As a newspaper editor and loudmouth, the freedom of expression is one very dear to me. While the freedom is certainly necessary for the healthy development of a democratic state, it also addresses something more personal. The basis for every step – forward, backward, or sideways – that we have taken as a species is the expression of a thought: from the discovery of fire to the invention of the iPad, no thought in history ever had any value to a society until the thinker shared it. Thus, to hamper a person’s expression is to hamper their usefulness, their purpose, and their value. This is why, in 1982, politicians opted to enshrine the freedom in Canada’s constitution. Politicians, of all people!
The tricky part, naturally, is whether and how to limit the freedom. For all the bluster and litigation surrounding this question, the answer seems to boil down to how we interpret this maxim: expression is unacceptable when it is, itself, incompatible with expression. For this reason, violent expression is prohibited, lest it maim or eternally silence another voice. Likewise, counseling or inciting violent expression is prohibited: a morally acceptable form of risk management. The state must, after all, try reasonably to protect its citizens from harm, and punish or rehabilitate those who harm others. These are the limits that the law must place on the freedom of expression.
I wish, now, to caution my readers against interpreting too broadly the above maxim. If we wantonly broaden limits on expression, we undermine the freedom itself.
For example, in 1984, the state began its criminal prosecution of one Ernst Zündel for “reporting false news.” He, like many before him, had published pamphlets claiming that the Holocaust didn’t happen. In 1992, after eight years and two trials, the Supreme Court of Canada allowed Zündel’s appeal, finding the provision under which he was charged unconstitutional, since it’s not a goddamn crime to tell a lie, even in public.
Ernst Zündel is the most irritating sort of man. He makes ludicrous claims that offend the memory of so many, be they Jews, Roma, Communists, racial minorities, or any of the other groups systematically murdered in Europe during the Holocaust. He frustrates those who value the memory of those people, including me. This is because humans instinctively defend the perceptions that they believe or know to be true. On occasion, some of us get it wrong, and wind up defending the wrong perceptions, and I am confident that Ernst Zündel is one of those people. Why then, do we add the insult of a criminal prosecution to the injury of being wrong? During the eight years of litigation surrounding Zündel’s charge, he made headlines. The tripe he published made headlines too. Perhaps it is trite by now to ask, but why do we give people who say such things a public platform on which to say them, when they pose no danger to anyone, and we could simply let them languish in obscurity, where falsehood belongs?
We should all have the right to express ourselves, as loudly and objectionably as we wish, but we must always remember that no one is obliged to listen. Only truth will have an audience in the long run.
Further, we mustn’t forget that free expression is sometimes offensive. Last October, Rowan Atkinson championed a movement to abolish section 5 of the UK’s Public Order Act, which outlaws “insulting words and behavior.” Naturally, prosecution has been rather selective, given that the Act applies to British people, and the Crown found it impractical to enforce fines against all 62 million of them. After all, as Atkinson points out, insulting one another is something of a national pastime.
The point is that free expression sometimes hurts our feelings. Mock Trial performances can be particularly insulting, especially to our beloved faculty. But, as Professor Haigh notes later in this issue, social norms are flexible and responsive – far more so than the law. Those who say mean, objectionable, and untrue things will be judged for them in the long run. That should be consolation enough for the offended.
As an editor of a newspaper, I urge you all, readers, to keep your differences of opinion and hurt feelings out of court, no matter how right you may be. It’s an Obiter Dicta guarantee that you’ll be far more satisfied calling them names instead.