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Free expression is not in opposition to equality — it is essential to attain it, new book argues


In a free and democratic society, Macfarlane argues, limits on speech should come with a high justificatory burden

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Dilemmas of Free Expression, edited by University of Waterloo political scientist Emmett Macfarlane, is a new book that explores the contemporary issues surrounding free expression in Canada — issues that consistently make headlines in Canada, and abroad. This excerpt is an edited version of the introduction to the book, which is published by the University of Toronto Press.

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Among the panoply of traditional civil rights, freedom of expression stands as the alpha and omega. Rights like the right to protest, freedom of association, freedom of religion, and freedom of the press quickly disintegrate into charred vessels absent the foundation provided by free expression.

Other rights, like the right to vote, similarly hinge on our ability to freely communicate, argue, debate, and advance ideas. And where would equality rights or other values related to the cultivation of a just society be without free expression?

As the Supreme Court of Canada enunciated in one of its earliest judgments under the Charter of Rights and Freedoms, “the freedom to express oneself openly and fully is of crucial importance in a free and democratic society,” and as such it is “an essential value of Canadian parliamentary democracy.”

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The protection of free expression is integral, the Court outlines in another judgment, for seeking and attaining the truth, for participation in social and political decision making, and for “diversity in forms of individual self-fulfillment and human flourishing.”

What, then, to make of a contemporary context in which free expression is seemingly under threat on a variety of fronts and in which public discourse around free speech itself appears increasingly polarized along ideological lines?

A gamut of political and social issues related to free expression demonstrate quite clearly that the limits of the right are no more easily identifiable now than they ever were. Some of this is the direct result of new challenges and technologies.

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Aside from the plethora of substantive legal and policy issues at stake, one of the animating features of this collection is recognition that the quality of public debate around free expression has generally been poor, and that in the news and social media terrains it has felt very much like a pitched ideological battle.

On the far right, provocateurs seek to win a perverse form of free speech martyrdom when politicians, organizations, or university administrators overreact and censure or investigate controversial or discriminatory messages.

Notorious public figures like Jordan Peterson, a University of Toronto professor who garnered media coverage after questioning whether human rights law would require him to use the preferred pronouns of trans people, and Ezra Levant, who was subject to complaints for publishing anti-Muslim cartoons, have developed a degree of fame for having been on the wrong end of attempts at censorship, be it by universities or human rights tribunals.

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They have developed a fan base that treats them as champions of free speech, although caution is warranted when it comes to viewing their broader advocacy as genuine. It is not uncommon to see people of their ilk lash out at mere social criticism for their speech, or in some cases even call for, or engage in, attempts at censorship themselves.

There are, it sometimes seems, few principled commentators who speak out against censorship regardless of whether the content of the expression aligns with their ideological world views. I was one of those who spoke out when administrators and faculty at Wilfrid Laurier University famously hauled Lindsay Shepherd, a teaching assistant, before them for questioning after she showed a tutorial group a clip (featuring Jordan Peterson) of TVO’s current affairs program The Agenda discussing the use of non-binary pronouns.

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Yet it is also important to acknowledge how disingenuous and hateful some of the expression at the centre of these controversies can be. For example, the debates prompted by the Peterson and Shepherd incidents over the use of preferred pronouns of trans people call into question people’s very identities, and arguably their human dignity.

In some ways, understanding what prompted this debate is perplexing, because it evinces an unwillingness to treat people with basic respect (one honestly wonders when or how someone could be forced to use a particular pronoun to refer to someone rather than simply using their name – the controversy itself has an incredibly manufactured feel to it).

It is also a discourse filled with, to put it diplomatically, misleading statements about the law. Peterson, for example, mischaracterized a federal law (claiming the human rights legislation could send him to prison) that did not even apply to his situation as a university employee, where relevant provincial law, not federal, would apply.

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Yet far-right discourse is not the only culprit degrading the quality of debates on free expression. Some self-styled progressives have contributed to the illiberal sentiment that the promotion of free speech is itself a nefarious thing. There are even efforts among some to equate speech with violence (something the Supreme Court has appropriately rejected).

Fundamental to this view is the idea that permitting the free expression of offensive or hateful views is antithetical to equality. Yet there seems to be little recognition that allowing for limits on offensive speech empowers some authority – be it the state, university administrators, or some other person in power – to draw lines of acceptability in a context where there will be widespread disagreement about what counts as hateful.

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More fundamentally, the deleterious effects of weakening speech protections are just as likely to be turned against equity-seeking and historically oppressed groups than they are to work in their favour. It results in the sort of culture that spurred Dalhousie University to launch a disciplinary investigation against a student for the crime of speaking out against “white fragility” because other students found it offensive.

By setting free expression in opposition to equality, certain progressives forget that the fight for the latter is contingent on the former: free expression is what enables the calling out of white supremacy and racist policies, and it is of course core to the right to protest. In short, free expression is perhaps the most important tool in the arsenal for those who would fight on equality’s behalf.

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Instead, from some progressive circles there is a knee-jerk desire to censor and sanction controversial, hateful, or otherwise offensive opinions and forms of speech. Beyond eroding a principle that equality seekers themselves depend on, this has also directly contributed to the martyrdom and rising profiles of people like Levant, and in so doing creates a broader political culture in which free speech is increasingly seen to be associated with the right wing of the ideological spectrum.

The tactic continuously backfires because its most common impact is to bring more media attention to the speaker and the offensive views that those trying to censor or deplatform wanted to quash in the first instance. More importantly, the belief that expression should be regulated on the basis of content implies that there are decision makers who can be trusted with the authority to decide what views are acceptable.

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This is not a problem limited to speech deemed unlawful; it applies as much, if not more often, firmly within the boundaries of lawful speech. In 2017, Andrew Potter, then the director of the McGill Institute for the Study of Canada, penned an op-ed after a traffic jam on a Montreal highway left hundreds of people stranded in their cars overnight.

In his essay, Potter decried a “mass breakdown in the social order” and wrote that “Quebec is an almost pathologically alienated and low-trust society.” Political elites in Quebec, including Premier Philippe Couillard, condemned the op-ed. Potter soon “resigned.” If the Quebec establishment can exert enough pressure on McGill University that the institution would fire an established academic and writer like Potter over an allegedly offensive op-ed, why would we think individuals facing systemic forms of oppression would not be even more vulnerable to such tactics?

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Indeed, we see across North America that it is not just far-right forms of expression resulting in rings and censorship on university campuses.

The public debate over free speech too often seems to boil down to the charge of “you can’t say that” or the defence of “my free speech.” There is no sense on one side that social criticism in the face of unpopular speech is free speech.

There is no sense on the other side that in a free and democratic society one must learn to live with the right of others to express themselves, not only in saying things you disagree with but also in saying things that might make you angry or sad. This is not an argument for free speech absolutism. Indeed, there is no such thing as a free speech absolutist.

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Instead, any assessment of the legitimacy of particular restrictions on free expression depend on the purpose, context, and nature of the limit. In a free and democratic society, limits on speech should come with a high justificatory burden. When limits are established, and especially when those limits are not content-neutral, empowering state officials or similar actors to draw lines within the bounds of the law on the permissibility of certain forms of expression is an exercise fraught with difficulty.

This is true even when the purported aim of regulation is to enhance free expression. For example, the Province of Ontario recently mandated, under threat of funding cuts, that every publicly funded university and college develop a “free speech policy” based on the University of Chicago Statement on Principles of Free Expression.

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The move is designed to ensure that post-secondary institutions remain places for open discussion and free enquiry, that ideas and opinions not be censored based on their offensiveness, and that members of the community not be permitted to obstruct or interfere with the freedom of others to express their views.

On the surface, the free speech policy enacts basic rules any sensible university administration would already have in practice in order to protect free expression as a value concomitant with the university’s wider mission. Yet the policy has come under criticism for threatening free expression, particularly as it relates to an implicit desire to quash protests against controversial speakers.

Since peaceful protest itself is a protected form of expression, balancing the interests at stake is exceedingly difficult. When does a protest become so disruptive as to prevent the free expression of ideas by members or invitees of the university community? And why do we think university administrators – or the provincial government, for that matter – are capable of identifying that line?

What is needed are forward-looking appraisals of ways to confront challenging moral issues, policy problems, and controversies that pay heed to the fundamental right to free expression.

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