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Some Freedom for Some Speech


The Canadian Supreme Court's record of protecting free speech is disconcertingly wobbly.

Originally published in the National Post. Republished with the permission of the author.


Andrew Coyne

 Author Notes

Nationally syndicated columnist for Southam Newspapers, and contributor to Saturday Night magazine, TIME magazine, Wall Street Journal and National Review

 Essay - 12/18/2000

The thing to remember about any Supreme Court ruling upholding freedom of speech is that the Supreme Court does not actually believe in freedom of speech. It believes in some freedom for some speech.

Actually, so do I. Even a free speech extremist like me makes some grudging exceptions: libel, incitement to violence, Kathy Lee Gifford. What distinguishes the court is rather the utter lack of any coherent basis for deciding what is or is not a valid infringement of free speech rights.

The unhappy result is that even when the court gets it right it gets it wrong: A ruling that looks like a win for free speech, at least in the specific case before the court, all too often is grounded in a narrow or anti-libertarian logic, opening the way to much greater abuses in other cases.

In Irwin Toy, for instance, the court rightly held that the general legal presumption in favour of free speech should not be suspended merely because the speaker in question happens to be a corporation: in this case, a children's toy manufacturer. Yet at the same time it ruled that advertising "directed at" children could be restricted in the most draconian way, based on the airiest of assertions of the harm that would result.

In RJR Macdonald, similarly, the court refused to countenance a total ban on tobacco advertising -- but suggested that a ban on persuasive ads would be perfectly all right. The government stepped over the line in prohibiting "purely informational" advertising, the court ruled. But a ban on the more seductive "lifestyle" advertising would be in keeping with the law's intent: in the court's words, "to prevent Canadians from being persuaded." Advertising is constitutionally protected, in the court's schema, as long as it doesn't work.

Examples of such incoherence abound. The court threw out the "false news" law, in the case of Ernst Zundel, but upheld the law banning "promotion of hatred" in the case of James Keegstra. But the ne plus ultra of Supreme confusion remains the Butler decision.

In that much-lauded ruling, the court held that for a thing to be found obscene, as defined under the Criminal Code, it was not sufficient that it be morally objectionable. Rather, it must have caused, or be likely to cause, some harm to someone. So far, so defensible. But the court instantly eviscerated this distinction of any meaning by ruling that pornography could be assumed to be harmful to women.

The Little Sisters case, on which the court has just pronounced, could appropriately be called "son (or daughter) of Butler," inasmuch as the case again involved the obscenity law, this time as it was applied by Customs officials. And once again, the court got it half right.

To understand just what the court was dealing with, it's useful to review what happens to obscene material produced in this country. You write a book, say, A Short History of Frottage. You find a publisher. Some Crown prosecutor decides to charge you with distributing obscenity. The material is assessed by a judge in open court, with all the usual legal protections for the accused.

Now consider what happens to the same book, imported from another country. A customs officer, perhaps intrigued by the title, seizes it. End of story. It is not distributed among the public; the public might never even know it exists. It is not assessed in open court, but in the privacy of the customs officer's office. And while his decision may be appealed, the burden of proof is on the importer to show that the material is not obscene, rather than on the government to show that it is.

That Customs seemed peculiarly eager to apply this regime to gay and lesbian material, as in the case of Vancouver's Little Sisters bookstore, is only one of the many injustices in the system, and the one the court could most reliably be depended upon to correct. In addition, the court found the law's reverse onus was a clear violation of the presumption of innocence.

But the majority of the court upheld the basic system of prior restraint -- that is, of government agents seizing material before it can be distributed to the public, rather than prosecuting, if need be, after the fact -- as imposed at our borders. And while the three judges in the minority were bold enough to suggest that imported obscenity should be subject to no greater restrictions than the homegrown variety, even they were not willing to question the obscenity law itself.

But that, surely, is the greater wrong, here. Absent any convincing reason why obscenity should be prohibited -- absent, that is, any demonstrable harm or even the realistic apprehension of it --it is a matter of detail how it is prohibited, or where, or by whom.

If freedom of speech means anything, it means the right to say things the majority finds offensive: The right to say only approved things is no right at all. Eventually even the Supreme Court may understand this.

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