Limits On Speech example essay topic

Every Canadian citizen has the right to thought, belief, opinion and expression, including freedom of the press and other media of communication provided under's. 2 (b) of the Canadian Charter of Rights and Freedoms. However, the statement that the's. 2 Charter right to free expression does not protect individuals when expressing an opinion or opinions, however sincerely held, which are (a) clearly untrue according to an overwhelming preponderance of an expert opinion; (b) likely to cause grave and unprovoked offense to other citizens; (c) of no significant benefit to the public interest, is too broad. I intend to provide reasons as to why I would not support such a thesis, as this thesis is too broad and gives rise to a lot of arguments against its validity.

Using the balancing provision under's. 1 of the Charter the courts have limited's. 2 rights in the past for instances of harmful speech or speech that is patently untrue. "The courts have to find a balance between protecting minorities, on the one hand, and safe- guarding freedom of expression, on the other" (Sumner, p. 159).

Under section 319 (2) of the Criminal Code a person or persons may be convicted of an offence carrying a maximum penalty of imprisonment for 2 years if he / she communicates statements, other than in private conversation, willfully promoting hatred against any identifiable group. The challenge for the hate propaganda statute using the Charter has been raised in the case of a teacher who taught anti-Semitism in his class. James Keegstra was convicted under's. 319 (2) for providing speech that was misleading, untrue and of no social benefit. Keegstra's anti-Semitic speech was in itself harmful and it could easily potentially provoke harm to another. Keegstra left an impression on his students that may stay with them for some time.

Even if the message of hate propaganda is outwardly rejected, its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some validity (Dickson C. J R. vs. Keegstra in Bickenbach, p. 72). Securing freedom of expression in Canadian society lies the need to ensure that truth and the common good are attained. In the Keegstra case the Court said that 2 (b) is not just there to protect egalitarian interests, it is not just a means to an end in protecting democracy - instead it protects the value inherent in expression. Expression wasn't excluded from protection on its face; it was the harm that made it worthy of limits.

While point (a) and (c) in the original thesis may not be as pressing to require limitation of's. 2, any speech that may cause harm to another individual (as in (b) ) is such an egregious possibility, that such speech must be limited. Point (a) and (c) should not be limited simply because it is not true or carries no social benefit; rather we should ensure that limiting speech that does no public good or has no truth should only apply when that speech is likely to cause imminent harm. The Charter has a built in balance system in's.

1, which allows a Court to measure the degree, to which speech is should or not be reasonable protected. There is nothing wrong with the thesis given if as we believe that the justice system and the courts can make the correct balance in determining when to limit's. 2 rights. There is an inherent concern if we determine that the government may limit any speech on its face in all cases where (a), (b), or (c) are possibilities, because's. 2 is a fundamental freedom in a democratic society. The thesis doesn't seem to provide any requirement for the government to prove (a), (b) or (c), but rather it may limit speech when it deems speech to be misleading, harmful, or of no benefit.

The state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas (Dickson C.J., R. vs. Keegstra in Bickenbach, p. 73). The government must be required to prove the value and reasonableness of its limit on speech rights-for example: in the case of (a) misleading / untrue speech-untrue according to whom? Whose experts? What level of expert consensus is required to call speech untrue - 51% or 99%? In part (b) is it enough that speech might be harmful or should we hold the government to some burden of proof before limiting speech, and in (c) what is the social benefit sought to be protected?

Who does it benefit? Does the speech simply provide no benefit or does it actually harm or set back a particular social benefit? Speech that provides no benefit or a neutral benefit is different than speech that actually harms or impedes a social benefit that the government has deemed worthwhile. To limit's. 2 on its face for the possibility of speech that (a), (b) or (c) is heavy-handed and does not take into account a case-by-case analysis of the facts at hand. To give an extreme example, stifling the speech of someone who says "two plus two equals five" is not the same as limiting the rights of the person who says the Holocaust or slavery are illusions.

There are degrees to be measured in the analysis of when to limit free speech rights. Part (b) of the thesis is a valuable goal, since its intent is to avoid harm on another citizen, but the government should be required to prove imminent or likely harm. Limiting speech that might be harmful is too much, there must be a burden on the government to prove likelihood of the harm- in most cases of truly deviant speech (hate speech, racism, speech inciting violence) this isn't a particularly difficult burden to meet. "Limitations upon hate propaganda are directed at a special category of expression... restrictions on expression of this kind might be easier to justify than other infringements of's. 2 (b)... (Dickenson C.J., R. vs. Keegstra, in Bickenbach, p. 75).

Since the burden is easily met, there is no need to limit all potentially harmful speech that is very deviant. The commitment to eradicate hate propaganda and the stress for equality and multiculturalism is what forms the basis of the Canadian Charter of Rights and Freedoms. Canadian society already has limits on speech that is misleading / untrue (libel and slander) or potentially harmful (Criminal Code re: uttering threats or acting as accomplice in a crime, etc.) - these checks and balances are sufficient in the instance of speech that is very deviant". In Canada defamatory libel against individuals is a criminal offense, Section 319 (2) seeks to extend the same protection to certain specified groups" (Sumner, p. 172). Similarly,'s. 1 of the Charter builds in a system of balancing for judges to undertake when considering whether to limit any Charter right, including's.

2 rights (the three elements of's. 1 are that rights may only be limited when the limitation is (1) reasonable, (2) prescribed by law and (3) demonstrably justified in a free and democratic society - the Court has developed a series of tests to satisfy all three elements of's. 1). This analysis acts, as a sufficient gatekeeper to filter out protection for any speech that is truly harmful. But to immediately state that all speech that is misleading, potentially harmful or of no social benefit is not protected, does not allow a Court to undertake this kind of analysis of real potential for harm - it simply creates a blatant limitation in rights to free expression without any kind of determination in an objective sense as to whether such limits are either warranted or desirable in a democratic society. Part (c) of the thesis is particularly troubling - who decides social benefit?

The Court? Determining a social good should be left as a task for elected officials. It is a slippery slope when we allow the Court to decide social order and social benefit - it is not their role in a Parliamentary democracy. In the Butter case Twaddle J. A of the Court of Appeal disputed the belief that hindered freedom of sexual expression, in which the Chief Justice agreed " to impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to... enjoyment of individual freedoms which form the basis of our social contract" (Lamer C.J., et. al, R. vs. Butler p. 88). In the Butler case the courts determined that the physical activity could have "meaning" as an expressive act.

Under's. 1 analysis affirms that avoiding harm is a more important objective than moral standards. But who merits what society deems harmful in the case of sexual expression? An argument that could have been raised to the Courts decision in the Butler case is that it hinders freedom of expression. The decision made by the Courts in the Butler case considers those females who engage in uncommon sexual acts abnormal. And because of this view, the judgment to be able to hinder on the right for those individuals to be able to find an outlet to purchase such pornographic materials in a free democratic society, prevailed.

Similar to the above, in the case of government deciding speech should be limited, because it is of no social benefit. The thesis strips the Court of its ability to determine the reasonableness of that limit, whether that limit is actually pursuant to a law (as opposed to just being imposed indiscriminately by the state), or if that limit is justified. Legal rights are implemented to protect individual social values. The constitutionality of statutes is about finding a correct balance between prohibiting hate propaganda, and ensuring the freedom to express one's self. The Charter was not intended to protect potentially harmful speech, and the underlying principles of the Charter are to protect and promote the public good, so speech that can cause a potential risk of harm should not be protected, under the Charter's.

1. The protection of expression that is potentially harmful runs the risk of violating another of the Charter's foundational sections - section 15 re: equality rights or's. 7 re: life, liberty, and security of the person. If the government protects (or tolerates) the speech of an individual that is potentially harmful, this protection may put the government in the position of denying another person his / her rights under another section of the Charter.