CONSTITUTIONAL LAW 37 FREEDOM OF EXPRESSION I: GENERAL FRAMEWORK

CONSTITUTIONAL LAW37 FREEDOM OF EXPRESSION I: GENERAL FRAMEWORK Shigenori Matsui

INTRODUCTION “Freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication” under s. 2(b) Freedom of expression is generally protected in every countries of the world, yet the specific details of the protection are significantly different.

I Values of Freedom of Expression • What kind of values does freedom of expression have? • R. v. Keegstra [1990] • “…the Court has attempted to articulate more precisely some of the convictions fueling the freedom of expression, these being summarized in Irwin Toy… as follows: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed.”

McLachlin, J. dissenting • “Various philosophical justifications exist for freedom of expression. Some of these posit free expression as a means to other ends. Others see freedom of expression as an end in itself. • Salient among the justifications for free expression in the first category is the postulate that the freedom is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions. This is sometimes referred to as the political process rationale. • The validity of the political process rationale for freedom of expression is undeniable. It is, however, limited. It justifies only a relatively narrow sector of free expression…”

“Another venerable rationale for freedom of expression … is that it is an essential precondition of the search for truth. Like the political process model, this model is instrumental in outlook. Freedom of expression is seen as a means of promoting a "marketplace of ideas", in which competing ideas vie for supremacy to the end of attaining the truth…. This approach, however, has been criticized on the ground that there is no guarantee that the free expression of ideas will in fact lead to the truth. • Notwithstanding the cogency of this critique, it does not negate the essential validity of the notion of the value of the marketplace of ideas. While freedom of expression provides no guarantee that the truth will always prevail, it still can be argued that it assists in promoting the truth in ways which would be impossible without the freedom.”

“But freedom of expression may be viewed as more than a means to other ends. Many assert that free expression is an end in itself, a value essential to the sort of society we wish to preserve. This view holds that freedom of expression "derives from the widely accepted premise of Western thought that the proper end of man is the realization of his character and potentialities as a human being". It follows from this premise that all persons have the right to form their own beliefs and opinions, and to express them. “For expression is an integral part of the development of ideas, of mental exploration and of the affirmation of self"…Freedom of expression is seen as worth preserving for its own intrinsic value.”

“This Court has adopted a purposive approach in construing the rights and freedoms guaranteed by the Charter. …it is appropriate to consider the ends which freedom of speech may serve in determining its scope and the justifiability of infringements upon it. These ends include the maintenance of our democratic rights and the benefits to be gained from the pursuit of truth and creativity in science, art, industry and other endeavours. At the same time, the emphasis which this Court has placed upon the inherent dignity of the individual in interpreting Charter guarantees suggests that the rationale of self-actualization should also play an important part in decisions under s. 2(b) of the Charter.”

Is the Supreme Court of Canada right in invoking three different values? What about the value as a safety valve, as pointed out by Professor T.I. Emerson? Any other rationales? • What kind of function does this analysis play? To exclude some expressive conduct that does not deserve constitutional protection? To give stronger protection to freedom of expression than to other rights and freedoms? To employ different standards of review depending upon the value of speech involved?

II What Is Expression? • A. The Framework • Irwin Toy Ltd v. Quebec [1989] • “We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning.”

“It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.”

“The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen… Indeed, freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure.”

B. Is the use of language a form of expression? • Ford v. Quebec [1988] • “Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. ”

C. Is the hate speech an expression deserving constitutional protection? • R. v. Keegstra [1995] • “Apart from rare cases where expression is communicated in a physically violent form, the Court thus viewed the fundamental nature of the freedom of expression as ensuring that "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee" … In other words, the term "expression" as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed. ”

“Turning specifically to the proposition that hate propaganda should be excluded from the coverage of s. 2(b), I begin by stating that the communications restricted by s. 319(2) cannot be considered as violence, which on a reading of Irwin Toy I find to refer to expression communicated directly through physical harm. Nor do I find hate propaganda to be analogous to violence, and through this route exclude it from the protection of the guarantee of freedom of expression….all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. … Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is to be categorized as expression so as to bring it within the coverage of s. 2(b).”

“While the line between form and content is not always easily drawn, in my opinion threats of violence can only be so classified by reference to the content of their meaning. As such, they do not fall within the exception spoken of in Irwin Toy, and their suppression must be justified under s. 1. As I do not find threats of violence to be excluded from the definition of expression envisioned by s. 2(b), it is unnecessary to determine whether the threatening aspects of hate propaganda can be seen as threats of violence, or analogous to such threats, so as to deny it protection under s. 2(b).”

“It has been argued in support of excluding hate propaganda from the coverage of s. 2(b) that the use of ss. 15 and 27 of the Charter -- dealing respectively with equality and multiculturalism -- and Canada's acceptance of international agreements requiring the prohibition of racist statements make s. 319(2) incompatible with even a large and liberal definition of the freedom … The general tenor of this argument is that these interpretative aids inextricably infuse each constitutional guarantee with values supporting equal societal participation and the security and dignity of all persons. Consequently, it is said that s. 2(b) must be curtailed so as not to extend to communications which seriously undermine the equality, security and dignity of others.”

“I believe, however, that s. 1 of the Charter is especially well suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. • I thus conclude on the issue of s. 2(b) by finding that s. 319(2) of the Criminal Code constitutes an infringement of the Charter guarantee of freedom of expression…”

D. Is the child pornography an expression deserving constitutional protection? • R. v. Sharpe [2001] • “The law challenged in this appeal engages mainly the justification of self-fulfilment. Child pornography does not generally contribute to the search for truth or to Canadian social and political discourse. Some question whether it engages even the value of self-fulfilment, beyond the base aspect of sexual exploitation. The concern in this appeal, however, is that the law may incidentally catch forms of expression that more seriously implicate self-fulfilment and that do not pose a risk of harm to children.”

“As to the contention that prohibiting possession of expressive material does not raise free expression concerns, I cannot agree. The right conferred by s. 2(b) of the Charter embraces a continuum of intellectual and expressive freedom -- "freedom of thought, belief, opinion and expression". The right to possess expressive material is integrally related to the development of thought, belief, opinion and expression. The possession of such material allows us to understand the thought of others or consolidate our own thought. Without the right to possess expressive material, freedom of thought, belief, opinion and expression would be compromised. Thus the possession of expressive materials falls within the continuum of rights protected by s. 2(b) of the Charter.”

E. What about the commercial speech? • Ford v. Quebec [1988] • “It is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display, or more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.”

“In our view, the commercial element does not have this effect. Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter…. Over and above its intrinsic value as expression, commercial expression which… protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self‑fulfillment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.”

Irwin Toy Ltd. v. Quebec [1989] • “Does the advertising aimed at children fall within the scope of freedom of expression? Surely it aims to convey a meaning, and cannot be excluded as having no expressive content. Nor is there any basis for excluding the form of expression chosen from the sphere of protected activity… ”

F. Is picketing a form of expression? • Retail, Wholesale and Department Stores Union, Local 580 v. Dolphin Delivery Ltd.[1986] • “There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line.”

“Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.”

Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. [2002] • “Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter. This Court's jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts”

III Analytical Framework • A. infringement • Irwin Toy Ltd v. Quebec • “Having found that the plaintiff's activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity… If the government's purpose, then, was to restrict attempts to convey a meaning, there has been a limitation by law of s. 2(b) and a s. 1 analysis is required to determine whether the law is inconsistent with the provisions of the Constitution. If, however, this was not the government's purpose, the court must move on to an analysis of the effects of the government action.”

“If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression…”

“Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.”

“In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.”

B. Justification: Contextual Analysis • Thomson Newspapers Co. v. Canada • “I agree …that it is difficult to draw a sharp distinction between legislation in which the state is the antagonist of the individual, and that in which it is acting as a mediator between different groups. Indeed, nothing in these cases suggests that there is one category of cases in which a low standard of justification under s. 1 is applied, and another category in which a higher standard is applied.”

“In my view, these cases further the contextual approach to s. 1 by indicating that the vulnerability of the group which the legislator seeks to … that group's own subjective fears and apprehension of harm … and the inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy … are all factors of which the court must take account in assessing whether a limit has been demonstrably justified according to the civil standard of proof. They do not represent categories of standard of proof which the government must satisfy, but are rather factors which go to the question of whether there has been a demonstrable justification.”

“Another contextual factor to be considered is the nature of the activity which is infringed. The degree of constitutional protection may vary depending on the nature of the expression at issue... This is not because a lower standard is applied, but because the low value of the expression may be more easily outweighed by the government objective. In this case, the speech infringed is political information.”

What are the legislative objectives? • “The danger of the systematically overreliant voter is suggested in the purpose … as the need for "a rest period" so that the frenzy of polls will die down and voters will be encouraged to forget about the polls and concentrate on issues…. The second purpose of the legislation, to guard against an inaccurate poll which occurs late in the campaign, has nothing to do with a period of repose or reflection. Rather, the purpose is to provide an opportunity for the last opinion surveys on which the voter might base his or her vote to be subjected to public scrutiny. In this way, the voter will have the best information possible about the accuracy of the latest polls, and will not cast a vote without a potentially inaccurate opinion survey having been publicly scrutinized. ”

Are these objective pressing and substantial? • “An examination of this purpose reveals some disturbing assumptions. First, this purpose does not rely on the inaccuracy of any opinion survey results. Rather, it suggests that Canadians will become so mesmerized by the flurry of polls appearing in the media that they will forget the issues upon which they should actually be concentrating. This reasoning cannot be countenanced. Canadian voters must be presumed to have a certain degree of maturity and intelligence. They have the right to consider the results of polls as part of a strategic exercise of their vote. It cannot be assumed that in so doing they will be so naïve as to forget the issues and interests which motivate them to vote for a particular candidate.”

“I am thus unable to perceive, and nor has the government seriously argued before us, that any pressing and substantial objective is served by the existence of a "rest period" for polls prior to the election date. I would, therefore, find that s. 322.1 is not justified under s. 1 according to this objective.”

“Although the overall influence of polls may not have been scientifically established as "undue", I would nevertheless conclude that there is evidence of significant influence of polls on the electoral process and on individual electoral choice. Although the overall effect of these polls may be difficult to discern or predict, this evidence suggests that an uncertain number of voters might be influenced in their electoral choice by this false information. The pernicious aspect of an inaccurate poll is that no voter could discover its true nature because of the lack of response time.”

“There is also evidence of public and governmental concern to guard against inaccurate polls which are published late in the campaign and which thus cannot be subject to the same scrutiny as polls published earlier in the election. • …I conclude that the purpose of guarding against the possible influence of inaccurate polls late in the election campaign by allowing for a period of criticism and scrutiny immediately prior to election day, is a pressing and substantial objective.”

Was there a rational connection? • “The three-day blackout period on the publication of polls will serve, to some degree, the purpose of preventing the use of inaccurate polls by voters. The blackout period gives critics the opportunity to assess the methodological information made available by the pollster and to question the validity of the poll on that basis. To that extent, the ban is rationally connected to the purpose of the legislation…”

Minimal impairment? • “Section 322.1 does not minimally impair the right to freedom of expression guaranteed in the Charter and is, therefore, not justified under s. 1. Indeed, it is my view that s. 322.1 is a very crude instrument in serving the purpose articulated by the government in this case. ”

“The provision in this case is also overbroad and underbroad in relation to the purpose of the legislation. The ban imposed in this case is overbroad because it prohibits in the final three days of an election campaign the publication and use by voters of all those polls which would meet the usual standards of accuracy. Its underbreadth has already been mentioned in the rational connection analysis: the blackout period may not adequately disabuse voters of an erroneous impression left by a poll which did not disclose its methodology to critics or the public. Indeed, as a matter of logic, the utility of the ban as a period of response and criticism is gravely undermined by the failure to require the publication of methodological information. ”

“In assessing whether this provision is narrowly tailored, the obvious alternative which Parliament could have adopted was a mandatory disclosure of methodological information without a publication ban…The failure to address or explain the reason for not adopting a significantly less intrusive measure which appears as effective as that actually adopted weighs heavily against the justifiability of this provision. ”

Final Balance • “My view is that, given the state of the evidence before the Court on this issue, the postulated harm will seldom occur. The benefits of the ban are, therefore, marginal. The deleterious effects are substantial. First, the ban sends the general message that the media can be constrained by government not to publish factual information. Second, it interferes with the reporting function of the media with respect to the election, which is an interference with the freedom of the media when its participation is most crucial to self-governance. These are the deleterious effects as they relate to the freedom of the speaker…”

“But third, the ban denies access to electoral information which some voters may consider very useful in deciding their vote. If they feel that their votes are better informed as a result of having this information, then the ban not only interferes with their freedom of expression, but with their perception of the freeness and validity of their vote. This undermines the very faith in the electoral process which the government suggests is one of the rationales for this ban. • In my view, the doubtful benefits of this ban are outweighed by its significant and tangible deleterious effects and therefore is not justified under the third stage of the proportionality analysis. The very serious invasion of the freedom of expression of all Canadians is not outweighed by the speculative and marginal benefits postulated by the government. ”

The United States Supreme Court has developed the dichotomy between content-based restriction and content-neutral restriction. Is the framework adopted by the Supreme Court of Canada somewhat different from this dichotomy? If it is, which approach is more appropriate?

In considering s. 1 analysis, the Supreme Court of Canada emphasizes the contextual factors including the type of regulation and the value of speech involved. Is this an appropriate approach?

CONSTITUTIONAL LAW 37 FREEDOM OF EXPRESSION I: GENERAL FRAMEWORK