Debates about the regulation of different forms of speech – including hate speech, commercial advertising, election spending, and defamation, raise broader questions about the protection of free speech in contemporary public discourse. How should the courts and other public actors respond when the basic assumptions underlying the commitment to freedom of expression -- about the rationality of discourse and the scope of communicative engagement – seem increasingly to be eroded or undermined, not simply in limited situations, of the sort described by John Stuart Mill (the fiery speech to farmers outside the home of the corn merchant) or Oliver W. Holmes (the false yell of fire in a crowded theatre), but by more systemic changes in the character of public discourse?
In the last half of the 20th Century, two developments in the character of public discourse raised significant challenges for freedom of expression doctrine. The first was the rise of commercial advertising – a form of speech that seemed to be designed to influence its audience non-cognitively (the problem of manipulation). The problem was not just that commercial advertising seemed to be everywhere, but more significantly that it became the model for other forms of expression, including political speech. The second was the domination of public discourse by a relatively small group of speakers and a narrow range of perspectives – resulting from the concentration of media ownership and the high cost of access to the media (the problem of unequal access).
While ‘manipulation’ and ‘inequality’ are often described and responded to as separate problems, they might better be viewed as two aspects of a more general problem. Commercial advertisements have a manipulative impact only because they so completely dominate public discourse. The overwhelming number of commercial messages that confront us daily reduces the space for critical viewing of individual ads. There are so many ads that it is simply not possible for the audience to reflect on the claims or associations of each. These ads simply wash over us. The domination of public discourse by advertising also means that the unnatural images or absurd associations of a particular ad seem unexceptional. Because the principal channels of public discourse were controlled by commercial interests and carried only ads and advertising-funded programming, the underlying message of advertising, that self-realization is achieved through consumption, was an almost unchallengeable cultural assumption.
A concern that certain messages may dominate discourse and overwhelm or displace (‘drown out’) other views was more explicit in the debate about the regulation of political or campaign advertising. Inequality in election spending, though, is only a problem because of the ‘advertising’ form of most campaign expression, which is composed of images and slogans with little evaluative content. Election spending limitations, which do not restrict the message or form of expression but only the amount of money that can be spent in support of a particular message, are supported on the ground that unlimited spending will allow the messages of some candidates to ‘drown out’ those of other candidates. How is it, though, that the message of the better-financed candidate ‘drowns out’ the message of his or her competitors? The competitor’s message can still be heard, even if less often. If greater volume has an impact (if repetition of messages makes a difference), it is because contemporary political discourse has adopted the form of commercial advertising, seeking to influence the audience viscerally or non-cognitively.
Restrictions aimed at either the manipulative impact of expression or the dominance of particular messages are partial responses to a systemic problem. Inequality in election spending is a problem because of the ‘advertising’ form of most campaign expression, which is composed of images and slogans with little evaluative content. Commercial advertisements have a manipulative impact only because they so completely dominate public discourse. Yet the courts in Canada, and elsewhere, have treated manipulation and inequality as separate problems, each representing a distinct and limited failure in the ordinary operation of public discourse. A commitment to freedom of expression, at least as a judicially protected constitutional right, rests on a belief that, in the absence of special circumstances, individuals should be permitted to express themselves and to assess the expression of others. Manipulation then must be viewed as an identifiable deviation from the ordinary conditions of free and rational public discussion and inequality must be viewed as a particular unfairness in electoral competition that can be addressed by setting basic ground rules that level the ‘playing field’.
The emergence of the Internet, as a significant conduit for public and personal communication, seemed to lessen public concerns about media concentration and unequal access to communicative resources. The Internet (its many platforms) offers a low-cost way to communicate with a potentially large audience. The Internet is an accessible means of communication that has enabled different individuals, with similar concerns, to connect and organize, but it has also contributed significantly to audience fragmentation. While it might be said that more views are expressed and available through the Internet, it appears that most Internet users expose themselves to a relatively narrow range of opinions that tend to reinforce the views they already hold. Despite all their failings, newspapers and broadcasters provided a common space (served as part of a public sphere) where a large and sometimes diverse group of readers or viewers might be exposed to different views.
The Internet is a remarkable source of information that can be easily and quickly accessed. The accessibility (and formal equality) of the Internet has led many to argue against any form of Internet speech restriction. At the same time, the Internet seems to be an effective vehicle for speech that appeals to the emotional or visceral and is intended to play on, or reinforce, the audience’s prejudices. The absence of (traditional media) filters means that groundless assertion and personal attacks are unimpeded. More subtly, the Internet seems to encourage the distorted “democratic” idea that all opinions are equally worthy of respect – regardless of whether they have any factual grounding. The Internet did not create this commercial/consumer model of speech and engagement, but it has advanced it considerably. Audience fragmentation (and the ‘echo chamber effect’), the absence of filters and systems of accountability, as well as speaker remoteness or anonymity, have contributed to the decline of reason-based argument and thoughtful, respectful, engagement. When there is engagement on an issue, it is often confrontational and uncivil, and not concerned with persuading others or understanding their views.
In their Charter of Rights jurisprudence, Canadian courts have sometimes upheld limits on freedom of expression without explaining why the freedom’s defining faith in the independent and rational judgment of the individual does not apply in the particular circumstance. Instead, in these cases, they have adopted a behavioural approach – asking simply whether the expression ‘causes’ harm. When defining the scope of freedom of expression, the courts regard the individual as free and rational, as an autonomous agent capable of giving direct to her life. In expressing herself, an individual gives voice to her thoughts and feelings and provides ideas and information for other individuals to consider, and to adopt or reject. However, when the courts move from defining the scope of the freedom (under s.2(b) of the Charter) to assessing the freedom’s limits (under s.1), they seem to shift to a behavioural or causal discourse. In their limitations analysis (s.1), the courts seem to rely on a different image of the individual. The individual is seen as irrational, manipultable, directed by unchosen preferences, urges, and desires. Expression is seen as a form of action that impacts on the individual, sometimes causing harm or sometimes causing him to engage in harmful behaviour. When confronted with issues of manipulation, intimidation, and communicative power, the courts’ faith in the freedom and rationality of the individual collapses. This shift to a behavioural discourse at the limitations stage of the courts’ analysis occurs without any reconsideration of the assumptions that underlie their initial account of the value and scope of freedom of expression. When expression takes place in a context in which individual judgment seems distorted or constrained, the courts have found it easier to label and treat the expression as a form of action that ‘impacts’ the individual, rather than to isolate the exceptional character or circumstances of the expression. Because ‘causation’ is difficult to establish, the courts have either fallen back on ‘common sense’ or deferred to legislative judgment to complete the causal link between expression and harm.
If the courts support the restriction of potentially harmful expression without explaining why the judgment of the audience is not to be trusted in the particular circumstance, and without acknowledging the costs of removing certain matters from the scope of public discourse, the right to free expression will have ceased to play any meaningful role in their decision-making. Freedom of expression has little substance if our trust in the ‘autonomous’ judgment of the individual is the exception (a condition that must be established). It has no substance if it is ‘protected’ only when we agree with its message or consider its message to be harmless. The problem with this approach to free speech protection – an approach that formally acknowledges the premises of free speech but supports limits on speech that carries a ‘harmful’ message -- is that it puts the whole free expression edifice at risk. The alternative, though, seems to be to carry on as if we live in a world of rational discourse and open engagement. Ignoring these changes in the character of public discourse may have considerable costs.