Free Speech Caution Tape: Can We Trust Those Lines?

Posted October 1, 2020
By John Degen

An easy mistake to make in any discussion of freedom of expression is to believe there is absolute certainty anywhere in the definition of that term. If you are jumping into a debate on free speech certain you know exactly what you believe (plus all the implications of that belief), chances are you’ve grossly over-estimated your own position. If you’re doing that on Twitter, either get your thumbs familiar with the block/mute functions, or free up a lot of time for an epic Twitter fight unlikely to solve anything for anyone.

In my work world, there have always been fairly clear lines drawn about the limits of speech. The law and the courts play the central role in delineating out of bounds. Here are a couple of crucial bits from the Book and Periodical Council’s Freedom of Expression Committee’s policy statement:

We accept that courts alone have the authority to restrict reading material, a prerogative that cannot be delegated or appropriated…

We recognize court judgments; otherwise, we oppose the detention, seizure, destruction, or banning of books and periodicals…

These are helpful parameters, but they can’t realistically be approached as though they have much more solidity than plastic caution tape. If you’re not cautious with the caution tape, you can easily find yourself on the wrong side of it. And let’s face it, some folks want to be on the wrong side of the free expression caution tape specifically because they believe the tape is incorrectly positioned, or even that caution tape should never be used around speech.

As set in stone as it can seem sometimes, the law around expression is actually quite fluid. You interpret it one way, I interpret it another; and when there’s room for interpretation, there’s room for being wrong. The courts officially interpret the law for both of us and — guess what — we can’t both be right. 

Case in point, a couple of recent Supreme Court of Canada decisions with implications for anti-SLAPP legislation.

Some quick background. The Centre for Free Expression is a vocal leader in support of anti-SLAPP legislation, laws (generally at the provincial level) meant to discourage ‘strategic lawsuits against public participation’ or SLAPPs. A SLAPP is described as a lawsuit brought specifically to weigh down a defendant with the work and costs of legal defence, which then discourages them from continuing to criticize the complainant. Think of a deep-pocketed corporation going after an individual activist to keep them from sticking out a public campaign against that corporation. Polluter vs. environmentalist. Monopoly vs. anti-trust activist. That kind of thing. 

Anti-SLAPP laws are intended to encourage the courts to privilege the speech rights of the defendant where appropriate, and dismiss lawsuits that don’t make the grade. The organization I work for, The Writers’ Union of Canada, believes anti-SLAPP laws are in the public interest, and are of particular importance to working writers who have often been targeted with lawsuits intent on silencing them.

But who decides whether a lawsuit is actually a SLAPP? And when is that decision made? 

In 1704604 Ontario Ltd. v. Pointes Protection Association, we see the Supreme Court of Canada agreeing unanimously that a lawsuit brought against a local environmental protection group, the Pointes Protection Association in Sault Ste. Marie Ontario was indeed a SLAPP. SCC Justice Suzanne Côté dismissed the action broadly on the basis that protecting the expression of the Pointes Protection Association was more important than the claims of damage from 1704604 Ontario Ltd. The lawsuit cannot proceed.

But in another decision released the same day, the very same Supreme Court went in a completely different direction. In Bent vs. Platnick the SCC was split 5-4, and the case was declared not a SLAPP, meaning the original lawsuit could go forward. The sticking point in this case, it seems, was defamation, a long-held exception to free expression. The court majority found that the potential harm to the complainant’s reputation from the speech act in question was more important than protecting the defendant’s freedom of speech. Importantly, the SCC did not decide on the question of whether or not the complainant was defamed. That question is to be examined now as the case moves forward, starting again in the lower courts.

The details of these two cases are quite interesting, and I encourage anyone with a passion for legal technicalities to dig right in at the links above, and to read Justin Safayeni’s excellent summary on this very blog. But the point I’m making with this posting is not whether I think the court was right or wrong in their decisions. I’m just reminding you, dear reader, that free expression is not an abstract concept divorced from consequences. I whole-heartedly support anti-SLAPP legislation, and I also have a pretty good idea of how much time and money was likely involved in taking these SLAPP or No-SLAPP questions through two lower courts and up to the SCC.

However strongly you feel about your right to free expression, you should also cultivate a solid understanding of the territory enclosed by the caution tape. It is by no means a fence firmly rooted in settled law. What you interpret as a truthful speech act can very easily look to someone else like defamation, libel, or even hate speech. And the courts do have jurisdiction over those things.