Thomas D Marshall (2006)
On Freedom of Expression and its Limitations
From the Common Law World - Canada, the United States, and Britain
Freedom of expression is a tool that is, as John Stuart Mill suggested, always in need of defence. This is, perhaps, because its benefits are so often diametrically opposed to other human desires such as safety, religion, and power. Its regulation then should come as no surprise, since 'ideas' are often a force to be reckoned with; or to adapt a phrase from Shakespeare: Man's mind is mightier than the sword. But, much like a sword, a judgement of free expression's worth comes from an examination of its use and therefore must be judged with regard to content and context. Thus, one must consider how best to manage this freedom so that both free expression and other competing social values attain fruition.
The difficulty of balancing competing values is, however, great. This difficulty often arises not in regard to private conversation or most political discourse, but in the context of some political expression which is so offensive to other social values that it is prone to official sanction. For example, 'racist expression that includes a significant political element' forces one to consider a set of competing interests; freedom of expression (with all of its possible benefits) on the one hand, and on the other the value of maintaining a society which prevents substantial harm to individuals and promotes equal concern and respect for its citizens.
This paper will seek firstly to elaborate on the general importance of freedom of expression. It will secondly demonstrate that the value of expression exists on a "sliding scale" and therefore may be judged by its ability to bring about the social values which underpin such freedom. Finally, it will illustrate that judging the limitations of speech, through the example of hateful expression, may mean expanding the traditional harm principle to include harm's less obvious forms.
Freedom of Expression and its Importance
Within most contemporary writings on freedom of expression only a handful of recurring rationales for its protection appear. Most are merely elaborations on the reasons once proffered by JS Mill in his Essay On Liberty. In general they are; the pursuit of truth, participation in social and political decision-making, and individual self-fulfilment.
Truth
For Mill, mankind's nature being "fallible" meant that a laisser-faire "marketplace" of ideas would help promote the attainment of truth - since only the best ideas would find currency. Only those who believed themselves infallible would suggest to have found the truth, or seek to deny another his expression lest he (whoever that might be) had found truth. For truth to be discovered, therefore, the greatest liberty possible should be afforded every individual in all matters political or otherwise - this would for Mill be the governing principle of society.
Political Participation
Throughout history, many have been the target of suppression for political views then held to be antithetical to the foundations of society. Today however, it is almost uniformly accepted that to promote equal concern and respect for citizens each must be permitted the freedom of political participation. This rationale, which first found life in the writings of contractarian theorists such as Hobbes and Locke, rests on the belief in the inherent worth of the individual and important involvement in the affairs of the regime under which he lives. Individuals must, therefore, be able to voice discontent, proffer alternatives, and question the status-quo freely.
Self-Fulfilment
When reduced to its essential elements, this rationale means the external realization of man's consciousness. According to professor Heyman of Boston University, "a person differs from a thing in not being merely external, but having an inner dimension as well; it is a distinction...that makes it possible for humans to be autonomous." Therefore, denying man the liberty to express his inner being is akin to the imprisonment of his truest self.
The Varying Importance of Expression
It is clear that free expression serves important functions that benefit both society (as a mode for truth-seeking and political exchange) and the individual. But, if this freedom is generally accepted as an important part of what it means to be human and live in political union with others, it is still not necessary to accept that all expression is equally important. This is because 'expression' is unlike its more absolute 'cousins'. Unlike, for instance, Article 3 of the European Convention on Human Rights which prohibits torture, expression is not of value in itself but merely a means of attaining other social goals. Thus expression's importance is a function of its usefulness in bringing about the values which support it - through an appeal to its potentially valuable content in warranting circumstances; or in other words, with regard to content and context.
In Regards to Content
For example, expressive content that targets children in advertising campaigns indeed possesses some value, but few would contend that a law proscribing such content would be as serious a threat to freedom as one forbidding political dissent. Thus, if one takes the Canadian case of R v Keegstra where a schoolteacher was convicted of promoting hatred towards an identifiable group, one can see the limits of expressive content's value. As Justice McLachlin rationalized;
"The suppression of hate propaganda undeniably muzzles the participation of a few...in the democratic process...but...expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values...arguing as it does that...individuals are (to be) denied respect and dignity simply because of racial characteristics...(such) propaganda repudiates and condem(ns) the view that all citizens need be treated with equal respect and dignity so as to make participation...meaningful...I am unable to see the protection of such expression as integral to (a constitutional guarantee of free expression)"
Of course, one might counter-argue that such content regulation is merely a form of view-point discrimination or 'state paternalism.' But Justice McLachlin's argument in favour of 'limited' free expression appeals to a practical sense of justice by suggesting that we protect the values which underpin expressive freedom instead of defending their manifestation. She further refutes Mill's misconception that the "voodoo priest and medical doctor" should be given equal weight since we might know with "a degree of certainty that some (content is) erroneous...(and therefore) of less...value in the quest for truth." Furthermore, as Willmoore Kendall argues, and as demonstrated in Konigsberg v State bar of California , "society may legitimately cherish a whole series of goods - among others, self-preservation (or) the living of the truth they believe themselves to embody" and value these above 'free expression.' Thus, if we accept Justice Dickson and Justice McLachlin's determination that some expression is of low value , and that our democratic values and sense of equality are of high value, it is clear that we might collectively rank some content above others.
In Regards to Context
Similarly, expression's utility varies with context. Thus there are two interrelated variables which impact its usefulness, and hence the "price society (must) pay in order to allow certain acts of expression." Indeed, neither content nor context can lead a life of its own. For example, shouting "fire" in a crowded theatre is of negative value where no fire exists, but such content would be vital in the context of an all-engulfing blaze. Or again, in Jordan v Burgoyne for example, the same expressive content which was “threatening” and “abusive” in the context of an excited gathering would not have led to conviction had Jordan expressed them to a disinterested crowd.
But if we can measure expression's importance by taking into account its content and context, we must now determine the purposes for which we might impose limits on free expression.
The Limits of Free Expression – A Wider Notion of Harm?
If we accept that racist expression is of low value when compared to the values which are harmed by its dissemination, and that such expression might become subordinate to attain other pressing social goals, then racist speech might be legitimately regulated for the prevention of substantial harm to individuals - the prevention of harm being one of the primary goals of society. It must however be stressed that little consensus on what constitutes 'harm' exists.
One central reason for this lack of consensus results from the rigid definitional approach to the word “harm” in that much literature still focuses on the classical notion of harm and not on its less obvious (and often more insidious) forms. If one takes the traditional approach advanced by Mill then only physical harm or slander, for example, can legitimize the curtailment of expression.
Historically, this rather limited conception of “harm” has been the adopted view of the common law world; aptly captured in the American judicial phraseology of “clear and present danger” – a standard which many over the past century view as giving little regard to the consequences (other than traditional harm) that might result.
If one takes a broader view of 'harm' however, by taking into account extreme emotional and psychological harm, it is clear that much racist expression not caught by the 'traditional principle' still results in substantial injury. For example, as Professor Rumney cites, victims of racism suffer depression, anger, stress, impacted health, and feelings of insecurity. As well, “racist speech…operates to diminish the victim’s sense of worth (which) impedes their full participation in many activities of civil society, including public debate.” Such findings were foreseen some thirty years prior by Martin Luther King Jr when he stated;
“As you seek to explain to your six year old daughter why she can’t go to the public amusement park…you see tears welling up in her eyes when she is told that Funtown is closed to coloured children, and you see the clouds of inferiority beginning to form in her little mental sky…distort(ing) her personality…developing an unconscious bitterness towards white people.”
In Canada, while Keegstra was decided on largely theoretical grounds surrounding the value of racist expressive content, the tone of the judgments seems to lend credence to this 'newer' conception of harm. Though no tangible victim resulted from Keegstra’s crimes, Justice Dickson admitted that such speech had the potential to “chill” expression in target groups, cause fear, and distress. He suggested that an individual’s sense of self-worth might be affected, leading them to avoid activities which bring them into the wider society.
Unfortunately, such 'modern' judicial thinking seems absent in the United States. In RAV v City of St. Paul Minnesota the Supreme Court held that an ordinance banning the burning of crosses was unconstitutional because it went beyond proscribing “fighting words” or expression which caused “clear and present danger.” Perhaps optimistically however, it must be pointed out that Justice O’Connor, while concurring with the majority, added that “by characterizing fighting words as a form of debate” the majority was legitimizing “hate speech as a form of public discussion”. Given such pronouncements moving from Mill's traditional harm principle does not appear to be on the horizon of American jurisprudence.
Similarly, the move to include a wider conception of harm as a guiding principle for regulation seems absent in the United Kingdom, which, as Rumney argues in some instances is more veracious in its protection of free speech than the American First Amendment. As Rumney suggests, the British "incitement law leaves most...expression entirely unregulated" so that many racist groups can continue to "distribute its literature" with little regard to the social costs of such activities.
While it is indeed difficult to measure personal injuries like intense fear and intimidation caused by racist expression, the effects are, as noted, humanly perceptible. It is, for example, easy to imagine the trauma caused by burning crosses on one’s property or injury caused to children through exposure to hate. But despite growing evidence that 'traditional harm' is ill equipped to account for such forms of hurt, movement towards a more inclusive harm principle, as seen above, appears far off.
Conclusion
Freedom of expression is always in need of defence: That much is true. If we admit however, that its importance is its ability to attain other social goods - not because it is a 'good' in itself - we find ourselves in the difficult position of giving some expression more 'weight' than others. As has been asserted above, this position is tenable, but open to criticism; not least because balancing competing values is itself controversial. Considering competing interests like the usefulness of hate speech in promoting underlying social values, or the value of preventing substantial harm to individuals, remains an open 'Pandora's Box.' Both interests are susceptible to the argument that if one allows regulation in any area of expression one puts expressive freedom on a "slippery slope" towards tyranny. However, this paper has attempted to illustrate that this balancing act is a necessary undertaking if we are to understand the value of free expression at all. The importance that is carried in content and context is a fluid quotient and therefore poorly represented by rigid rules regarding harm. Flexibility is necessary in law if it is to remain relevant; this challenge, as has been argued, must include expanding the traditional harm principle to incorporate its less obvious, modern, forms.
T David Marshall
