech can and does have the potential for deep hurt and offence to those who are subjected to it.

The inherent difficulty with voicing a precise opinion on this issue, is that no aspect of this issue is precise. No aspect of this debate is founded on undeniable "truths". The "issues" range from the failure of the western world to integrate and accept Muslim culture; to whether this is in fact hate speech; to whether hate speech is an appropriate limit to free speech and, if so, who defines what is "hate speech".

It is upon this realization, that no aspect of this debate is clearly black and white and that "truth" is obviously a malleable and relative term, that one can find value in the protection of "free speech", and therefore form an opinion in this debate.

Debate on the freedoms of thought and expression are fundamental to a democratic society. If open forms of expression are not at least permitted, if not encouraged, the potential chilling effect on society as a whole, and to our fundamental democratic freedoms in particular, cannot be denied.

There is certainly a need to promote a tolerant and respectful society. It is rightly recognized that free speech is appropriately subject to certain reasonable limits. Hate speech does have the potential to incite violence and promote fraudulent words. Hate speech often targets already victimized minority groups. However, although the constitutional right to freedom of expression has the potential for abuse, and is not absolute, it should not be limited by such relative reactions as deep offence or such imprecise limits as those purportedly imposed by "hate speech" laws.

This conflict commenced in a call by Danish newspapers for cartoonists to undertake an assignment others were afraid to embark on for fear of reprisal. As a result, and to unearth this conflict, 15 cartoonists undertook the assignment. These cartoons highlighted the unvoiced conflict. Accusations that these cartoons amount to "hate speech" exemplify the impossibility of identifying a hate-speech limitation with sufficient precision sufficient to catch only harmful speech without overreaching and encompassing expressions of speech which are rightly protected in a free and democratic society.

"Hatred" is a vague, imprecise and infinitely malleable term. It is not defined by applying a clear legal test, which distinguishes destructive forms of speech and speech which creates constructive conflict and tension.

Hate speech laws promote a certain level of cynicism towards human judgment, reason and the ability to self-regulate. It is not advantageous to allow our courts, a group of people which are undoubtedly not representative of the country's population, to define what is "outside" of appropriate expression. This is an undesirable level of government or judicial censorship and paternalism.

As much as the standard of "acceptable speech" should not be guided by majority opinion, neither should it be dictated by the receiver's level of indignation or offense. The standard should not be guided by threats to become violent or by fear of reprisal. Most debates on controversial topics will offend someone receiving its message. Opinions are offensive, judgments are offensive, truth is offensive. Offence or upset experienced by the audience of speech is not sufficient to justify the imposition of a restriction of the fundamental right to free speech. Excessive speech, rather than restricted speech is the desirable goal. Counter-speech rather than censorship is the desirable response.

There is an inherent difference between statements that should not be made and statements that cannot be made. The criminal law is not our only means of social change and regulation. Other forms of social persuasion exist to deter harmful speech, including market-driven considerations such as consumer demand and editorial discretion, to personal persuasions such as social, familial and religious values and mores.

The potential negative repercussions of leaving such regulation to the criminal law is not proportionate to the positive results. There has been no observable positive relationship between the suppression of this type of speech and the reduction of racism and fostering of multiculturalism. Often, tension is productive, often debate needs to be brought to the surface, and not repressed to avoid conflict. Clearly any observable benefits of "hate speech" laws are not proportionate to the violence done to the fundamental pillar of democracy that is free speech and its potential for social change and societal development which emerges through communicative interactions and discourse.

"The free exchange of ideas is necessary to the formation of public opinion as well as individual and group identity. It is a means in itself, and it is an essential value to the sort of society we wish to preserve." (McLachlin J., R. v. Keegstra)