Freedom of speech often not what it's cracked up to be

  • November 11, 2010
Three recent incidents provide insight — and perhaps a warning as well — about how Canadians interpret the right to freedom of speech, especially when it comes to unpopular topics. Like any legal and constitutional principle, some interpretation is involved. The old saw about not yelling “fire!” in a crowded theatre applies here because constitutional principles must be balanced against factors such as public safety and the impact on others, among other things.

Perhaps this constant balancing is what prompted Carleton University to feel perfectly justified in having pro-life students arrested and handcuffed for trespassing when they attempted to set up a GAP (Genocide Awareness Project) exhibit in one of the most public walkways on campus. According to the school, the students had been offered an alternate space to protest. According to the students, the space was in a campus area with few passers-by. Even given that the students were asked not to proceed, the school’s response was surely out of proportion to the alleged offence.   

Waving graphic posters probably resulted in arrests — at the school’s direction — because of the hot-button nature of the topic. Yet the school denied that any free-speech principle was involved, basically claiming that students need to learn to behave themselves.

The second incident involved a speaking engagement by columnist Mark Steyn at the University of Western Ontario. Steyn isn’t known for being well-behaved when it comes to writing about hot-button issues such as the declining birth rate and the risks of relying on immigration to pick up the slack. Some find his work hostile to  Muslims, while others say it focuses on an aspect of Islamic extremism that we ignore at our peril. Most would agree his presentation can be extremely funny, characterized by an enviable way with words.

Accommodating his recent trip to London, Ont., was no easy feat for organizers. The room first offered by the university was barely big enough for a Latin class, so organizers tried to move the event to a local convention centre. But, fearing protests, the centre’s management declined the booking, so organizers went to Centennial Hall in downtown London. The event attracted a near-sellout audience. No protest materialized and the only place you might find a more orderly crowd would be in church.

Steyn’s visit to London is an example of how concerns about protests and filings with Human Rights Tribunals can affect free speech. In my work I am occasionally asked for an opinion on whether a book or article is likely to expose the publisher to a human rights complaint. Without breaking any confidentiality, I can say that there is work that does not get published because of this concern. It’s quite possible some never gets written because of it.

The fear is not imaginary. Complaints of anti-Muslim hatred were filed against Maclean’s magazine for Steyn’s commentary on immigration policy, and against Ezra Levant, publisher of Western Standard magazine, for printing the notorious “Muhammad cartoons” in its news coverage. Fr. Alphonse De Valk and Catholic Insight magazine were brought before the federal human rights tribunal in 2007 for online content elaborating on Catholic teaching about homosexual conduct. While the complaints were ultimately dismissed, all faced substantial expense and disruption in their lives in defending themselves.

Which brings me to the third situation, the late October announcement that the Supreme Court of Canada will hear an appeal from the Saskatchewan Human Rights Commission against Bill Whatcott, who distributed controversial pamphlets in Saskatoon and Regina almost a decade ago. Most of the pamphlets outlined in strong language what Whatcott saw as the indoctrination of students to a “homosexual agenda” in public schools. The Saskatchewan Human Rights Commission fined him $17,500 for having “exposed to hatred, ridiculed, belittled or affronted the dignity” of gays and lesbians.

It would take a book to document the history of Whatcott’s run-ins with the law for his pamphleteering. His lawyer, Tom Schuck of Weyburn, Sask., believes that it is unprecedented for one person to face so many charges but never be convicted.

Of all the cases discussed here, this is probably the one that puts the principle of free speech to the greatest test. I’m sure I’m not alone in hoping  no one close to me ever expresses views as harsh and negative as Whatcott’s. It’s hard to dispute that his writing exposed homosexuals to ridicule. What is at issue is whether his right to say it is protected under freedom of expression and freedom of religion.

Historically, democracies have enshrined such freedoms not because people are forever saying the nicest things, but precisely because sometimes they don’t. While Whatcott’s case may well be the one that makes us squirm the most, it could prove to be the one that has the greatest implication for how tribunals and courts deal with the expression of unpopular viewpoints, including those with religious underpinnings.

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