Transcript Part III: Free Expression

FREE EXPRESSION AND
CENSORSHIP
KEEGSTRA CASE,
TOBACCO CONTROL ACT
DAVID AHENAKEW, BILL WALCOTT
SOME ISSUES: WHAT CAN JUSTIFY,
ANYTHING, A LIMIT ON FREE SPEECH?
IF
HOW IMPORTANT IS THE VALUE OF FREE
SPEECH, OR THE RIGHT TO IT?
WHAT VALUE OR VALUES IS IT SUPPOSED TO
PROTECT? IS IT A GOOD IN-ITSELF?
FREE SPEECH
MORE ISSUES:
WHAT GOOD DOES CENSORING ANYTHING
DO? COMMUNITY STANDARDS IN CASE OF
PORNOGRAPHY.
HOW DOES IT PROTECT, IF AT ALL?
AGAIN, VALUES AND MORE VALUES!
PRIVACY AND ITS VALUE!
SHOULD INTERNET ACTIVITIES BE
CENSORED?
HATE PROPAGANDA LAW
SECTION 319: 1.”Every one, who , by
communicating statements in any public place,
incites hatred against any identifiable group
where such incitement is likely to lead to a
breach of the peace is guilty of a) an indictable
offence and is liable to imprisonment for a term
not exceeding two years; or an offence
punishable on summary conviction.”
SAME SECTION IN CRIMINAL CODE AS
GENOCIDE CRIME!
HATE PROPAGANDA LAW
SECTION 2: Wilful promotion of hatred.
“Every one, who, by communicating statements,
other than in private conversation, wilfuly
promotes hatred against any identifiable group is
guilty of a) indictable offence....”
defences
a) if he establishes that the statements
communicated were true.
b) if, in good faith, the person expressed or
attempted to express by an argument an opinion
on a religious subject or an opinion based on a
belief in a religious text;
c) if the statements were relevant to any subject
of public interest, the discussion of which was for
the public benefit, and if on reasonable grounds
he believed them to be true; or
defences
d) if, in good faith, he intended to point out, for
the purpose of removal, matters producing or
tending to produce feelings of hatred toward an
identifiable group in Canada.
issues in the law
ESTABLISHING TRUTH WHERE IT IS
DEBATEABLE.
RELIGION, AS DEFENCE?
BELIEF IN TRUTH OF STATEMENT--LIKE
LIABLE LAWS!
IMPORTANCE OF INTENT AND WILL! HOW TO
ESTABLISH THIS?
QUICK GLANCE AT
CHARTER
CHARTER OF RIGHTS AND FREEDOMS,
SECTIONS 2 AND PART OF 3.
2. Everyone has the following fundamental
freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and
expression, (also press and other media)
c) freedom of peaceful assembly and
d) freedom of association.
QUICK GLANCE AT
CHARTER
Democratic Rights:
3) Every citizen of Canada has the right to vote in
an election of members of the House of
Commons or of a legislative assembly and to be
qualified for membership therein.
keegstra case
CHIEF JUSTICE DICKSON:
REAL HARM TO IDENTIFIABLE GROUPS:
SOCIAL AND PSYCHOLOGICAL HARM.
PARLIAMENT OBJECTIVES IN PASSING
CRIMINAL LAW IS IMPORTANT BECAUSE
HATRED IS NOT GOOD FOR A SOCIETY.
keegstra case
ARGUMENT FOR TRUTH: LITTLE CHANCE OF
STATEMENTS BEING TRUE. WHICH
STATEMENTS, HOW DO WE JUDGE THIS?
FREE EXPRESSION CAN IN FACT, DICKSON
SAYS, BE DESTRUCTIVE TO OUR SEARCH
FOR TRUTH.
FREE SPEECH IS BEST JUSTIFIED FOR
POLITICAL REASONS, TO INCREASE
DEMOCRACY, FOR ELECTIONS.
DEMOCRACY SEEMS TO REQUIRE THIS
FREEDOM.
keegstra case
RECOGNITION THAT WHEN MUZZLED HATE
SPEECH IS A LIMITATION OF THE
PARTICIPATION OF A FEW INDIVIDUALS.
FOR THE SAKE OF THE MAJORITY?
UTILITARIANISM?
IT CAN RESTRICT THE POLITICAL
PARTICIPATION OF THOSE IDENTIFIABLE
GROUPS.
keegstra case
DICKSON EVEN CLAIMS THAT SUPPRESSION
OF HATE CAN ENCOURAGE THE
PROTECTION OF VALUES CENTRAL TO THE
FREEDOM OF EXPRESSION.
HOW SO? MEANING?
keegstra case
LIMITS ON HATE PROPAGANDA ARE DIRECT
AT A SPECIAL CATEGORY OF EXPRESSION
WHICH “STRAYS SOME DISTANCE FROM
THE SPIRIT OF S. 2 [OF CHARTER]”
SO HATE PROP. NOT EQUIVALENT TO
SPEECH WHICH IS PROTECTED!
keegstra case
REASONS WHY THIS LEGISLATION MIGHT
NOT BE CONSISTENT WITH PARLIAMENT’S
PURPOSE.
1. PROVISION WOULD ITSELF PROMOTE
HATE PROP.
2. INCREASE IN PUBLIC DISTRUST OF GOV.
AND PERCEPTION OF HATE PROP. AS
CONTAINING SOME TRUTH.
3. NAZI GERMANY CASE: LAWS AGAINST
WERE PASSED BEFORE NAZIS CAME TO
POWER, DID NOT STOP IT.
keegstra case
“MENS REA” INTENT OF 319 SECTION 2 IS
NARROW AND CONCISE.
WEIGHING STATE OBJECTIVE AGAINST
EFFECT OF LIMIT.
CAN A BALANCE BE STRUCK?
LIMITS, LASTLY, ARE NOT THAT SERIOUS,
APPLY ONLY TO A SPECIAL CASE OF
SPEECH.
TOBACCO CONTROL ACT
SASKATCHEWAN LAW:
ISSUE: CONCEALING TOBACCO ADS AND
CONCEALING PRODUCTS FROM YOUNG
PEOPLE IN CONSUMER ENVIRONMENTS.
AGAIN ISSUE OF PROPER BALANCE
BETWEEN FREE SPEECH (OF TOBACCO
SELLERS, DISTRIBUTORS) AND
PROTECTING PUBLIC FROM HARM!
TOBACCO CONTROL ACT
WHAT HARM?