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Freedom of speech challenge likely to go to country’s top court

Today the United States is the democracy that places the highest value on freedom of expression. In its early years, however, the republic held speech rights in much lower esteem. The First Amendment to the U.S. Constitution states that the government shall “make no law… abridging the freedom of speech, or of the press”. It was originally interpreted as following British law of the time in only forbidding government interference with speech before its actual publication.

This doctrine of prior restraint did not protect anyone from prosecution and punishment after the publication of something judged to be offensive or dangerous.

In fact, after the First Amendment came into force, Congress saw no problem in passing the Seditious Libel Act, which made it a criminal offence to defame the government of the United States or its officials.

And notwithstanding Lincoln’s famous “lest freedom perish from this earth” war cry, he saw himself as acting within the constitution as he ruthlessly suppressed free speech during the Civil War. Honest Abe even squelched comment on Mary Lincoln’s extravagant use of the public purse for her shopping sprees to New York—while the Union was bleeding itself white.

This extremely limited American idea of the right of free expression did not materially advance until this century, with decisions by two U.S. Supreme Court judges, Oliver Wendell Holmes and Louis Brandeis. They insisted that democratic practice required that the protection of speech must extend far beyond the prior restraint doctrine and rejected the Seditious Libel Act as an unconstitutional error. They crafted some of the greatest judicial language in English to carry their argument. Here is Holmes, in 1919:

… [free speech] is an experiment, as all life is an experiment…. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless… an immediate check is required to save the country….

And here is Brandeis, in 1927:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incident of the evil apprehended is so imminent that it may befall before there is opportunity for free discussion.

These two decisions share an important characteristic of the recent decision by Justice Finch of the B.C. Court of Appeals in the Little Sister’s case.

Little Sister’s is a case challenging the power of Canadian Customs agents to seize, detain, and destroy any books, magazines, films or videos they suspect of being obscene. That is, it is a challenge to the power of Customs to restrain the publication of materials prior to any trial of their criminal nature.

Here is Justice Finch:

Parliament has not prescribed reasonable limits on the expression rights of Canadians by leaving to untrained persons [Customs agents] the task of making the extremely difficult, complex and contextually sensitive decisions as to whether a book, art work, or other form of expression is obscene, a determination charged with constitutional considerations and yet performed in private and in the absence of anything approximately due process. Parliament’s failure to prescribe reasonable limits is, in my view, fatal to any justification of the impugned provisions.

Now, the most important shared characteristic of the decisions of Holmes, Brandeis, and Finch is that they are all in dissent.

Theirs were not the decisions of the ruling majority. In the Little Sister’s case, Justices MacFarlane and Hall formed a majority to reject the appeal of the book store and the B.C. Civil Liberties Association.

All of this is by way of explaining the air of optimism prevailing at the book store and the civil liberties association, even though we have just lost another expensive lawsuit. Holmes and Brandeis did not change American law at a stroke. It took their entire lives on the bench to bring their brother judges around to what all English common law countries now recognize as the fundamentally important nature of democratic expression rights.

We have long known that before we can light a fire we have to strike some sparks, and the Finch dissent is a bright one. He listened patiently to all of the majority’s stuff about how freedom of speech is such a big deal for our neighbour because they had a revolution or something down there in the Excited States of America. “Don’t get carried away with this American free speech craziness, eh?” the majority solemnly warns. Finch, who seems to be acquainted with more than the Time Life book of legal history, patiently notes in his dissent:

The distinctions between the Canadian and American constitutional protection of freedom of expression or free speech and the jurisprudence each country has developed must of course be recognized. However, the fundamental value which the constitutions of both countries protect has the same foundation, namely the history and common law of England.

The great compiler and commentator on the common law was an 18th century English lawyer called Blackstone. Just in case his brother judges have got their Brit history tangled up with their Yank history, Justice Finch pulls up the relevant Blackstone quote:

To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution [of 1688], is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government.

Or sexual morality. Customs agents operate like Olde English licensers of the press, imposing a prior restraint on the material that can be seen by Canadians. They paw through thousands of publications daily. They seize the books of people like Jane Rule, Salmon Rushdie and Oscar Wilde to preserve us from unthinkable naughtiness with maple syrup.

When I was in the Justice Department, I found out that the Attorney General of Canada has been advising Customs for years that they were routinely acting outside the law with their better safe than queer or sorry book burnin’ ways.

What was the gist of Customs’ response? “Hey! Who’s going to know and who’s going to care and, if they do, who’s going to live long enough or have enough money to go the distance with us in court?”

God knows, Little Sister’s and the B.C. Civil Liberties Association aren’t flush with money, but as long as our lawyers will keep accepting empty pop cans and IOUs, we sure care enough to go the distance.

Justice Finch has given us a precious spark to carry forward to the Supreme Court of Canada.