Canada’s Assault on Free Speech
The Online Harms Act is an extension of a flawed philosophy.
In late February, Justin Trudeau’s Liberal Party introduced in the Canadian Parliament the long-awaited Online Harms Act, which provides the government with extensive and explicit authority to regulate “content that foments hatred.”
With the stated goal of “enabl[ing] persons in Canada to participate fully in public discourse and exercise their freedom of speech online without being hindered by harmful content,” the bill focuses on a standard of “detestation”—restricting expression if it generates “detestation or vilification” of people of a protected class, such as race, religion, gender identity, and sexual orientation.
Like most other Western countries, Canada already has restrictions in place against “hate speech,” but the Online Harms Act vastly furthers their scope. At present, a Canadian who “willfully promotes hatred against any identifiable group” is liable to serve up to two years in prison and one who commits the nebulous crime of “promot[ing] genocide” via speech may serve up to five years. Under the proposed bill, these sentences grow, respectively, to five years and life in prison.
Moreover, the bill would establish a commission of politically appointed bureaucrats, who are per the bill’s text, “not bound by any legal or technical rules of evidence.” Inspectors designated by the Commission may, without notice, “enter any place in which they have reasonable grounds to believe that there is any document, information, or other thing” that may prove an individual “willfully promote[d] hatred.”
Although Trudeau’s Liberal Party does not hold a majority in the House of Commons, the bill is still likely to pass along with the support of the New Democrats. The two parties entered into a confidence-and-supply agreement in 2022, and the New Democrats’ leader Jagmeet Singh indicated at least tentative early support for the bill.
The bill has, rightly, come under concerted criticism. Andrew Coyne in The Globe and Mail called it “breathtaking in its recklessness.” Famed novelist Margaret Atwood described it as “Orwellian,” tweeting that “the possibilities for revenge false accusation + thoughtcrime stuff are sooo inviting.” The idea of extended prison sentences for speech is so draconian that it is hard to believe that Canada is proceeding with it—and ignoring the mountain of criticism from free speech advocates.
To understand the bill, and the mindset of Canada’s government, it is worth having a grounding in Canadian jurisprudence and recognizing that the bill follows from a reigning philosophy of speech that Americans may find peculiar. Indeed, Canada’s Charter of Rights and Freedoms, the equivalent to the U.S.’ Bill of Rights, begins with a qualification—namely, that the rights listed therein are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In a pivotal case in 1990, R. v. Keegstra, Canada’s Supreme Court ruled that Parliament could make reasonable restrictions on rights if its objective is to guarantee a free and democratic society. As Chief Justice Brian Dickson wrote at the time, “Parliament has recognized the substantial harm that can flow from hate propaganda.” Anticipating his critics, he continued, “The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial.”
Considering the trajectory of Canadian law regarding free speech, then, the Online Harms Act is not a departure from an historically speech-protective society but a continuation of Canada’s tendency to subordinate free expression to other values. The extremes of the Online Harms Act, however, call into question not only the wisdom of Canadian jurisprudence, but the entire legal tradition that permits such sweeping exceptions to free speech.
Americans are familiar with the robust protections of speech that are at the very top of the Bill of Rights. The U.S.’ legal tradition has evolved towards extremely narrow exceptions to those principles, with Brandenburg v. Ohio (1969) effectively limiting the exception to speech that advocates an “imminent lawless action.”
But in Western Europe, like Canada, a different speech standard has largely taken root. It can perhaps be understood most clearly in the case of Germany. The German Basic Law—the constitution of Germany—was adopted with the approval of the occupying Western Allies in the years following World War II and with the Holocaust fresh in its authors’ minds. It begins with a passionate defense of the concept of dignity. As a means of ensuring this promised and sacred human dignity, the Basic Law guaranteed freedom of expression—but with caveats. In particular, when free speech conflicts with human dignity, the Basic Law holds that the state can and must restrict the speech: “These rights [to free expression] shall find their limits … in the right to personal honor.”
This conflict was put to the test in a 1987 case before Germany’s highest court. In that case, a cartoonist depicted the Bavarian Prime Minister Franz Josef Strauss as “a pig engaged in sexual activity.” The cartoons included a pig which “[bore] the facial features” of the Minister-President “copulating with a pig dressed in judicial costume,” among others. The court ruled against the cartoonist and his artistic freedom. The cartoons, the court ruled, “far exceed[ed] the limits of the acceptable.”
Most Western countries currently embrace a tradition more like that of Germany than that of the United States. Scotland’s new hate speech law, for instance, criminalizes “stirring up hatred” against a group of people. Ireland’s pending law bans “communicat[ing] material… that is likely to incite violence or hatred against a person or a group of persons.” The Dutch Penal Code holds liable for imprisonment any person who “intentionally makes an insulting statement” or “incites hatred or discrimination” against a person because of their race, religion, sex, sexual orientation, or disability. And in Sweden, a person who “expresses contempt for a population group” can be sentenced to up to two years in prison.
That tradition may be rooted in noble sentiments (it is hard to imagine a more noble sentiment than working strenuously to keep Nazism from happening again), but it has real limits. It is based in the idea that free speech is a sort of negotiable good, which can be kicked aside to make way for other democratic values like equality and dignity. But if you believe that, then, whenever democracy appears to be vulnerable, free speech almost inevitably gets the short end of the stick.
What these countries fail to appreciate is that free speech necessarily retains a unique status in a democratic society, one that cannot be subordinated to other values. As free speech theorist Alexander Meiklejohn once wrote, “When men decide to be self-governed, to take control of their behavior, the search for truth is not merely one of a number of interests which may be ‘balanced,’ on equal terms, against one another. In that enterprise, the attempt to know and to understand has a unique status, a unique authority, to which all other activities are subordinated.”
Free expression is the mechanism by which citizens in a democracy seek this knowledge and understanding that Meiklejohn references. A democracy, by definition, derives its consent from the people. When the government gets in the business of regulating ideas and opinions, the citizenry can no longer debate and deliberate freely, and, thus, the basis of democracy crumbles.
The more a government regulates ideas, the further that country drifts from democracy, even if its purported goal of regulating speech is to further “a free and democratic society,” as Canada claims to do. Threatening a person with life in prison for voicing an opinion the Parliament condemns is not a positive step toward political equality; it is a terrifying leap toward despotism. Not only is the current trajectory of Canadian governance indicted by the Online Harms Act but so is the entire legal tradition on which it is based.
Jeffrey Cieslikowski is a researcher focused on free expression.
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This is a great piece. I've been following the steady march of anti-speech laws in Europe. As an American, I find it abhorrent. America is flawed, with many social problems, but in my own humble opinion, it is not a stretch to say that America is the greatest country in the world due to the Bill of Rights. Of course these rights have been protected unevenly, with serious disparities. But our freedom of speech is one thing that seems to have maintained its power. It is absolutely wild to me that I could go to prison in many places in Europe for simple offensive speech. It wouldn't be a problem for me personally because I don't engage in offensive speech; I'm not even on any social media platform. Yet is chills me to hear about this Orwellian march of speech repression. Of course, the central question is: who decides?
The author might have buried the lede here, which I think is fully contained in the last two paragraphs. While free speech is important, and is in the US a primary value, the biggest concern to me has always been the overwhelmingly difficult problem of a government deciding among different views and expressions, using its foundational police power to police opinions.
That includes vile and offensive ones. It's easy enough for each of us to determine what's vile or offensive for ourselves, and there are areas where there is a large majority who agree that certain opinions are terrible to hold in the modern world. But in a truly functioning democracy, there is no such thing as a universal opinion, a reality that may get lost in our relentless focus on eliminating discrimination.
As a gay man it's taken me a lifetime to realize that some people are never going to accept homosexuality. Yet I live in the same country as they do, and we share many other values of importance. I can disagree politely, even pleasantly, and sometimes with good humor, but I have found many people are immune from whatever charm I might possess. In the end, I would be foolish not to accept any good faith belief they hold (even what I consider an uninformed one), just as I would hope they would accept my own good faith beliefs.
That's not the kind of conflict government is in any position to judge or enforce. The same principle is at work in the First Amendment's other provisions about religious differences. It's not that government is bad, only that it is less capable of applying the governmental restraining, and quite ancient concept of due process to certain kinds of disputes that are entirely personal. Government is not good or competent at everything, and this seems to be an absolute limit.
This doesn't undermine any of the author's other very strong arguments. But in a world where governments have been given pretty free rein, I think these guardrails tend to fade into the background, when they are today more important than ever.