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Freedom of expression as a fundamental right

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The Benjamin Franklin case

In the Autumn of 1775, as the United States pondered a military expedition against Québec, the very first printing press in New France began to work in Montréal. It was operated by none other than Benjamin Franklin, and its purpose was, depending on who you asked, the inspiration or the demoralization of the people of what was to become Canada.

From Franklin’s point of view, the work of his press was freedom’s work. He hoped that Canadians would be so receptive to the American political genius in his broadsheets that if there was to be war, the American forces would face either enthusiastic new citizens for the newborn United States or (at least and more realistically) irresolute defenders of an old order. The Governors of New France saw, however, a direct connection between the printing press and the threat posed by the American army. Benjamin Franklin’s words were not just the theoretical or detached musings of an academic; they were harnessed to a political purpose. The first newspaper in Québec was there to make a real difference. A seditious difference if it could.

It is an image at once beguiling and strangely disturbing… the revolutionary Franklin in the Chateau de Ramazay toiling at his simple machine, peering through his disarming granny glasses at a proof of some tract of Jefferson’s. It is hard to be Western and not warm to the imagined spectacle of enlightenment caught in the act of being spread from its centre. And yet… we know that Franklin’s purpose was nothing less than the overthrow of (what was then) the government of a part of our country; and that he did not scruple to join his intellectual effort to the possible use of force. If he had succeeded, there might well have been no Canada and no Canadians.

Once this is grasped, it may be hard to know who or what to cheer for. Should we call for the Press Council or CSIS? Are we facing another cultural identity crisis or a military emergency? Should we regulate Ben Franklin out of business or throw him in jail? Or should we let him have his say… knowing that he is trying, with every bit of the formidable genius that he commands, to destroy Canada in its cradle?

This isn’t a practical problem. The American forces that finally did come were defeated as much by a good old Canadian blizzard as any martial cunning and we were left, for a time, to our old world devices. It remains, however, as unfinished business as far as principle and theory are concerned. As such, its claim upon us is as enduring as our continuing struggle with freedom of expression issues. How should the Franklin case have been handled?

I’m not going to pretend that this is a difficult question to answer. The real problem is in explaining what our answer means. Practically no one reading this will pause long before affirming that the suppression, by government, of opposition newspapers is, whenever and wherever it occurs, a bad thing. As this is written, we are confronted with several such instances in the Central Americas as well as in Africa; and these uses of censorship are abhorred by all Canadians who are even slightly inclined to support civil liberties or human rights. Furthermore, when we reflect upon the fairly recent American experience, in the Fifties, of the national convulsion caused by the investigations of Senator McCarthy, we recognize that even the advocacy of the violent overthrow of the present form of government (as we find in the Marxist writings targeted by the McCarthy Committee) must not be censored. We might be completely opposed to Benjamin Franklin’s project even shocked at this glimpse of his Che Guevara side but willing (to further plagiarize our neighbour’s experience and rhetoric) to defend his “right to say it”.

The puzzle posed for us by the Franklin case is not one that taxes our willingness to judge; what is not clear is why we come so quickly and confidently to the conclusion that even the propagandist of a foreign power ought to be protected from state censorship. Given this island of conviction in the sea of controversy with which the expression issues confront us, I propose to proceed like a cryptographer who has guessed the “plain language” of a word or short phrase of an encoded text.

This is a gamble. If the cryptographer is right, his attempt to break the code may be successful. If he is wrong, a great deal of effort will almost certainly be wasted. If it is indeed true that those of us who “speak the language” of rights and liberties believe with near unanimity that the suppression of opposition newspapers is always wrong, then we may be able to puzzle out what sort of theory of expression rights must be held to support such a result. We can then move from that limited success to test our hypothesis in other settings, on other texts.

Nicaragua: Freedom as the best policy

It may well be that we are struck, when confronted by instances of government suppression of dissent, by the relationship between freedom of the press and political legitimacy. We believe that legitimate government must fulfil two conditions: it must govern with the consent of the governed, and it must govern in the interest of the people rather than in the interest of the government itself. Both of these related conditions of legitimacy seem to be compromised by the suppression of a dissenting press.

First of all, it would appear that the question of the consent of the governed is at least clouded by a policy of censorship. For if government is unwilling to tolerate public expressions of refusal, on the part of some subjects, to approve of its laws or policies, it is unclear that it can maintain a claim to enjoy the consent of the governed. On this view of the matter, it would appear that the tolerance of opposition press is something like a necessary condition of being able to claim that government enjoys the consent of the governed. If there is no forum free enough to register the absence of consent, one might argue that the presence of consent can no longer be fairly claimed. In a way, this is an argument which demands the “falsifiability” of a governmental claim of general consent as a condition for accepting the claim that the consent is in place.

A similar argument applies in the case of the relationship between the legitimacy of a government and its pursuit of the interest of the governed. For, if public expressions of the interests of subjects which are inconsistent with the government’s laws or policies are not permitted, the consonance of the interests of the governed and the government is called into question.

Both of these “legitimacy of government” arguments for freedom of press are quite weak. For it is not always clear that the unwillingness of a government to tolerate a free press is connected to its neglect of the public interest. Nor is it obvious that there is a strong logical connection between the use of censorship to silence the voices of the discontented (not to say the malcontented) and governing without consent. After all, no government can reasonably be expected to satisfy all of its subjects, and the presence of a frustrated, vocal set of critics does not conclusively argue that a general satisfaction does not exist.

Consider, by way of illustration, the present situation in Nicaragua [as in March, 1989 Ed.]. Very many liberal Canadians believe that the Sandinistas who ousted the dictatorial Somoza effected a substantial improvement to the political, physical, and moral circumstances of their countrymen. And those same Canadians as generally believe that the Contras who menace Nicaragua from neighbouring Honduras represent the excrescence of an almost phobic reaction of the United States to Marxism in any and every form and circumstance. Not all Canadians, to be sure, hold this view of the matter, but enough of the group who are likely to be reading this essay do to make the Nicaraguan case an appropriate one for this discussion of expression rights.

At a recent international conference of journalists in Vancouver, it became clear that the Sandinista government was engaged in an aggressive and systematic programme of censorship directed mainly against the opposition newspaper, La Prensa. Now, however we view this fact (that is, no matter whether we view La Prensa as counter-revolutionary or loyalist), it is clear that we would be wrong to suppose that the Sandinista government was without continuing popular support, or that it had abandoned the pursuit of the interest of its subjects.

In fact, we can guess, from long acquaintanceship with the type, how the Sandinista argument for their policy of censorship would run: “Our country is engaged in a struggle for its existence, and it simply cannot afford the luxury of providing a corner of the public platform for the very faction that seeks its destruction. We have been given authority and power by the people to use in their interest, and the general protection and promotion of their interests places an obligation upon us to deny influence to those who would demoralize and mislead them in the critical period of consolidation of the revolution. No one denies that the press is a powerful influence for political change; hence, how can we, in good conscience, give power to those from whom we so recently wrested it at such enormous human cost?”

The last sentence is, of course, the one to focus on. After all, whether or not the Sandinistas were “given authority” or had simply “seized power” is probably among the matters at issue in the publications of La Prensa. But however we judge the merits of those contending cases (which are as archetypical of political dispute as the serialized struggle between Darth Vader and the Princess), how can we confute the argument that it doesn’t make sense to yield in peace what was (so bloodily, recently, and tenuously) won in war?

(I appreciate that, in suggesting that we pass over the merits of the contending cases, I have simply brushed aside a widely held view of expression and other rights as always depending upon someone’s judgment of the deserts of the claimant(s). This is the “free speech for the truth, and due process for the innocent” camp, and it is so considerable that it merits careful treatment in its own right. I propose, however, to get at it indirectly, as an aside or corollary of what concerns me now, which is the consideration of the possibility of a genuinely principled account of rights for expressions as distinct from what might be called respect for propositions.)

So, let us say that we face the Sandinistas, broadly sympathetic to them as a legitimate and progressive government, but disturbed by their willingness to censor the opposition press. How do we persuade them to alter their policy? Do we have an argument that goes beyond counseling them to respect our sentiments as a matter of good policy (good because if they disappoint us we will cut off foreign aid, etc)? Can, for instance, a best policy case be made out for the provision of expression rights for the press, without reference to either divine or first world intervention?

For such a best policy argument for freedom of the press to work for the Sandinistas, we must be able to show that the consequences of providing such a right are intrinsically preferable to the consequences of withholding it. This is a bottom line approach, where it makes sense to regard the bottom line in terms of whether or not Nicaragua and Nicaraguans will be better or worse off; and where better or worse off are, uncontroversially, cashable in terms of happiness and unhappiness. This is an approach to the question of rights and indeed, all moral and political issues that has been very carefully and extensively developed by philosophers as Utilitarianism. As an appendix to this essay, I offer a thumbnail sketch of this theory and its most famous proponent, John Stuart Mill. I hope, however, to proceed now without pausing to generate the technical language that modern Utilitarianism is sometimes thought to require.

The Sandinista case for censorship is one in which very powerful short-run considerations prevail. The task for anyone seeking to dissuade them on a best policy basis, needs to either attack their analysis of the short term benefits, or offer countervailing long term considerations that are sufficient to tip the scales.

Attacking the short term case for censorship of the press by insecure governments is an unattractive job. It seems clear that depriving “the enemy” of secure, institutionalized access to minds and hearts is a big plus. Of course, there will be other opportunities for the enemy leaflets, outlaw radio, samizdat, etc. but these media are almost never as effective in reaching a mass audience as is a legal press. When a government is seeking to consolidate and maintain its rule as the credible and legitimate authority in the state, the ability to (at least largely) silence those who are determined to use all of their ingenuity and rhetorical skill to undermine civic confidence must enjoy a presumptive case as good policy. This is as true in Nicaragua today as it was in New France in the Eighteenth Century.

The only short term consideration that weighs against this view of the matter is the fact that such censorship deprives at least some Nicaraguans of the happiness that attends being free to speak one’s mind, and to this disadvantage must be joined that resulting from all Nicaraguans knowing that they are not completely free to discuss politics in public. (This latter consideration should perhaps be offered as a long term disadvantage, since it is a “steady state” resulting from censorship, but I will let it stand as an indicator of the difficulty of neatly distinguishing short from long-run factors.) I take it to be obvious that neither of these considerations and particularly the first! would (or should) persuade the Sandinistas to regard the short term case as favouring freedom of the press.

The real action in a best policy argument for freedom of the press is in the consideration of long term consequences. There are several such considerations, but I shall concentrate on the two most important: they are, respectively, the wisdom of diffidence argument, and the spiritual aerobics argument.

The long term argument from diffidence depends upon making out a case that human intelligence is notoriously fallible, and that hence the most secure environment for the truth is one in which there is an unrestricted possibility of free and uninhibited expression. Since we can never be certain that we are right about anything but most particularly about matters moral or political it is in the interest of those who want to “have and hold” the truth that the essentially social enterprise of “truth getting and keeping” never be frozen out of deference to a single view of things. And, since possession of the truth is an undoubted advantage in the search for happiness whether individual or communal that nation will (in the longest term) be happiest which puts up with the obvious short term annoyances of tolerance.

The great strength of this argument is that it rests upon two uncontroversial premises; the first being that we have been wrong before and will be wrong again; and the second being that the truth is useful to those in search of happiness. But these premises are not clearly sufficient to support the conclusion that the best policy is the provision of a free press. Firstly, there is the question of the “fortunes of truth” in a censored forum (one frozen in favour of a single view of the truth) as against its fortunes in a free for all forum. That a free for all forum must always, in the longest term, favour the getting and keeping of the truth is far from obvious. For instance, a forum such as Canada’s in which the production of expressions is largely controlled by commercial interests is probably at least as likely to produce a view of the world that is deeply marked by its origins in an appetite for commodities as it is to generate an affection for the truth. By way of example, we may wonder whether or not the truth about human sexuality is more or less likely to emerge and endure in a forum that permits the sale of every form of pornography, or in one in which the most antisocial and misogynist images of violent sex are kept out. Those who can claim to be able to decide this on the basis of the available evidence are, I believe, quite simply wrong.

The spiritual aerobics argument for the long term advantages of protecting freedom of expression rests, as does the wisdom of diffidence argument, upon sound premises. There is, most importantly, the point that if a view of the world is “artificially” or conventionally protected, it loses the vitality needed to direct conduct a vitality which is preserved when it is being regularly exercised in robust conflict with opposing perspectives. And, joined to this basic use it or lose it conception of the truth, is the undeniable claim that there is an important, living connection between expression and thinking, and that the restriction of expression must have, as an unwanted consequence, the restriction of the activity of thinking upon which both the production of new truths and the maintenance of established ones depend.

Again, these sound premises are not clearly sufficient to support the conclusion that the Sandinistas should leave La Prensa alone. Indeed, the application of the “spiritual aerobics” argument for freedom of the press to such a case can be almost bizarre. Are we to seriously contend that an exhausted, beleaguered revolutionary government should permit the expression of the views of their enemies in the service of maintaining a vital conception of the shared vision that made the revolution in the first place? Such a position is simply nuts. And it is nuts because it fails, as a general conception of the conditions that make for the getting and keeping of the truth, to be responsive to those contexts in which immediate and emergent circumstances completely offset it.

But the great weakness of both the argument from diffidence and the argument from considerations of the vitality of the truth (and they are fatal weaknesses in the Nicaraguan setting) lies in their depending, as a condition of being persuasive, upon real human beings being brought to believe, in the midst of the momentous struggles of real life, that they might be wrong in the present and particular circumstances in which they are completely engaged. It is one thing to subscribe to the general, abstract notion that we might be wrong; it is quite another to convince us, in medias res, that Darth Vader and the Empire may have a better claim than us to (at least part of) the truth about morals and politics. And this weakness is thrown into even sharper relief when we remember that the object of the exercise in making these long-run arguments for freedom of expression is to bring real human beings not simply to entertain their conclusions as interesting possibilities, but to act upon them.

It might be argued, against this hortatory weakness of the best policy arguments for freedom of the press, that it is precisely this weakness that emphasizes the notorious short-sightedness of human beings, and underscores the necessity of taking the most deliberate and dispassionate thought if we are to ever win our way through to the best policy where any moral or political issue of real consequence is at stake. Besides, it is surely very strange to urge against any theory that it is deficient, as a theory, because we can predict that it will not meet with popular acceptance. It is, after all, either true or false that the provision of a free press is the best policy for nations. If it is true, the Nicaraguans ought not censor La Prensa; and if it is false, they are correct to do so. Whether or not they, or anyone else, is likely to listen to reason must surely be beside the point of the quality of reason offered.

This response to my position depends, for its force, upon a confusion between circumstances in which the truth is likely (or at least possibly) to be within our grasp, and those other circumstances all too common in a world that seems to have been wrought with scant attention to our needs and purposes in which the truth is available more as a myth to inspire faithful striving. Consider again, in this connection, the proposition: “it is either true or false that the provision of a free press is the best policy for nations”. This proposition bears an uncomfortable resemblance to the proposition: “it is either true or false that the world had a beginning”: that is, it reminds us of other questions that can have, at least in principle, real answers, but which, as a matter of practical limitation of information or human cleverness or whatever, are at least presently imponderable. And, more pointedly, the free press proposition resembles the proposition: “it is either true or false that Wittgenstein was a happy man”.

Now, it is true that Wittgenstein quite in opposition to most of what we know about him would lead us to believe said to his housekeeper, shortly before his death, that she should “tell them that I was happy”. But such judgments must be admitted to have such a large subjective component to them, that it is far from clear that we can practically, as opposed to ideally, think of them in terms of truth and falsehood. And when we consider that best policy arguments usually depend upon correctly answering questions about relative amounts of human happiness most often in long term settings where we must guess at what will make people happy in a future we can only imperfectly know we must own to some doubt concerning the answerability of at least some best policy questions. Significantly, such doubt must be admitted in virtually all of the circumstances in which the calculation of long run consequences is an essential element of settling moral and political disagreement concerning the best course of action.

All of which underscores the fundamental importance, in matters moral and political, of commitment in the face of uncertainty. And it brings us to the heart of this part of my argument. Those who govern in Nicaragua have joined with one another in a commitment to oust Somoza and try a form of nationalist Marxism. This is the sort of concerted human activity that is made possible only by a willingness to choose and act together in the teeth of uncertainty. For who can know that the results of this choice will be preferable to those that would flow from a choice to continue to bear the conditions of life under the dictator? The future of the people of Nicaragua under Somoza is like their future under the Sandinistas in at least one respect: neither admits of demonstration. Choosing revolt or quiescence is, therefore, like choosing to marry X or Y. Nothing is certain about the felicity that will result (or be staunched) as a consequence of living such a choice… except that no choice is likely to yield its optimal results unless it is given a wholehearted personal best effort. And, most significantly, that very best effort will be of the first importance when the sought after goal is in doubt.

This is not to say that either political or moral commitment is, properly, joined without or against calculation. Behaviour uninformed by intelligence is simply reflex or habit; and neither of these are models of moral action. But after intelligence has provided us with the best calculations, prognostications, and prophecies concerning our chances for future happiness, it must also, if it is competent, provide us with the caveat that some of the most important elements of the future are the subject for informed guesses rather than certitude, and that our momentous choices must always be made against the background realization that their issue is in doubt. Indeed, that is one of the most significant factors in our experience of them as momentous.

In a way, this is simply carrying the wisdom of diffidence argument to its practical as well as logical conclusion; but it is a conclusion too seldom recognized by best policy theorists. Its deep significance is only felt when we imagine confronting those who govern in Nicaragua with our long run arguments for the provision of a free press. For when we approach those persons, who feel the weight of responsibility for the fate of their countrymen at every moment, and who bear every present difficulty because they are faithful to a shared commitment to a future that must be created rather than waited for, we must remember that they have had fresh experience of imagining the relationship between their choices and their fate. We have our informed guesses to offer them concerning the relationship between the provision of a free press and the long run happiness of Nicaraguans. Should they accept our calculations as persuasive? Should they commit themselves to a fresh, or at least modified, vision of their task together? It would take, I think, a remarkable degree of moral hubris not to say a kind of blindness to the character of real political life in general to regard them as resting under either an intellectual or moral obligation to find our case persuasive.

We have no right to feel superior to the Sandinistas if they reject our best policy argument for the protection of expression rights. They may even accept our claim that as a general rule, the long term interests of nations are best served by tolerating opposition media. But such an acceptance would not logically commit them to foregoing efforts to help the long run along by making whatever responsible short term choices they can. Indeed, to believe otherwise must be grounded not in a commitment to the place of reason in politics, but to scepticism concerning its power to make a positive contribution. If the Sandinistas calculate that the toleration of La Prensa will make, in the short run, the preservation of Nicaraguan civility substantially more difficult, it is hardly against reason for them to try to preserve civility as one of the fundamental conditions for the hoped for (by them as well as us) possibility of eventually providing a free for all forum.

It is often urged, in this connection, that the choice to attend to short run considerations is joined to a tendency to forget or neglect long run realities and interests. As an empirical observation, this may well have some merit; but since there is no demonstrable logical connection between attending to the short run and neglecting the long view of things, we cannot argue for a duty to sacrifice clear short run benefits in order to possibly preserve advantages that can only (possibly) come to fruit in the fullness of time. It is one thing to accept the view that it is wrong to use torture in order to obtain information from suspected criminals, and appropriate to give institutional expression to that view in constitutional and statute law governing policy. It is quite another to hold to that policy when faced with a situation in which one has a credible chance of learning where the prisoner has hidden the hydrogen time bomb. Making out a long term case for ruling out the torture of such a prisoner must depend upon a calculation that the consequences of using torture in even one truly extraordinary circumstance will be at least as bad and certain as the consequences of failing to find a hydrogen bomb before it goes off downtown. This is a tough argument to make on the basis of a calculation of the public interest.

That we find our case for a free press in Nicaragua persuasive or, at least, remain convinced of the need to persuade the Sandinistas to forego their suppression of La Prensa simply cannot be explained by turning to the calculation of public benefits that could reasonably be expected to flow from such a choice on the part of those responsible for governing there. And if I am right in claiming this, then it must be the case that if there is a legitimate case to be made out for the expression rights as fundamental, it must be based on considerations other than a set of calculations of benefits and costs. Indeed, the very language of rights suggests that they are less the product of calculation than the expression of conviction; that they come less from the head than the heart. Freedom of expression seems less a matter of freedom as the best policy than freedom no matter what. Freedom no matter what sounds uncomfortably irrational, but I do not know what other formulation of our commitment to the expression rights can do justice to our conviction that Ben Franklin and La Prensa should not be censored by those who have most to lose by tolerating them. In any case, this is clearly the direction that our effort to decode the language of rights is leading us in, and some may be willing to abandon our enterprise right here. I propose, however, to press on, comforted by the reflection that just because a conviction is not conclusively supported by reason doesn’t necessarily mean that it is against reason as well.

Freedom no matter what

I remember a very old version of the Robin Hood legend that I saw at my neighbourhood theatre in the early 1950s. Good King Richard had returned from the Crusades, and it was time for a day of reckoning with the evil usurper John and his minions… and, in a different sense, it was time for a reckoning with the dogged and imaginative loyalists who had held out in Sherwood Forest. It was time for a “good news and bad news” session for Richard. The dramatic point of this particular film was, however, that Richard doesn’t get the news. John guards access to the King’s ear, and the Sheriff of Nottingham is opening the mail from the Forest. The consequence of this is that although Richard is King in name and right, John still rules in England. The Merry Men must remain outside Richard’s affection and the law; the tax collectors are still squeezing the crofters; the truth isn’t getting through. By becoming Richard’s censor, John becomes his regent. It all ends happily, of course, when Robin and the adaptable Maid Marion resort to the disguise of balladeers, and gain an audience with the court as mere entertainers. She gets their attention with a set of arresting dance moves, and he sings a mean song that enlightens the King and saves the Kingdom.

It was a good guys and bad guys show for children; but it had an important element of suspense. We squirmed in our seats waiting for Richard to become himself to really be King again. And this time it wasn’t a royal kiss that was needed to work the transformation, but that old media magic of “the other side of the story”. Richard is not fully restored to his throne, and he is not genuinely sovereign, as long as anyone can prevent him from gaining possession of any information relevant to his function as ruler. And no one but himself, finally, can judge the relevance of any information to his regal role. As long as John is deciding what merits Richard’s attention, he is ruling the Kingdom by ruling Richard’s mind. In fact, the more one thinks about this, the more clearly one sees that the right to hear, so to speak, is an essential part of being sovereign. Moreover, it is important to remember that even the most important news good and bad can take surprising forms. Even if the Sheriff burns the letter to the editor, the work may be done with a song and dance.

Richard has a job to do as King, and he simply can’t do it justice if he is censored. John’s interference goes, quite intentionally, to the heart of the political situation in England. To put this another way, drawing what I think is a vital moral in the process, Richard has a right to an uncensored view of his world and this right is firmly grounded in his role or function in England. This right is fundamental in that he cannot lose it without his sovereignty being fundamentally compromised, as it was in the old film. To be King, Ruler, or Sovereign in name is one thing; but being Sovereign in fact can be quite another. The point of our Robin Hood story is that at least one of the constitutive rights of a real sovereign is to be uncensored.

This is an ancient insight about the relationship between having a job and having the tools to do it with; about having a right to the means by which you can do your duty. As with much else in our tradition, Plato recognized it first in his dialogue, Republic. Plato drew a sharp and deep line between rulers and subjects, and made it clear that the government of the minds of those fit only to be ruled should be as complete as was necessary to ensure their ready and complete obedience to the ruling Philosopher Kings. There was to be a systematic censorship in the ideal Republic, orchestrated by the public-minded rulers to control the more narrow-minded and impulsive subjects. But there was, of course, to be absolutely no censorship of the rulers, for if they stood in need of the wisdom to control themselves or judge for themselves (pretty much the same thing as far as Plato was concerned… and probably for us as well) then they would never have been chosen as Philosopher Kings to begin with. As for “who shall guard the guardians?”, the Greeks had a one word answer ready: character.

Plato, of course, had nothing to say about “rights”. For the Greeks, it was enough to reflect that people are fundamentally different from one another; that the talent for being spirited, or wise, or virtuous was not evenly distributed; that nothing was so essential to the happiness of everyone in any state as the quality of the deliberations that directed or ruled it. From that point, it was simply a matter of doing what was “fitting” or as we would put it, what was logical. Find the best among us and place the authority to rule in their hands alone. The Philosopher Kings would have had no need of a special set of linguistic conventions in order to claim what was intrinsic to the conception of Plato’s Republic. Their “expression rights” were hidden, as it were, in the very syntax of the ideal state.

The account of the expression rights that is implicit in Republic is, therefore, one in which the expression rights are not so much discovered in some feature of human nature as they are in the nature of our social function or political role. If they flow from any human nature at all, it is from our artificial and conventional second nature the one that Plato’s pupil, Aristotle, was thinking about when he described us as “the political animal”. And it is a tradition that locates the mind (or the soul, or the cognitive capacity, or whatever other term is currently used for the activity of deliberation) at the centre of the political enterprise. If any society is going to be enduringly happy, it had better be controlled, directed, ruled by those within it who are most distinguished by their judgment. The belly and the heart have, to be sure, essential parts to play as well, but they can never usurp the ruling role of the deliberative faculty if either an individual or community is to win and keep happiness.

Richard’s mind stands at the centre of the Robin Hood drama. Robbed of some of its essential power, deprived of an essential part of the story, its right to information obstructed, it is the star of a modest morality play about ruling and knowing, and about the relationship between knowing and expression. John’s attack on the Richard’s ability to effectively deliberate was an attack on England’s ability to see and know the world it must act in.

Who rules in Canada? What mind or minds stand at the centre of our political drama? Where, for us, are the lessons of Plato and King Richard to be properly applied?

This question can perhaps best be answered by raising yet another question, only to set it aside. This is the question that all of what is called political philosophy (as distinguished from political science) is concerned with: What is the best form of government? I claim a right to set aside this fundamental problem, because no matter what the wisdom or the folly of the answer provided for it by the people of Canada, they have indeed committed themselves (or, more accurately and pointedly, we have committed ourselves) to a definite answer. This answer is, of course, that the best form of government is self-government or, as it is generally called, democracy. Many interesting questions can be asked about this answer. Why did the Canadian people why did we thus answer the central normative question confronting human beings setting up to live in community? Was it the drift of history? Were we attracted by the general utility we conceived of attaining? Did we think it the only form of government consistent with full human dignity? Was it simply the political expression of the emergence of certain relations of production? Was there a religious inspiration that made a legislated equality a duty?

All of these are real questions; that is, they are intellectually respectable questions that admit of plausible answers. In some cases, they may even admit of true answers. I, like my readers, have my hunches. I insist, however, that we make a self-conscious effort to forego indulging them here. I propose to set aside all of these interesting matters so that we can cement our attention to the central significance of the fact that an answer has been provided and a commitment entered into. As in the previous section of this essay, I continue to insist that commitment has a specific character and moral significance that sets it apart from whatever reasons or motives inform it. Democratic life, like war or parenthood, has a logic that may be only contingently related to the forces or rationales that moved its recruits. Once in, the more important question may not be how you got there, but what being there means. The democratic commitment deserves attention in its own right. What have we gotten ourselves into?

There is, first and most clearly of all, the matter of sovereignty. How do we respond to the alien’s request: take me to your leader, when by leader it means ultimate ruling authority? We might be tempted to head for Ottawa, but an astute alien would be quick to detect the merely representational or executive character of the authority wielded by the legislators and officials they found there. “Why are they so worried about the electorate?” We might be tricked by a view of the electorate as a set of spoiled subjects who dare to nag their masters. But a more penetrating political observer would almost certainly guess our secret. The sovereign is the electorate is the people… even if the sovereign people are unevenly aware of either their role or its significance. I dwell on this matter of the citizen as the sovereign ruler not only because it is a central feature of the argument I am developing, but also because I am convinced that a kind of spiritual amnesia deprives at least some of us of the ability to remember who we are constantly reminded of being. It would, perhaps, really take the unjaded eye of a political tourist to see it freshly and steadily, but the citizens of Canada are not ruled by their municipal councils, legislative assemblies, or by Parliament. These are but among the instruments that we use in the governing of ourselves. The democratic commitment is, then, a commitment to self-government; it is a commitment to government by the sovereign people. What is more, it is one of the few genuine certainties in the moral and political lives of Canadians. However fractious, divisive, and rancorous our disagreement over Meech Lake, Free Trade, Language Rights, Judicial Review, Nuclear Submarines, or Senate Reform, there is no substantial body of Canadians that questions our commitment to being a democracy.

Now it is time to marry the two essential elements of my argument for a “no matter what” conception of the expression rights. The point of the Robin Hood story was to establish the relationship between intellectual freedom, the expression rights, and the task of governance. Richard has to be uncensored if he is to be genuinely, as opposed to merely nominally, sovereign. To be uncensored is one of the constitutive rights of a sovereign. And the point of emphasizing our commitment to democracy was to make us thoroughly self-conscious about our determination to reserve, for ourselves, the sovereign role in our system of government. Bringing these two elements together yields an altogether unsurprising result: the citizens of a democracy form a kind of collegial sovereign, and they cannot tolerate a censorship without compromising a right which is constitutive of their ruling function. Canadians claim a fundamental right to freedom of conscience and expression not because that freedom is pleasant or contingently useful for any subordinate purposes; it is because they must govern that the minds and expressions of citizens must be protected rather than limited by our laws. Our commitment to the protection of expression rights has a “no matter what” character because it is actually a corollary of our commitment (“no matter what”) to being a real democracy.

There is an asymmetry between the case for the expression rights of King Richard and those of a democratic people. The ruling function is concentrated in Richard, and it might be urged that because of this his regal claim for expression rights as compared with that of a democratic sovereign is concentrated or enhanced as well. On this view of things, we are reminded that the democratic commitment does not guarantee the participation of the people in the ruling function; it merely establishes it as a formal possibility. Many, if not most, of a so-called democratic people may decline to take any effective part in public life. Indeed, many may choose to not even exercise their right to vote. Perhaps this characteristic of democracy ought be reflected in a decrease in the importance we attach to the forum, and to a less than fundamental commitment to the expression rights in Canada.

There are three errors in such a position. First of all, the quiescence of a part of the citizenry does not conclusively argue their withdrawal from participation in public affairs; it may simply be evidence of their general satisfaction. Secondly, the decision to move from quiescence to one or more of the many forms of participation in governance that are open to a free people may well depend upon their judgment of the nation’s business that they draw from its forum. Even an absolute monarch may “coast” unless or until he is bestirred by information that calls out for the exercise of his authority. And finally, a people are not drawn into the lived experience of their full identity as sovereign unless the constitutive conditions of that situation are available to them. The realization of democracy is always at issue, and there is always the danger that the project may fail; it can only be made less likely to succeed by diffusing our commitment to it.

This is an appropriate point at which to pause and reconsider the Benjamin Franklin case, and our related conviction that the Sandinistas should tolerate the opposition press in their country. The fact that best-policy arguments for freedom of the press are not demonstrative, that they do not make tolerance an intellectual and moral duty even for those who completely appreciate their force, did not alter our conviction that opposition media should be permitted. And we should be able to see, at this juncture in our discussion, that the reason for the resilience of our “no matter what” conviction concerning the freedom of the press was that it flowed from the vitality of our conviction that democracy is the only form of government that can claim real legitimacy. We have committed ourselves to this course in Canada, and we evidently believe that all other nations should join us in it. We particularly wish that those nations with which we feel we have a community of purpose and sensibility would also share our vision of the citizen as sovereign.

I offer two reflections in this connection: one with confidence, and the other more diffidently. Firstly, freedom of the press is a right that stands squarely at the centre of our democratic regard for the integrity of the deliberative function of the sovereign citizenry. Criticism of the government, even to the point of questioning its right to continue to govern, must be able to claim the protection of the forum of any genuine democracy. Secondly, and I think significantly, we may be less certain that other nations should join us in protecting an opposition press when we reflect that what we are really certain about is that they should immediately undertake to constitute themselves as a full-fledged democracy. There may be, as even such champions of freedom as Rousseau and John Stuart Mill admitted, states of civility imperfectly consolidated to offer good soil for the cultivation of such a difficult flower.

The commitment to democracy entails the rejection of censorship. This seems clear enough; but our difficulties with expression rights as fundamental do not disappear with the firm understanding of this central feature of the democratic project. Indeed, they reappear with an urgency that is, if possible, more painful and bewildering than before we lost our innocence concerning the implications of our commitment to reserve the ultimate political authority in Canada for its citizens.

Must we protect any and all expressions if we are to be consistently democratic? What about state secrets and the laws that forbid the disclosure of them to our own citizens? What about those criminal statutes forbidding expressions that incite criminal activity? What about false advertising? What about libel and slander and blasphemy and contempt of court and hate propaganda? When we bring to mind all of the statutory and regulatory restrictions on expression that are embedded in our laws and institutions of governance most of which most of us regard as sensible if not vital protections of the civility of our society we seem to be in such a bad case as democrats that one is tempted to throw up all attempts at theory and return to the practical affairs of political life with a pragmatic shrug. A pox on ideologues and extremists! If democracy is simply inconsistent with the imposition of any restrictions upon expression, it is best set aside as yet another utopian vision framed without regard for what real human beings are and need. Back to common sense!

But it isn’t, I want to urge immediately and emphatically, as bad as it looks. Not nearly. In fact, I would insist that a closer look at our democracy reveals that the philosophical basis of Canadian Law is really fairly sound. We are not bad democrats, or pretend democrats, or even only almost democrats. There are, to be sure, some real problems and some real inconsistencies. On balance, however, they are marginal rather than fundamental. We need to take more thought.

Commitment and calculation

The rights that constitute sovereignty do not change if the sovereign is one, many, or all. The logic of political life is, however, certainly more likely to be obscured by the facts of political life in a democracy, where rulers and subjects are the same people. It is predictable, if not inevitable, that as we concentrate on the people as sovereign, we can lose sight of their other role as the subjects of their own rule.

To oversimplify first: if there is a trick to the resolution of the paradox of a democratic people who must at once abjure censorship and admit some limitations on the freedom of expression, it lies in fixing appropriate attention on the ambiguous role of citizens as both rulers and subjects. To oversimplify further, while our expression rights as sovereign must be protected because of our democratic commitment, there exist several types or classes of our expressions as subjects that can be appropriately submitted to limits that are defined by best policy considerations. That is, there is a core of expression rights that are protected by our commitment to self-government, and which are practically absolute; and there is a subsidiary range of expressions which are protected as well, but protected because we calculate that to do so would be the best policy to follow rather than because they can make a plausible claim to be part of the democratic forum. And, just as they are usually protected on policy grounds, they may be limited on policy grounds as well.

Now, to unsimplify….

We are, all of us, as citizens of Canada, both the rulers of our country and its subjects. How can we make workable sense of this democratic self which at once and always walks with kings and turns a docile ear to its masters’ voice? As ever, Plato was first with the relevant metaphors even though he had quite other fish to fry than the resolution of democracy’s puzzles. From Plato we get not only an account of the state divided between the very few rulers and the very many subjects, but a corresponding account of the individual soul of every person divided between a ruling head and a subject belly (with a role in-between for a sort of General Patton/Sam Weller heart). Each of these divisions or faculties of the soul has a respective virtue to match its characteristic inclination: wisdom in the case of the head, loyal courage in the case of the heart, and cheerful obedience in the case of the belly. The heart and the belly (or the passions as we moderns would lump them) both have essential contributions to make to community, but Plato’s central argument for specialization was that those contributions could never properly be a part of what he called the ruling function. Only reason can rule or direct a life that aspires to happiness, whether it be individual or communal. The passions have their place as well, but it is not in the cockpit. In the absence of a reigning wisdom, the impulsive, reckless, and unbounded clamorings of the other human forces available will always push us in the direction of our natural fate the one that Hobbes was to make notorious in his portrayal of that state of nature in which life shall be “solitary, poor, nasty, brutish, and short”. Our civilized and political fate depends, Plato insisted, upon our recognizing and institutionalizing the deliberative faculty as sovereign in both our individual and social lives. We must rule with our heads (“and only the very few best ones, if you please” Plato’s shade persists), while the passions must be made to listen to reason.

However unconvinced we are by Plato’s elitist advocacy of rule by the wisest among us, it is hard to resist his attack on the notion of the sovereign as the man of action, and his offering of the man of thought as the only appropriate replacement. There have been, to be sure, plenty of attacks on this look before you leap recipe for happiness, but they are in their principal embodiments as Anarchism or Communism really attacks on the view that there either needs to be or ought to be any sovereign authority whatsoever. For the rest of us, however, Plato’s identification of the deliberative function as the pre-eminent one in the life of the thinking, judging, and leading sovereign has swept the field of serious contestants.

Unable to refute Plato’s contention that only reason can reasonably rule, and unwilling to accept his prejudice that only a few can be looked to for the requisite deliberative talent, democrats move a vital political dividing line. Plato located that line “in the world” so to speak, and it divided the very few fit to rule from the very many fit only to be ruled the very few wise, and the very many rest of us. Democrats take this line out of the world, where it is obnoxious to them, and place it within the soul of every citizen, where it hopefully ennobles. Thus, we are to be ruled not by the best among all of us, but by the best within each of us. As democrats, we join as colleagues in an enterprise to which each of us is to bring a self-disciplined contribution.

(That simple phrase: “self-disciplined contribution”, holds within it both the promise and tragedy of the democratic epoch. For all too many, the news that they are free brings the dawn of a misunderstanding that might well prove to be fatal to the still unproven experiment of self-government. We are not free to bring a self-absorbed, self-interested, and self-indulgent “contribution” to the collegial task of governance; and to believe so is to confuse “being free to govern” with “being let loose to do what we feel like”. That was never and can never be the idea; and to the extent that our educational system continues to fail to discover its central mission in the preparation of the minds of its citizens to get and serve the idea of democracy, the retention of our freedom will depend on our luck holding out. But this is a matter for another essay.)

It is, when all of this is brought to self-consciousness, a relief to remember that the commitment to democracy is not on the table for renegotiation. As the proverb goes: “if we had known what we were getting into, we wouldn’t have had the wisdom to do it”. The commitment to democracy (again like parenthood) may bear only the faintest resemblance to the reasons or motives that brought its soldiers into the recruiting hall. Indeed, and as I have indicated above, some considerable portion of us seem still to think that the object of the exercise is a grander version of “joining up and seeing the world”. But I shall not pause long over Pluralism and its variants, such as Libertarianism. Plato would not have been surprised to have seen one of the inevitable corruptions of democracy given a clean shirt and brought into decent company as a fit companion for sound minds. He predicted it. Still, it is necessary to point out, at the risk of spoiling the party, that a conception of government as the paid referee of an endless tournament of consumer muscle is a cruel joke. That it could ever be taken seriously as a guide to civic action, rather than just another cautionary description of the antics of the damned, is a tribute to both the capacity of high technology to rip wealth out of the crust of the earth and our pathetic willingness to climb into bed with our flatterers.

But I am going to resist the tendency to go slumming. We stand more in need of a map of the cathedral than a painting of the brothel, and this is an essay for the spirit’s Sunday. According or recognizing freedom of expression as a fundamental right is relatively easy in Plato’s Republic or Richard’s England. One simply locates the very small group of Philosopher Kings in the one circumstance, or the head under the crown in the other. When the ruling function is exclusively limited to a single person, or a sharply delimited class, bestowing the prize is no more difficult than acquiring an up-to-date programme of the political players. As for the subjects, a ruler giveth and a ruler taketh away tolerance of expressions as a matter of policy which falls completely within his or their range of authoritative competence. This elegant expedient is not a possibility in a democracy, where every citizen appears before us in a dual aspect as both sovereign and subject. How do we at once preserve and protect the uninhibited forum which is the public embodiment of the life of the collegial citizenry, while protecting ourselves from at least some of the most harmful expressions that emanate from the merely private and subject? If we are to let opposition newspapers in, how are we to keep false and malicious defamation out?

The answer to this question lies, I believe, in concentrating on the function and role of the democratic forum as an instrument of governance, and shifting our discriminative attention from the identity of the sovereign to the character of the sovereign’s agenda. Such a move has two virtues. First of all, it makes for good theory; that is, it is a discriminative project that can be made to cohere with our principled and systematic account of the expression rights without a lot of squeezing or cutting and pasting. Secondly, it is simply a variant of what we are already doing in the area of expression rights, which is to concentrate on the speech rather than the speaker. So I am proposing a refinement of, rather than a revolution in, our well-established method of dealing with this set of issues. The novelty rests only in the story about our settled democratic purpose that I claim must always inform the enterprise.

Consider, as illustrative instances of what I propose, the following two expressions. The first is the claim made by an atheist in West Germany that the Catholic Church ranked “among the world’s biggest criminal organizations”. She was convicted of blasphemy and fined the equivalent of 20 days of her earnings as an antique dealer. Her lawyer quoted her claim in a public lecture and was charged with blasphemy as well. Two students at the University of Aachen who publicly defended her were also charged, but their prosecution was stayed (Maclean’s, December 26, 1988, p. 59)

The second expression is an accusation, made in a speech at the local Parent Teacher Association, that Mr. Dakin, the Gym teacher, has been inflating the grades of those grade nine students who submitted to his sexual advances. Dakin is immediately suspended by the School Board, but a police investigation reveals that the accusation was grounded in nothing more than the vindictiveness of the parent’s child, who had been cut from the basketball team because of her poor grade point average. The teacher files a civil action against the parent, suing for damages.

Both of these cases involve the participation of the state in the limitation of expression. In the first, a criminal prosecution is undertaken, and the state moves directly and aggressively to prohibit blasphemous speech. In the second, the state provides the civil courts within which individual citizens can submit their torts for adjudication by government-appointed and authorized judges. As the state allows civil actions based on allegations of damage caused by expressions, it lends itself, so to speak, to the limitation of certain classes or types of expression.

Now, just as I was willing to guess about the prejudices of my readers in connection with freedom of the press, I am willing to wager that most people reading this essay would judge that Mr. Dakin’s libel action merits the consideration of our courts, and that the West Germans should get busy and repeal their 1861 law against blasphemy. That is, we think that the admittedly intemperate and probably silly expressions of the atheist should be given the protection of a democratic forum, while the accusations of the parent should not.

This can be puzzling unless we think about it from the point of view of the agenda of the sovereign citizenry. That agenda is concerned with the ruling of Canada (or British Columbia, or the Municipality of Vancouver, or whatever other junior jurisdiction we vote in). It is, to put it baldly, concerned with policy rather than specific persons, and with general considerations rather than individual facts. This is not to say that the state has no interest in expressions concerning the conduct of individual persons. Very little is beneath the notice of the tireless officials who execute the sovereign’s will, once it has been given expression as law. But whether or not Mr. Dakin, who resides at 36 Drone Avenue, is “interfering” with his students is a matter for the investigation of the police rather than the direct attention of the ruling assembly; indeed, the police were naturally and appropriately called in by the School Board in the aftermath of the speech. On the other hand, Mr. Dakin’s reputation is of enormous importance to him, his wife and children, and his colleagues at the school. To put this another way, the character and frequency of child molestation has an obvious place on the agenda of the ruler. Important policy decisions could very possibly flow from the consideration of such social facts. But the case of an individual private person does not belong on the public agenda, while it not only belongs, but spreads to the very edge of the page of the agenda of the person centrally concerned.

(It may be asked whether the private character of Dakin’s case should exclude it from publicity if the police decide to lay a charge, and the matter comes to court. This raises a fresh set of issues which are connected with the long-established maintenance of an open administration of justice by a democratic people. Here the question is not one of bringing the case of an individual person to the notice of the sovereign assembly, but the possibility of public scrutiny of the manner in which the police and judiciary use the authority vested in them by the people. Here we judge that the ability of the citizenry to superintend the administration of justice is of greater importance than the privacy of persons who may well turn out to be innocent although in the case of minors, we surrender to the concern for the privacy of even the officially charged, tried, and convicted. These are all policy decisions, made in the light of our farthest-seeing efforts to calculate and provide for the public interest.)

It is appropriate to provide the possibility of a civil remedy to Dakin, because his personal concern with the PTA speech is difficult to exaggerate, while the deliberative and legislative concern of the sovereign (the raison d’êStre of the protections of a democratic forum) is with the issue and problem of the protection of our young, rather than with any particular person residing at 36 Drone Avenue. Individual and private persons can seek a remedy from expressions that damage them because their case doesn’t belong on the agenda of the ruling authority. Thus, we can risk the inhibition of the form of speech that is the matter of a libel action, because it is private or subject expression rather than public expression.

The case is quite other in the instance of the blasphemy prosecutions in Germany. Religion and politics are often linked as topics capable of arousing strong feelings; and the reason for this is clear they are both directly and centrally concerned with the final questions about the human enterprise. They belong on the public agenda because they are centred upon the “who are we and what should we do” issues that so preoccupy the deliberations of any sovereign that they might almost be said to characterize all of them. Thus, even though we might be inclined to have little more respect for the intemperate atheist than we have for the carelessly accusative parent, we recognize blasphemy as the kind of expression that cannot be limited by the state without inhibiting the discussion of matters that have a clear claim to inclusion on the ruling agenda. It is important to notice, in this connection, that the claim that the Catholic Church is one of the world’s biggest criminal organizations quite possibly does more aggregate harm to real people than befalls even an innocent Mr. Dakin. Lots and lots of upset Christians may make for more total pain and suffering than one extremely upset Gym teacher could contain. That calculation, however, is not to the point, given a “freedom no matter what” conviction about the protection of the integrity of the forum of a ruling people.

Which brings us to the reason for our consideration of these two expressions. They are to be handled differently not because we calculate the long term consequences of limiting them differently, but rather because the public and political significance of the accusations of the blasphemer place them within that class of expressions which our democratic commitment ought to protect out of consideration of fundamental rights. It is in the case of the accusation of the parent that calculation of public interest is appropriate; and we can, I believe, make out a good case for civil law which provides a remedy to private persons who can prove that they have been personally harmed by the publication of a falsehood that attacks them specifically. I phrase this claim carefully, because I would insist that quite a different set of considerations should be brought to the libel plaintiff who is a public figure, or who claims to have suffered damage because of published expressions that impugn a class or race of persons to which they belong. I am loath to clutter up this discussion with the full range of qualifications and caveats that an experienced civil libertarian brings to the discussion of the tort and crime of libel. But I am at least reminded of the importance of guarding against a possible misinterpretation of a theory of the expression rights which distinguishes between calculated and committed protection of speech.

To say that private or subject expressions do not have a claim to the fundamental protections of the forum of a democratic people is not to say that they should not be protected. Indeed, long term best policy considerations especially those of a democratic community militate in quite the opposite direction. We should not forget, as we set about our plan of fixing our discriminative attention on expressions rather than people, that the people are still there, and still human. A government could hardly bustle about, controlling, limiting, prohibiting, and punishing private speech without grievously wounding the general atmosphere of tolerance that sustains a robust democratic forum. Some very exceptional circumstances may permit, on best policy calculations, the judicious limitation of some few, specific, and extravagantly harmful classes of expression. But real people need a clear sense of public purpose to live by. We cannot speak, think, and live freely if we are constantly in the precincts of legal battle over expressions. Besides, it would be wrong to take the possibly helpful metaphor of an agenda so literally as to think that living up to our commitment to the democratic forum could be satisfied by simply throwing the protective mantle of our constitution over the “pure” discussion of affairs of state. A democratic forum is the public embodiment of the mind of a sovereign people; and, as such, it must be permitted to have a real life, as opposed to a sterile, prefigured idea of a life.

The real lives of both individual and collegial minds are not a sequence of serially emerging propositions. The lives of real minds are, rather, a largely unformed, unfocused, and uneventful business. There are, to be sure, some real occasions: it was then that I decided to marry her; it was then that we realized that we were all wrong about whales; that was when the idea of a bridge occurred to us. But the occasions upon which the sought-after (by some, at least sometimes) product of thought appears are not to be confused with the life of ruminative, playful, idly curious, gossipy, and generally fruitless musing that forms the substantial background of all mental life, be it individual or collegial. We cannot provide for the real life of a real democratic sovereign without providing for the conditions that make for actual vitality as opposed to mere theoretical existence.

Beyond the policy considerations that are specific to a committed democracy, there remains the general utilitarian argument for the provision of freedom of expression on long-run best policy considerations. This line, which we found to be unequal to the task of persuading an embattled government to provide freedom for an opposition press, is very powerful when it informs a policy-making task that is unstructured by the demands of commitment. Having settled the issue of the democratic protection of expressions that have a possible relevance to matters of public significance, we turn to the question of what to do about all of the rest which is undoubtedly the greatest portion of human expression. It is hard to imagine a rational substitute for concentrating on the calculation of public interest as the relevant bottom-line for sensible and practical policy-makers in this area. All of our earlier arguments against such calculations on the grounds that they can never be demonstrative or conclusive still stand; but they have very little force when the best policy case is not confronting a no matter what social commitment to a moral or political project such as democracy.

The distinction between public and private expression that is rooted in the concept of the sovereign’s agenda does not generate neat or exclusive categories. Between the paradigmatically public an address by the Prime Minister to the citizenry, and the paradigmatically private an advertisement for a brand of cigarettes, rests most of the contents of both public libraries and galleries of art. When civil libertarians consider the problems posed by pornography, for instance, they confront a class of expressions that fall squarely between the stools of public and private. How does a general theory of the expression rights which has a fundamental distinction between types of expression as its cornerstone, deal with the fact that most expressions that are a source of controversy in this area do not fall decisively on either side of the private/public fence?

The answer to this question is, I believe, with the happy realization that a “double-minded” theory of the expression rights one that finds a role for both commitment and calculation, brings a double-barreled form of support to the case for the toleration of controversial expressions that are neither clearly public nor private. Proponents of a no matter what strain of absolutism have held, for instance, that since how we are to use our sexuality is an enduring issue for the sovereign, we must not censor obscenity even when it is obvious that the motives of both its producers and consumers have sources very far removed from the consideration of affairs of state. When Utilitarian civil libertarians have confronted the same issue, they have argued that the general interest of a community in tolerating pornography outweighs whatever advantage can be offered as a consequence of prohibiting it. These arguments are mutually supportive.

There is a serious objection to my no matter what account of the fundamental right to freedom of expression which demands immediate attention. I have argued that there is a core of expressions such as are represented by the reportage and editorials typically found in opposition newspapers that ought to enjoy the fundamental protection of a democratic forum because of their relevance to the ruling function. Furthermore, I have pointed out that we are willing to protect such expressions, even when they are clearly obnoxious to the interests of the majority, because of our commitment to self-government. So, instead of calculating whether or not the tolerance of an opposition press is in the short or long-run interests of our nation, we permit it no matter what our view of the consequences of that committed policy.

But what about secrets? The secrets of the various branches of government are usually directly concerned with matters of clear public and political import. How can we possibly tolerate the secrecy practices of our government and continue to represent our commitment to freedom of public expressions on a no matter what basis? Obviously, in the case of secrets at least, we depart from our commitment because of the overwhelming claim of the public interests which depend upon the maintenance of secrecy practices. Thus, as this objection to my theory goes, either our fundamental commitment to the protection of speech concerned with governance is absolute or it isn’t. If it is, then how can the toleration of the practice of secrecy be explained? And if it isn’t truly absolute, then am I not bound to admit that that which can be set aside on best policy considerations is, in the final analysis, properly understood as supported on best policy considerations rather than on a no matter what basis? I can explain almost everything.

Secrets

in a small city-state is probably a vanished dream. Plato, who had an opportunity to see it at first hand, would certainly not have regarded it as a paradise lost; but for Rousseau at least, the image of “groups of peasants directing affairs of State under an oak, and always acting wisely” remained the elusive (illusory?) ideal against which to measure every artifice of state craft. In any case, direct democracy is not presently available as a real political option, and Canada is typical of those representative democracies which are the favoured form of political association of this century. Electing legislators to represent the sovereign citizenry in an assembly of sufficiently small size to admit of at least the possibility of genuine discussion and debate solves some of the problems facing a large state that aspires to democracy, but it introduces others. Secrets are not the chief among these, but they are important in the context of the expression rights.

The problem arises in connection with the fundamental fact of life for representative democracies, which is that there is interposed, between the sovereign citizenry and citizen-subjects, a third entity (which I shall resist identifying as a third party) called the government. The forum remains the pre-eminent legislative instrument of a self-governing people; and within its informal and uninhibited precincts, the agenda of the nation emerges and its mind gets “made up”. The political fortunes of aspirants to office are assembled (and shattered) there, and the fate of the nation is, one way or the other, put in the way of being decided. But, in a representative democracy, the forum is not the only instrument of government, and some rather permanent standing committees must be instituted not only in order to perform the representative work of legislation, but the functions of the executive and the judiciary as well.

Each of these committees (or branches of government, or tribunals) is, finally, completely, and absolutely responsible to the sovereign citizenry; but they must all have vested in them that measure of authority and power that makes them competent to accomplish their respective missions. In the case of the executive and the judiciary (but not the legislators) that authority must include the strictly limited right to secrete some of their deliberative and executive work from public scrutiny, and to designate some facts, materials, or events as secrets.

This is because a democratic forum is, among other things, a nation “thinking out loud”. It would take little imagination to realize the remarkable disadvantages confronting an individual person whose mind could always be read by everyone. It isn’t that such a person would be at a marginal disadvantage in his relations with others; but rather that his inability to secrete his thoughts would cut so deeply into his capacity to live and act effectively with others that he could not have a recognizably human existence. But the mind of a self-governing people is centred in its forum, and the forum is, of its essence, public. The mind of a democracy is read by everyone.

How can a democracy survive in a world in which the interests of nations can almost never be regarded as perfectly consistent with one another (i.e. the interests that are public to us are but another private interest to them)? And how can we manage the domestic affairs of a nation in which we know that not every citizen at every moment not to mention resident aliens and visitors is willing to perfectly subordinate their private or personal interests to the welfare of the nation? These are the problems that the convention of creating a secrecy-authority for governmental tribunals is meant to at least partially solve. To put the case for secrets succinctly: the provision of a secrecy-authority is necessary because it is one of the essential conditions of effective life for both natural and artificial (individual and corporate) persons; and it is legitimate insofar as it represents a limitation upon the freedom of a democratic forum because the forum, first in governmental importance though it is, is not everything. It is essential to remember in this connection that the forum has such importance because it is the pre-eminent organ for the thinking of a democratic sovereign: but it is not the only place in which a representative democracy does its thinking, and the work of thinking, deliberating, judging, and deciding does not exhaust the vital work of either persons or nations.

This is not to say that the expression rights of citizens are to be balanced against the claims of government. I would insist, rather, that the democratic sovereign is a complex creature whose presence is not (happily or unhappily) restricted to the forum. God may be pleased to be found in his heaven; but we are not to suppose that this entails the impossibility of his actual or delegated presence in the world. To underscore my earlier discussion of this feature of democracy, I repeat that the sovereign citizenry does not stand apart from government, but is only comprehensible as its chief branch. To the extent that citizens vest a portion of their authority in the legislative, executive, and judicial branches of government, these branches take on a delegated and limited sovereign character of their own.

The vesting of authority in an agent is an undertaking fraught with difficulties; and our attempts to deal with these difficulties form one of the central themes of both our religious and political traditions in the West. How are agents to be controlled by their masters, once those masters have given them a measure of real power and authority? There have been some ingenious administrative and management techniques of checks and balances addressed to this problem. But in a democracy at least, the appropriate solutions must finally rest not upon contract but loyalty; and not so much upon technique as upon the creation of a set of shared understandings. In the specific case of the secrecy-authority, the protocol which articulates the legitimate (and illegitimate) uses of that authority provides us with a reflected sense of what those understandings of democratic governance must be. What we will and should stand for in connection with the making and keeping of secrets by government tells us a lot about what we think the form of government really is and ought to be.

It may be useful in this connection to consider an example of the secrecy-authority in action. A municipal planning committee (comprising several aldermen appointed by City Council, along with the relevant experts from the ranks of civic managers) decides upon the locations of stations for a new transit system. The committee appropriately determines that the locations of the stations-to-be must be kept secret until the city has had an opportunity to acquire as much as possible of the targeted property at or near natural market price that is, before the penny drops in the sight of watchful speculators. This means that members of the committee are charged, as an element of their office, to not reveal specific and limited pieces of information. It also means that citizens are enjoined from seeking to subvert the secrecy-authority of City Council’s committee by undertaking acts of espionage or by corrupting officials in order to acquire the secrets. The sites of the new stations are a “city secret”, and, as such, not revealed to the City Council as a legislative tribunal until they are revealed to everyone. This is because the municipal planning committee is not, despite its name, a legislative committee, but rather an executive committee convoked and mandated by the legislative assembly of the city in order to give effective motion to its publicly deliberated will that there shall be transit stations designated and acquired in a fashion that is consistent with the public interest. This is not to say that the secrets cannot be revealed to the entire Council meeting in camera; but in such an event the Council meets not as a legislative body, but rather as an executive committee of the whole. And in such a case, the executive committee of the whole is constrained, as an element of their executive office, to keep the secrets.

The point of this conceptual fastidiousness is to make clear that the city’s secrets are a product of the insight of the legislative Council that, in order to breath executive life into its decision to have a transit system, it must vest a strictly limited secrecy-authority in the body that it delegates to get the job done. Thus, just as we might usefully preface all the legislatively authorized No Smoking signs in the city with the phrase: “We have agreed that there shall be…”, we could accurately say of all legitimate city secrets that we have willed their secrecy.

We resist the censorship of expressions which are relevant to the task of governance because we recognize that to do so would compromise a right of the self-governing citizenry which is constitutive of their sovereignty. To be effectively sovereign, however, the people must be capable of action as well as deliberation; they must have an executive as well as a legislative capability. The executive branch of a representative democracy could not effectively execute the will of the legislature without at least a limited secrecy-authority, and so it must be granted such as an element of the delegation of power which creates it. Significantly, if a sovereign citizenry were to withhold a secrecy-authority from its executive branch, it would not be conserving or protecting the rule of the people, but dooming it to a form of impotence. Since an effective executive capacity is as essential a constitutive element of a real sovereign as is deliberative autonomy, a representative democracy must delegate that measure of secrecy-authority to its executive which makes it competent to effectively give motion to the legislative will.

And what is “that measure”? How much is enough? And perhaps more to the point, how much is too much? Enough is just enough to provide competence; and too much is more than the minimum needed. In the case of the Municipal Planning Committee, enough is comprised in the authority to make the actual location of the transit stations secret until the land is assembled; too much would be to keep the actual project of building the transit system secret, along with its proposed route through the city. If it is urged, in this connection, that keeping both the project and its proposed route secret would give the city an even better chance of assembling the needed land cheaply a result that is in the public interest, Canadians would rejoin that although such a swollen secrecy-authority would make the executive even more efficiently capable of serving the legislative Council, it would do so by trenching too far upon the deliberative integrity of the citizenry. And how do we judge that it would be too far? Because it is more than the absolute minimum secrecy-authority needed to give an effective capability to the executive committee. The secrecy-authority represents an exception to the expression rights, and the less the extent of the exception the better.

All of this is policy talk, and it takes us back to the point of our discussion of secrets. For, as the objection to my theory goes, if the protection of expressions concerning matters of public importance can be limited on policy considerations, then am I not bound to admit that our commitment to their protection rests upon policy considerations as well? And, if that is the case, even our fundamental protection of public expressions could not accurately be represented as grounded in a no matter what commitment as opposed to one that is derived from the calculation of public interest.

My response to this objection is to make a distinction between two types of policy consideration, and two different settings within which the calculation of interests takes place.

Imagine a Canada in which all of us wake up every morning and really start fresh. That is, imagine that we start every day by going back to personal and political ground zero and constituting ourselves and the nation anew. To the extent that it is really possible to imagine what this would be like (and I should admit that my prejudice is that we can only imperfectly glimpse the edge of such a radically “fresh” situation) we would be imagining the calculation of interests from a baseline position. There are, clearly, a very great number of “start up” questions to be asked and answered at such a baseline, but I would urge one of them as going to the core of our discussion. That is the question of who or what each of us is. This is the fundamental question because the answer to it will condition the answer to all of the questions that follow in its train. For instance, if I am a bird, I may want to consider migration. If I am a fish, I may want to find a body of water. And if I am a herring, I may want to find my school. That is, whatever my interests are will depend directly upon what manner of creature I am. Unless there is an answer to the prime baseline question “who am I?”, there can be no sensible calculation of interests. Once the self-identity questions have been answered, the base line has been passed, and calculation of interest is grounded in the structure of the self that has been discovered or chosen.

So I am a person. What is that and what is good for it? Am I a social creature such as the herring is, or am I more like the wolverine going my own way as a sort of animated monad (with windows that narrowly open during mating season)? Am I irreducibly social such that there is at least a partial identity between my individual interest and the interest of my school or group? Or am I and my interests bounded by the skin of my body, with only the coincidence of natures and interests joining me episodically to others? I am content to set to one side the intellectual work that is appropriate to the task of resolving these fundamental issues; but I would insist that it must be intellectual work that is antecedent to the calculation of interests. Before there can be any crunching of numbers to calculate how interest can best be served, there are determinations and choices to be made which are so fundamental as to be properly said to be a form of constituting of the self. Whether or not we would rather be a pig satisfied or Socrates dissatisfied is not to be resolved on policy grounds. And what is good for a pig will likely be very different from what is good for Socrates.

But what about the decision to be a father or a citizen? Are not these personal commitments that are sensibly thought of in terms of the calculation of interests? Are not they the sort of human choices that depend, ultimately, upon the resolution of policy questions? My answer is yes; these are undertakings with others in which we choose a distinctive structure of our selves that makes us a working facet of a human community. After we have decided to be a father or a citizen, we have settled a first-order policy issue for ourselves which changes the basis for the calculation of all subsequent policy issues. It is important, however, when considering this as a policy matter, to remember that it is a decision marked by a sort of constitutional antecedent; that is, a decision that is always described in the first instance as “the best one for me given what I am”. “And who or what do you take yourself to be that this is the best social course for you to follow?” Becoming a priest, or a father, or a citizen is to continue life on a fresh footing; one in which your life is not simply your own; one in which to understand what you have chosen is to understand that you have responsibilities. Those are not the sort of commitments that are made out of the blue; they are made because of previous determinations about fundamental issues of identity. Of course, you can abandon your family or renounce your citizenship; and there may be circumstances in which such convulsions are justifiable as best policy. But they are the sort of policy decisions that involve something like a revolution in the structure of the self, and they ought never be confused with the routine policy calculations that are based upon that identity rather than question it. There is a big difference between fighting about French Immersion and talking to a divorce lawyer.

So… “If you’re my dad ‘no matter what’, how come you’re going away on that tugboat for days on end? Why don’t you come to the soccer practices like a real daddy?” Because no money means no living, and no living means a worse family life than the one that the crewman can provide if he sticks with his job. It’s a policy decision all right, but it’s a policy decision that is grounded in the commitment to family rather than one that calls it into question.

Granting a limited secrecy-authority to governmental tribunals is a policy decision; there is no denying that. It is, however, a policy decision that is driven by the commitment to democracy, rather than one which represents an excepting instance to that commitment. It is an unwanted necessity, a weak spot that needs watching, a reminder that our human arrangements are prone to imperfection. It involves a strictly limited compromise of our commitment to the protection of expressions that are relevant to the ruling function of the sovereign people. But like the crewman’s compromise of one element of the ideal of parenthood namely being around for more than quality time, it is a response to a necessity that flows from an even more fundamental commitment. The commitment to the provision of a fundamental status to the expression rights is grounded in our commitment to self-government. If the realization of self-government requires the delegation of a limited secrecy-authority which conflicts with the expression rights, then that conflict must be seen for what it is, carefully circumscribed, and watchfully borne.

To summarize: the problem that secrets were thought to pose for my theory of the expression rights was that they represented a set of instances in which our supposedly no matter what commitment to the protection of expressions was compromised on best policy grounds. The solution resides in attending to the way in which fundamental commitments condition the calculation of all interests.

In the case before us, the fundamental commitment a commitment so basic that it is constitutive of Canada and Canadians is to self-government. We don’t, in the final analysis, protect freedom of expression for its own sake, we protect it because that is the policy for a sovereign citizenry to follow. “They must be free because they must govern.” The point of the reflection on the necessity of a limited secrecy-authority for government was that it produces the conclusion that if there are to be no secrets, there will be no democracy. What follows from that is the balancing of policy from the point of view of a nation committed to being a democracy. What comes first is democracy; if we face a choice between absolutely perfect democracy (no secrecy-authority to compromise our no matter what commitment to the expression rights), and a slightly maculate democracy (one in which the expression rights are slightly compromised by a secrecy-authority), we take the slightly imperfect democracy to go with our slightly imperfect friendships, family lives, etc. and try our best to make it as faithful as possible to our fundamental commitment.

Just as we discovered, in our discussion of freedom of the press in Nicaragua, that our no matter what commitment was finally to democracy rather than to the toleration of opposition newspapers, we have discovered that viewed from within a democracy such as our own, the no matter what commitment is to being the best democracy possible rather than no democracy at all. But none of this is really accurately described simply in terms of calculations of the public interest. It is a policy determination that can only be understood against the background of the personal and political commitments that if flows from. It is the calculation of democrats, determining what is in the interest of a community of persons committed to self-government. To neglect this matter of a commitment to a communal enterprise informing the calculation of best policy in connection with secrets is tantamount to lumping together the calculation of the interests of fish and fowl.

Our exploration of the expression rights in a democracy has taken us a considerable distance from the simplicity and clarity of our earlier discussion of those rights in King Richard’s England. There, as the reader will recall, we were able to confidently affirm that “no one but Richard can be competent to determine what is relevant to his ruling function”. Once the expression rights were firmly joined to the task of governance, the way seemed clear for a sort of clean absolutism to cut through the tangle of complexities which seem surround the moral, political, and legal treatment of this issue. But such is, of course, not to be.

The theoretical position developed in this paper does not have the virtue of simplicity. But the truth of the matter is, I am convinced, that there is to be no simple theoretical expedient within which we can take refuge from the difficult problems posed for representative democracies by the expression rights. We must be willing to settle for an essentially complex account of this cluster of issues, because the truth of the matter is that democracy is an essentially complex form of governance.

It is worth reviewing the fundamental source of that complexity, which resides in the fact that in a representative democracy, the people are at once the ultimate source of all political authority, as well as the subjects of their own rule, as it is articulated and executed by the government they elect. There is, therefore, in a representative democracy, a measure of diffusion of sovereign authority. Indeed, this is the fundamental point that has been raised and explored in connection with our just concluded discussion of the secrecy-authority.

An understanding of the expression rights in Canada does not hinge upon the question of whether or not there is some diffusion of sovereign authority inherent in our form of government; the question is, rather, upon what principled basis that diffusion is to be understood and controlled. We believe, evidently, that some forms of expression are much more important to the ruling function than are others, and that we can afford to protect private persons from malicious defamation without hopelessly compromising those expression rights which are constitutive of the sovereign character of the People. That is, we have decided that a class of expressions can be excluded from the protection of our forum without unacceptable harm being done to our democratic commitment. The boundaries of the class of expression are defined in the statute and common law of defamation, and the adjudication of cases falls to the judiciary. Which is but another way of saying that we have vested in both our legislative and judicial branches of government a measure of sovereign authority to limit the expression rights of Canadians.

This is not a retreat from the democratic commitment, and it does not compromise the sovereignty of the Canadian people. It could become such a retreat and a compromise, but in order for that to occur, there would have to be some significant departure from the legislative and judicial course that we have followed consistent with our recognition that we can distinguish between the democratic status of public and private expressions. That distinction has, if the argument of this paper is correct, emerged from our experience with the very complex idea and task of democratic governance. That there is always a danger, given the diffusion of sovereign authority in a representative democracy, that one or more branches of government shall trench upon the rights of citizens, goes without saying. King Richard takes on an essentially complex character in a country such as ours; part of him rests with the citizenry, and other parts are vested in other branches of the government.

If all of this means that my theory of the expression rights is messy, I can only respond with a rabbinical shrug of resignation, and admit “so maybe the world is messy”. I began this essay by offering the metaphor of deciphering the language of rights. It is, it turns out, a language with a few irregularities; and in this it simply resembles all of the natural languages we know of. And to press my metaphor to the limit just because a language has irregularities doesn’t mean that it has no structure, or that anything goes. Irregularities can only emerge and be seen as irregular against a structured, “regular”S background. That background is, in the case of the expression rights, one that is structured by the democratic commitment.