The Supreme Court is about to wrestle with two key anti-speech cases, including one on child pornography. A democracy must not padlock its citizen’s lips, even if the causes are unpopular, say civil-liberties advocates.
Are Canada’s anti-speech laws unconstitutional? Are they irrelevant? Are they fiscally irresponsible? This fall, the Supreme Court of Canada will revisit these questions when it rules on two controversial cases heard earlier this year. Both concern fundamental free speech issues.
The first is the “Little Sister’s versus Big Brother case” which challenges Canada Customs’ power to intercept and turn back books and other media at the border. Together, Little Sister’s Book and Art Emporium, a Vancouver gay and lesbian bookstore, and the B.C. Civil Liberties Association are hoping to have the court overturn Canada’s outdated obscenity law. The judgement will bring to a close a 14 year legal saga.
Lower courts have said that Customs has frequently abused its authority by applying near-Victorian standards of prudery on the subject of gay sex. In doing so, Customs has discriminated against homosexuals under section 15 of the Charter. But lower courts have stopped short of saying that Customs officers lack the authority to intercept material they deem to be obscene or in some other way are in violation of Canada’s anti-speech laws, and it is this point that is now before the Supreme Court.
The Court is being asked to decide whether Customs officers, rather than Canadian courts, should have the power to ban materials they judge to be dangerous to tender and impressionable Canadian minds. In the eyes of many, such provisions are clearly counter to section 2(b) of the Charter. It is this section that guarantees freedom of thought, belief, opinion and expression.
Traditionally, the prior restraint of ideas has been a hallmark of tyrannies, not of genuine democracies. In deciding whether ideas of any kind are to be banned, the burden of proof should never be placed on anyone except the government. In a democratic society, citizens should never have to prove that they are entitled to exercise their free speech rights.
Rather, prior to banning ideas of any kind, the burden of proof should always be on those who believe that such bans serve a compelling public interest.
Despite this, the Court’s record of upholding Canada’s anti-speech laws has been a disturbing one. In previous landmark cases such as Butler and Keegstra the Court has yet to take notice of the fact that attempts to regulate the transmission of ideas will soon become almost completely irrelevant.
With the rise of the internet, Canada’s system of prior restraint has become less and less effective. Today, materials that are stopped at the border are almost always available over the internet with a few clicks of a mouse. And given the vast amount of internet traffic compared to the traditional book trade, a system of prior restraint will inevitably do little more than waste taxpayer dollars. Governments need to recognize the futility of funneling fiscal resources into anti-speech laws.
The second important case that the Court will be deciding this fall is R. v. Sharpe. This is the controversial case in which Vancouver resident Robin Sharpe is challenging the constitutionality of a section of Canada’s broad-ranging child pornography law. Although two lower B.C. courts have agreed that the law as it stands is unconstitutional, the B.C. government has asked the Supreme Court to conclude otherwise. Once again the B.C. Civil Liberties Association is involved, arguing that a vaguely drafted law that leaves enforcement up to the whim of individual police officers should be struck down in favour of legislation that specifically targets material involving the sexual use of real, not imagined, children.
In the past, the most frequent defence offered by the Supreme Court in support of Canada’s capacious anti-free speech laws has been that obscenity and hate speech are low-grade examples of speech. As such, they are supposedly far removed from the social values that free speech is intended to promote. According to the Court, these include “the search for truth, participation in the political process, and individual self-fulfillment”.
But this fails to recognize that it is not the government’s job to decide which types of speech are of greatest importance to its citizens. It also fails to recognize the many benefits that accompany speech of even the most unwelcome kind.
Why does speech—even in its most odious forms—contribute to promoting important social goals? The answer is that such speech motivates us to confront, debate, and act on the values we cherish the most. If governments could wave a magic wand and erase from all libraries and computer banks all manner of hateful and degrading public speech, the occasions for recognizing and confronting those real-life factors that give rise to racism and sexism would be vastly diminished.
In the case of pornography, the existence of obscene materials has prompted much acute reflection on sex roles and stereotyping. In fact, it is no exaggeration to say that much feminist work could not have been made to appear so powerful without the evidence that certain types of obscenity provide about attitudes towards women. Moreover, the existence of such material has helped to prompt and inject a sense of urgency into a debates about sex and sexuality that have been taboo in our culture for too long.
The same is true for hate literature. Denials of the Holocaust have been a great spur to the careful historical documentation of Nazi atrocities. They have also encouraged the pursuit and prosecution of war criminals and the commitment of resources to fight racism and all manner of other prejudices against minorities.
Such evidence gives the lie to the commonly heard idea that obscenity and hate speech silence women and minorities and prevent their participation in the political process. In fact, not one plausible scintilla of social evidence has ever been advanced in favour of this position, and all the evidence is set dead against it—as classical defences of free speech predict.
In contrast, anti-free speech laws do not remove the underlying causes of what is wrong with society. Instead, they eliminate the most effective weapon we have for improving things.
As the English poet John Milton puts it, since the “survey of vice is in this world so necessary to the constituting of human virtue, and the scanning of error to the confirmation of truth, how can we more safely, and with less danger, scoot into the regions of sin and falsity than by reading all manner of tractates and hearing all manner of reason? And this is the benefit which may be had of books promiscuously read”.
But these are not the only issues that the Supreme Court has overlooked in the past. Besides the irrelevance and fiscal waste of anti-speech laws, and the fact that unwelcome speech frequently has surprising and important benefits, there is another powerful argument that has gone unacknowledged.
This is that freedom of expression is a constitutive element in respecting the moral dignity of persons. Censored citizens become mere objects or tools of others’ wills. Their dignity as moral persons is denied, for mere objects or tools have no will of their own. Nor can they be fully-fledged fellow citizens, free and equal among us, for they are denied that condition which is essential to the meaningful exercise of their democratic rights and duties-their autonomous will. This, too, is the mark of tyranny.
These issues will not be disappearing anytime soon. They demonstrate that Canada needs a more sophisticated and mature approach to understanding and respecting fundamental freedoms and to addressing serious social problems. The Little Sister’s and Sharpe cases afford the court a clear opportunity to take important steps toward this goal.
J.S. Russell and A.D. Irvine teach in the Department of Philosophy at the University of British Columbia and are members of the Board of Directors of the B.C. Civil Liberties Association.