Double Aspect

I have not been posting over the last several months, due to overwork and resulting exhaustion. But I have not been altogether inactive, and have managed to have a few things published that I would like to highlight, however belatedly.

In this post, I begin with a JOTWELL review of Camden Hutchison’s excellent article “Freedom of Expression: Values and Harms“. In a nutshell ― the JOTWELL post has a more extensive summary, though it is still quite short ― Professor Hutchison argues that the Supreme Court’s reliance on the values of the search for truth, democratic participation, and self-realisation in its freedom of expression jurisprudence has served to limit this fundamental right in a way that is quite at odds with its constitutional importance. He calls for freedom of expression to only be restricted when a meaningful, demonstrable harm would likely result from failure to do so.

I do have some objections to Professor Hutchison, especially to the way in which he applies the notion of harm to hate speech, on which his analysis is focused. As long-time readers of this blog will know, I believe that the harm is not in hate speech at all. Nonetheless, I conclude that

Hutchison’s arguments have the merit of calling attention to the subjectivity of the SCC’s current approach to the justification of limitation on the freedom of expression, and indeed of other rights. His call for a more objective approach is no less important ― perhaps all the more so ― even if there is reason to doubt that his own proposal is objective enough. So is the focus on the costs and benefits to actual people rather than to abstract values. And so too is Hutchison’s insistence on real evidence to support the government’s claim that it has good reason to limit constitutional rights. … Hutchison has done the Canadian legal community, and indeed the Canadian public, a considerable service. He has shown that the SCC’s long-dominant approach to freedom of expression cases is only a pretense of a defense of this right. In truth, freedom of expression in Canada is a privilege for those whom the SCC considers sufficiently inoffensive to the values of which some its judges have openly proclaimed themselves the ultimate guardians.

Co-blogger Mark Mancini also likes the article, so he and I have interviewed Professor Hutchison about it for the Double Aspect Pod. Have a listen, if you haven’t already.

While I’m on the subject of the pod: it should now be available to subscribe to wherever you get your podcasts. It should also come out more frequently, if not quite regularly, thanks to the kind help of Keith Pridgen, who has volunteered to be our editor. So subscribe, and don’t miss the next episode, which is already in the works!