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 the Westboro Baptist Church people stage all the time. 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 hateful “FAGS DOOM AMERICA” signs and all the rest of it, 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 sick “crush video” fetish films that titillate 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.
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