The Concept of Freedom of Speech in Different Forms of Government
The nations allow the ‘freedom of speech’ to erratic and changing degrees. The ideal aristocracy of Plato actually implements restriction in connection to the greater good, while the contemporary democratic states acknowledge the freedom relating to speech as a rudimentary human right. Yet, it can be said that neither in the nation of United States nor in the nation of Canada is freedom relating to speech absolute. The main debate is regarding where the line can be drawn. Each nation consists of the laws that actually prohibit things like libel, copyright infringement and incitement to violence. However, the definition in relation to ‘freedom of speech’ becomes challenging and problematic when the issue relating to ‘hate speech’ arises. The United States and Canada have selected 2 considerably distinct approaches in relation to ‘hate speech’. Hence, the thesis statement signifies the vital variance or distinction in official American and Canadian understandings regarding the freedom relating to speech. The Canadian Supreme Court upholds the laws relating to anti-hate speech, while, the Supreme Court of the United States steadily overturns the laws that bars the expression of the ‘hateful’ thoughts and views. This essay shall contrast and compare the American and Canadian protections regarding freedom relating to speech. Irrespective of the opinions forwarded by the courts, there has been discrepancy in the opinion of the general populace of every nation regarding forbidding hate speech with the help of law. It has been argued by the advocates in favor of barring hate speech that instances relating to ‘hate speech’ include aspects such as free speech, balance and respect for every individual. It has been argued by others that if certain specific words or terms might be proscribed as “hate speech” (depending upon the manner in which they are intuitively construed), there might be an alarming impact upon controversial speech normally. In conclusion, it summarizes the points that have been deliberated upon in the paper.
In the earliest oral or verbal societies, ‘speech’ factually meant the spoken word. Afterwards, speech gradually became the content or thing of the media from inscription to the broadcasting, telephone as well as the internet, all of them can be said to be the elements of the new oral or verbal society. It should be noted that several forms of the government exist. For instance, according to Plato, there are 4 kinds of government, which include aristocracy, oligarchy, timocracy and tyranny. However, none of them allow freedom of speech in relation to its citizens. On the contrary, a comparatively higher extent of freedom relating to speech is connected to the democracy, wherein the freedom relating to speech is regarded as rudimentary human right (as specified by ‘Department of State’s Bureau of International Information Programs’ of the United States).
In the American as well as the Canadian versions of the democracy, the freedom relating to speech is actually forwarded by the law, however, it should be noted that neither in United States nor in Canada is it absolute. Section 2, as provided in The Canadian Charter of Rights and Freedoms, protects or safeguards the ‘fundamental freedoms’, which includes the freedom relating to expression. Although, section 1 of the Canadian Charter allows the laws that may levy ‘reasonable’ restrictions upon such freedoms. It should be noted that the utilization of section 1 has been made in order to levy restrictions upon obscenity, as in the case of R v Butler [1992] 1 S.C.R. 452, and significantly, upon hate speech, as in the case of R v Keegstra [1990] 3 SCR 697. However, undeniably, it is also true that the section 318, section 319 and section 320 of Criminal Code of Canada forbid ‘hate propaganda’, which includes supporting and encouraging genocide. Moreover, the provincial statutes relating to ‘anti-hate’ have been defended by the Canadian Supreme Court such as in the case of Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC 11. It should also be noted that the Criminal Code of Canada forbids sedition, defamatory libel, obscenity and treason. In a similar manner, the 1st Amendment to the Constitution of the United States forbids the laws that abridges the freedom relating to speech. But, the Supreme Court of the United States acknowledged the fact that the freedom relating to speech is certainly not absolute. Hence, after such acknowledgement, it has permitted exceptions in connection to certain specific laws. For instance, in the case of Brandenburg v. Ohio 395 US 444 (1969), it permitted the law, which was against the provocation or incitement of violence. In the case of Chaplinsky v. New Hampshire 315 US 568 (1942), it permitted the law, which was against the provocation of a fight. In the case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court of United States permitted the law in connection to false statements of the fact (like slander and libel). Again, in the case of Miller v. California 413 US 15 (1973), it permitted the law, which was against obscenity. In the case of New York v. Ferber 458 U.S. 747 (1982), it permitted the law, which was against child pornography. Another important case is the case of Harper & Row v. Nation Enterprises 471 US 539 (1985), the Supreme Court permitted the law that was against copyright infringement. Therefore, despite the fact that the nation of United States and the nation of Canada acknowledge the freedom relating to speech in general, each of the above said nations stipulate certain exceptions. The vital distinction amidst the American and the Canadian exceptions can be said to be the permissibility of the anti-hate propaganda legislations of Canada, which does not have any equivalent in the nation of United States.
The Freedom of Speech in the United States and Canada
The main and predominant Canadian approach has been defined and designated as ‘freedom with responsibility’. Statute can be formally perceived as a genuine and a valid method to counter and fight embedded bigotry and racism. It has been argued by Jonathan Kay (a journalist) that the human-rights law in the nation of Canada is a creation of the years of the 1960s, when most of the society was faced with prejudice and bigotry. It can be said that the Human Rights Act of the nation of Canada encompasses several provisions relating to anti-discrimination. It can also be said that the above said Act actually encompassed a particular provision that outlawed the communication of the hate messages through internet or telephone, however, that particular provision was rescinded and revoked in the year of 2012 by the government that was Conservative government (possibly responding to the opinion of the general populace that thought that the law was very severe). Although, ‘hate speech’ continues to be criminalized and banned by The Canadian Criminal Code as well as the provincial statues. Certainly, there has been a lot of disagreement in the nation of Canada regarding the legality and legitimacy of the laws relating to hate speech. For instance, the infamous comment by Dean Steacy formed outrage in the nation of Canada. Dean Steacy was a Canadian Human Rights Commission investigator. He was asked that what value could be given in respect of freedom of speech while investigating. His answer to this question was that the freedom relating to speech is actually an American notion and ideology, and hence, no value should be given to such notion. However, on the other hand, it was believed by Mark Mercer (who is a philosophy professor) that there would be any benefit if the freedom relating to speech is abridged or reduced. He further specified that the real hate-speakers might have been incarcerated as well as fined in the nation of Canada, however, even after the implementation of such measures, the conditions of the marginalized or relegated Canadians have not improved (Eidlin, 2018).
The Supreme Court of the nation of United States has archaeologically as well as steadily stroke down or cancelled laws that have restricted speech, which certainly includes the hate speech, except when a specific law belonged to a particular categorical exception. For instance, agitation and provocation where a looming danger relating to physical violence actually exists. It must be stated that the ‘hate-filled’ speech that simply advocates the utilization of force (however, do not give rise to any kind of imminent violence) is not adequate enough to be considered as an exception in relation to the 1st Amendment, as was specified in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). Moreover, efforts by the universities in the nation of United States for regulating ‘hate speech’ had often been overturned or reversed in the particular courts. Regardless of the United States Supreme Court practice of supporting and endorsing the protection relating to the ‘hate speech’, there has been considerable public opportunity that supported and aided the anti-hate speech law of United States. It must be noted that approximately 51 per cent of the Democrats provide support in respect of an anti-hate speech law as per the 2014 data.
Exceptions to the Freedom of Speech in the United States and Canada
It can be understood that Canada like the United States is considered to be a federal democracy where the individuals vote for the politicians at a federal and state level. Therefore, Canada like the United States is considered to have a constitution that guarantees the right to freedom of speech and expression along with other fundamental rights because both the countries believe in the rule of law system (Nash, Gorman-Murray, and Browne, 2021). However, despite such similarity, the legal systems protecting the freedom of speech rights of the two countries are all too different. The constitutional protection of the free speech is supposed to be through the constitutional guarantee of free expression (Cohen-Almagor, Raphael, 2018). The Charter of Rights and Freedoms assist in guaranteeing the freedom of expression as such are subjected to certain reasonable limits which are evidently justifiable because the individuals are living in a free and democratic society. Therefore, it can be observed that the free speech is limited by the state in reasonable and logical ways. However, if such is contrasted and compared with the United States, it can be understood that there are no limitations imposed and the rights are supposed to be safeguarded through the First Amendment of the United States Bill of Rights as the Congress can make no law that would be abridging the freedom of speech or the freedom of the press. Nonetheless, the Canadian legal system and the Constitution guarantees the acknowledgment of the state’s right to restrict the free speech. This acts as a striking difference because the American Constitution guarantees and forbids the state from doing so (Fredman, Sandra, 2018).
In forbidding the states from limiting the freedom of speech, the American Supreme Court has not construed the First Amendment literally as the rights are stated through the statutory legislation which are in fact subjected to limitations as these restrictions are imposed by the courts in order to solve the problem of struggling to balance the conflicting rights by placing them in a practical or real working structure. Therefore, free speech is not an exception. It can be elucidated from the case of Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) where Justice Hugo Black had asserted upon reading the 1st Amendment literally in order to vote for striking down a states’ group libel law as the First Amendment forbade the laws without any kind of ‘ifs’ and ‘buts’. However, his view was dissented upon and not prevalent. As a result, through this, it can be comprehended that the explicit recognition is not prevalent all the time as limitations would be imposed in a democratic society even on the fundamental freedoms (“Supreme Court of Canada – Speech by Beverley Mclachlin – Protecting Constitutional Rights: A Comparative View of The United States and Canada”. 2022). Nevertheless, in spite of such the means of free speech, in Canada due to such is more narrowly conceived as it is evidenced through the respective positions of hate speech along with pornography and defamation (Hinckley, Robert and Harell, 2020). Whilst the American right regarding the freedom of speech is supposed to admit limitations or restrictions through the urgency of practical necessity, the fact remains that the reasonable limit on freedom of speech in Canada is supposed to be amounting to unreasonable limit in the United States (“Supreme Court of Canada – Speech by Beverley Mclachlin – Protecting Constitutional Rights: A Comparative View of The United States and Canada”. 2022).
Comparison of American and Canadian Protections Regarding Freedom of Speech
Furthermore, it can be observed that, some Canadians like the Butler decision but there are others who do not like it. Therefore, the debate itself would be based on the comparative analysis of the American and the Canadian legal and political world. Free speech is supposed to be played out differently and it is considered to be publicized in different or distinct ways as hate speech are supposed to be protected in the United States than Canada (Bekchanovna, Tursunova Shahnoza, 2019). However, provided the hate propaganda laws are drafted tightly, they are known to pass muster as per the Canadian Charter. In comparison to such, the United States is supposed to be a little short of incitement to violence as such is considered to be legally limited or restricted rather than hate speech. In order to understand the concept another example can be used where it can be demonstrated that suing for libel is easier in Canada than it is in the United States. The implementation of the 1st Amendment is well-thought out to guarantee the freedom of press as such led the country to New York Times Co. v. Sullivan 376 US 254 (1964). This case elucidated that the permission given to the newspapers to publish false rumors were considered to be intentional as well as reckless. However, as per the Canadian case of Hill v. Church of Scientology 1995. 2 S.C.R. 1130 publishing of false rumors was expressly declined to implement the Sullivan approach as it did not believe in printing unverified material at the peril of being indicted for libel. Therefore, the difference can be understood, however, the Supreme Court tried to consider the argument or deliberation that a Sullivan approach was required in order to prohibit the ‘chilling’ of the free dissemination of data and information as such was necessary for the functioning of a democracy. However, despite such, the case turned out to be different because the chilling effect that was supposed to be flowing from strong libel laws was supposed to be outweighed through the importance of protecting the reputations of the individuals against false and slanderous rumors or proclamations. Due to such, the Canadian law is supposed to accept the objective of getting at the truth through free exchange of ideas and thoughts but it actually accepts that untrue words cause damage to the particular individuals or the particular groups as the damage cannot always be rectified and repaired by extensive debates and deliberations (“Supreme Court of Canada – Speech by Beverley Mclachlin – Protecting Constitutional Rights: A Comparative View of The United States and Canada”. 2022).
Conclusion
Thus, through the analysis, it can be concluded that, each right is guaranteed by the Charter in Canada and the Bill of Rights in the United States and this is supposed to assist in creating a unique jurisprudence for both the countries. For instance, it can be elucidated that, the Canadian method is more nuanced in comparison with the United States because of its due process of law as well as the rights of the individuals in the context of law enforcement. But in spite of such, the evidentiary statements acquired by the United States through the result of unlawful investigation is not considered to be applicable as proper and righteous evidences. Therefore, the implementation of the rights in Canada is more flexible as compared to the United States as the evidence in the Canadian process would be unfair if it is used for unlawful purposes as the effect of administration of justice would be helping them to see things more clearly. In addition to this, the American Bill of Rights as well as the Canadian Charter are distinct as explicit recognition is given to the Canadian Charter where there is collective or group rights and through the sections the stage for different approach is set for awarding constitutional protection of rights as these approaches are supposed to help in seeing a different balance amidst the rights of the individuals and the rights through a collective interest. Thus, the balance is supposed to be at play for the operation of the freedom rights. Therefore, it is different from the law of the United States because it enhances the vitality of the freedom of speech rights. Additionally, the robust conception of protecting the freedom of speech rights in the Canadian Constitution is supposed to help in guaranteeing certain rights through the communitarian dimension but such is different in the United States as the US constitution recognizes the freedom of speech rights before the state and the constitution but the Canadian Constitution creates the right of freedom of speech for the individuals as it can be stripped off when it is necessary. The United States cannot strip off the rights because it comes before the state and the federal level and it is prioritized for the individuals. Due to this, the freedom of rights is different in these two comparative states.
References
“Supreme Court of Canada – Speech by Beverley Mclachlin – Protecting Constitutional Rights: A Comparative View of The United States and Canada”. 2022. Scc-Csc.Ca. https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-04-05-eng.aspx.
Beauharnais v. Illinois, 343 U.S. 250, 275 (1952).
Bekchanovna, Tursunova Shahnoza. “Constitutional and legal regulation of mass media and study of public opinion.” ??????? ????? ? ??????????? 23 (71) (2019): 73-77.
Brandenburg v. Ohio 395 US 444 (1969).
Canadian Charter of Rights and Freedoms, 1982.
Chaplinsky v. New Hampshire 315 US 568 (1942).
Cohen-Almagor, Raphael. “Taking North American white supremacist groups seriously: The scope and the challenge of hate speech on the Internet.” International journal of crime, justice, and social democracy 7, no. 2 (2018): 38-57.
Constitution of the United States.
Criminal Code, 1892.
Eidlin, B. (2018). Labor and the class idea in the United States and Canada. Cambridge University Press.
Fredman, Sandra. Comparative Human Rights Law. Oxford University Press, 2018.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Harper & Row v. Nation Enterprises 471 US 539 (1985).
Hill v. Church of Scientology 1995. 2 S.C.R. 1130.
Hinckley, Robert A., and Allison Harell. “Selective exposure and the authoritarian dynamic: Evidence from Canada and the United States.” Journal of Social and Political Psychology 8, no. 1 (2020): 151-172.
Miller v. California 413 US 15 (1973).
Nash, Catherine J., Andrew Gorman-Murray, and Kath Browne. “Geographies of intransigence: freedom of speech and heteroactivist resistances in Canada, Great Britain and Australia.” Social & Cultural Geography 22, no. 7 (2021): 979-999.
New York Times Co. v. Sullivan 376 US 254 (1964).
New York v. Ferber 458 U.S. 747 (1982).
R v Butler [1992] 1 S.C.R. 452.
R v Keegstra [1990] 3 SCR 697.
Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC 11.
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