Are demands that speech not be punished just a childish attempt to escape consequences?

A recent piece by Max Fawcett in the National Observer invokes a number of common tropes about freedom of expression. One, which I address here, is that when people are punished for what they have said or written, they have “not been denied that right. But neither [have they] been excused from the potential consequences associated with exercising it”. The implication is that it is just as absurd ― perhaps childish ― to try to escape punishment for one’s words as it is to escape the consequences of one’s actions.

The context of Mr. Fawcett’s piece is a dispute between Jordan Peterson and the Ontario College of Psychologists, which ― like pretty much everything else Dr. Peterson-related ― I don’t care about. But this response to all manner of speech-related controversies is widespread. It is, in these terms, particularly favoured on the social justice-minded left: see, for instance, the comments of a man whom the BBC describes as engaged in “publicly shaming” people for real or perceived transgressions against progressive propriety and “ultimately getting the people ‘cancelled'”: “These times of doing whatever you want without consequences are over”, the BBC quotes him as saying. But, as Cathy Young points out just today in The Bulwark, the political right, especially in the United States, is also quite willing to visit retribution on those who say and write things it doesn’t like, even as it poses as a defender of free speech.

Why is the claim that punishment for the expression of ideas is just “consequences” and, as such, must be accepted by any reasonable adult wrong? Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences. And it is only, I think, with freedom of expression that anyone would dispute this. Imagine saying “you’re free to go to Church on Sunday, but you must accept the consequence of being fined for it”; or, “you’re free to form a union, but you must accept that you’ll be jailed if you do”. This is arrant nonsense, and everyone will instantly recognize that it is just that. The freedom of expression is no different: it is also, of course, an immunity from at least some kind of consequences attaching to its exercise.

Now, the real issue ― and again, this is true of freedoms other than that of expression ― is what consequences, imposed by whom, are off-limits. At one end of the spectrum, almost everyone agrees that it’s wrong for government to jail people for what they say, at least in most circumstances; it’s wrong to fine people for going to this or that house of worship, or to beat them up for holding a peaceful protest in a public square. At the other end, contrary to the caricature prevalent in social-justice circles, very few people, if anyone really, think that pure criticism is a forbidden consequence for speech. Again, other freedoms are mostly similar, though there is, it seems to me, a tendency in some quarters to view any criticism of (some) religious beliefs as categorically wrong; indeed, there is a perplexing overlap between the people who believe this and those who argue that even state-imposed or -backed punishment for speech is just “consequences”.

The difficult questions, when it comes to expression, are of two main sorts. First, what are the exceptions to the general principle that the state should not punish people for what they say? I don’t think anyone who accepts the legitimacy of the state denies that there are some exceptions. Fraud is committed through speech or writing, for example. But there are issues on which reasonable people disagree in good faith; hate speech is a classic example. I’m inclined to say, though, that this category of hard questions is actually a comparatively narrow one.

The bigger and perhaps more socially provocative one has to do with the vast middle part of the spectrum between state-imposed punishment on the one hand and pure criticism on the other. Does an employer have the right to fire an employees for their politics? Can a social media platform censor a story it considers to be disinformation, or indeed ban a user inclined to share such stories? Should people be able, not just to criticise someone who they think has crossed a line that should not be crossed in polite society, but to seek to get them fired from their job? How about doxxing them?

What makes these questions even more fraught is that each of them, in truth, is at least two questions, if not more. Does an employer have a legal right to fire an ideological dissident? Does an employer have a moral right to do it? And, perhaps, even if there is a moral right, should a good employer forbear from exercising it? And so on. Far too many people confuse the legal and moral issues, or think that the law should precisely track (their) morality, but here as elsewhere there may be perfectly good reasons for law and morality to diverge.

This is the stuff the “culture war” about freedom of expression is largely about; the legal debates, less so, but increasingly in the last few years. There are genuinely difficult questions there. Questions about line-drawing, for example, such as when, if ever, what would be perfectly legitimate criticism coming from one person becomes a morally reprehensible pile-on when engaged in by a large group. Questions about clashing rights, such as those that arise in relation to employers or social media, who have expressive interests of their own to set up against those of employees and users. Questions about the nature and relevance, or not, of market competition and monopoly. And no doubt many others.

When such difficult questions are debated, as they should be, nobody is served by amalgam, clichés, and misdirection. The tired claim that punishment for speech at the hands of the state ― or for that matter at the hands of an online mob ― is just “consequences” is all of these things. Yes, of course a punishment is a consequence, but if we believe in freedom of expression at all, we are committed to the principle that not every consequence that can be visited on a person for what he or she says or writes is just. What we want to know is what consequences are just, and when. Let’s talk about that.

I will try to address a particular set of questions related to this, also based on Mr. Fawcett’s piece ― specifically, on his claim that “[t]here is nothing unjust or illiberal about professional organizations enforcing codes of conduct for their members” ― in a separate post. Stay tuned.

Bad Taste

Overzealous prosecutors in Québec charge the author and publisher of a novel with child pornography for describing a rape

Québec has a bit of a history when it comes to ludicrous prosecutions of people for their exercise of their freedom of expression. And I’m not talking about Maurice Duplessis’s time here. What I have in mind are the cases of Rémy Couture, a make-up artist who was put on trial for having produced some (admittedly gruesome) pictures and videos, and Matthieu Bonin, charged with hate speech (!) for an online rant apparently suggesting that a shooting at the National Assembly would be a good idea, though these charges were eventually dropped. Both of these took place earlier this decade. And now, they have been joined by the prosecution, on child pornography charges, of Yvan Godbout and Nicolas Doucet, respectively the author and publisher of a horror novel that depicts, on one of its 270 pages, the rape of a child.

Now, I haven’t read the novel (which doesn’t exactly sound like the sort of novel I’d read, anyhow). Since the publishing house is now busy tracking down all existing copies to hand them over to the provincial police, and worrying whether anyone who’s bought one already might be charged, there is no chance that I, or anyone, will. But La Presse quotes both a representative of the publisher and another writer as saying that the scene that forms the basis of the prosecution serves to expose the rapist as a “monster”, and that he is eventually “harshly punished”. It is very difficult to believe that a fair-minded reading of such a scene ― again, one scene in a novel ― would fit under the Criminal Code‘s definition of child pornography as “written material … that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence” or “written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”.

Moreover, the Criminal Code provides a defence to any person who “has a legitimate purpose related to … art; and … does not pose an undue risk of harm to persons under the age of eighteen years”. The Supreme Court has explained, in R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326, that this requires “an objective connection between the accused’s actions and his or her purpose, and … an objective relationship between his or her purpose and one of the protected activities”, [60] in this case art. Relying on what is said in the La Presse report, there seems to be little question that these requirements will be satisfied here. Besides, the Supreme Court added that “this objective assessment does not involve the court in any assessment of the value of the particular … artistic activity in question”. [61] Whether Mr. Godbout wrote and Mr. Doucet published a book that is great art, or even in good taste, is irrelevant. What matters is that the book in question is art, whether good or bad.

As the Supreme Court rightly noted, the courts ― and, it might have added, prosecutors ― are not well placed to be artistic critics. Their role is not to be the censors who will purify society’s morals and elevate its tastes. Lawyers and judges are not qualified for this job, and should not want to take it up even if they were. The risks of arbitrary enforcement, as well as the certainty of chilling effect on artistic freedom, would not be acceptable in a free society. A lawyer ― and any citizen who values his or her and others’ freedom ― can, however, confidently say that the Québec prosecutors’ tendency to go after unconventional artists is in very bad taste indeed.

H/t Maxime St-Hilaire and Patrick Taillon

Platonic Guardians 2.0?

The New York Times has published an essay by Eric Schmidt, the Chairman of Google, about the role of the Internet, and especially, of the exchange of ideas and information that the Internet enables, in both contributing to and addressing  the challenges the world faces. The essay is thoroughly upbeat, concluding that it is “within [our] reach” to ensure that “the Web … is a safe and vibrant place, free from coercion and conformity.” Yet when reading Mr. Schmidt it is difficult not to worry that, as with students running riot on American college campuses, the quest for “safety” will lead to the silencing of ideas deemed inappropriate by a force that might be well-intentioned but is unaccountable and ultimately not particularly committed to freedom of expression.

To be sure, Mr. Schmidt talks the free speech talk. He cites John Perry Barlow’s “Declaration of the Independence of Cyberspace,” with its belief that the Web will be “a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” He argues that

[i]n many ways, that promise has been realized. The Internet has created safe spaces for communities to connect, communicate, organize and mobilize, and it has helped many people to find their place and their voice. It has engendered new forms of free expression, and granted access to ideas that didn’t exist before.

Mr. Schmidt notes the role online communication has played in enabling democratic protest around the world, and wants to reject the claims of “[a]uthoritarian governments  … that censorship is necessary for stability.”

But his response to these claims is not just a straightforward defence of the freedom of expression. “The people who use any technology are the ones who need to define its role in society,” Mr. Schmidt writes. “Technology doesn’t work on its own, after all. It’s just a tool. We are the ones who harness its power.” That’s fair enough, so far as it goes. Mr. Schmidt warns against “us[ing] the Internet exclusively to connect with like-minded people rather than seek out perspectives that we wouldn’t otherwise be exposed to,” and that is indeed very important. But then the argument gets ominous:

[I]t’s important we use [the Internet’s] connectivity to promote the values that bring out the best in people. … We need leaders to use the new power of technology to allow us to broaden our horizons as individuals, and in the process broaden the horizons of our society. It’s our responsibility to demonstrate that stability and free expression go hand in hand.

It’s not that I’m against the idea that one should act responsibly when exercising one’s freedom of expression (or that one should just act responsibly, period). But is the responsibility of a speaker always to foster “stability” ― whatever exactly that is? And to whom ought we “to demonstrate that stability and free expression go hand in hand”? To the authoritarians who want to censor the internet? Why exactly do we owe them a demonstration, and what sort of demonstration are they likely to consider convincing? Last but not least, who are the leaders who are going to make us “broaden our horizons”?

Mr. Schmidt has a list of more or less specific ideas about how to make the internet the “safe and vibrant place” he envisions, and they give us a hint about his answer to that last question:

We should make it ever easier to see the news from another country’s point of view, and understand the global consciousness free from filter or bias. We should build tools to help de-escalate tensions on social media — sort of like spell-checkers, but for hate and harassment. We should target social accounts for terrorist groups like the Islamic State, and remove videos before they spread, or help those countering terrorist messages to find their voice.

He speaks “of leadership from government, from citizens, from tech companies,” but it is not obvious how citizens or even governments ― whom Mr. Barlow taunted as the “weary giants of flesh and steel,” powerless and unwelcome in cyberspace ― can “build tools” to do these sorts of things. It is really the other sort of giants, the “tech companies” such as the one Mr. Schmidt runs, that have, or at least can create, the means to be our benevolent guardians, turning us away from hate and harassment, and towards “global consciousness,” ― whatever that too may be. Google can demote websites that it deems to be promoters of “hate” in its search results, as indeed it already demotes those it considers to be copyright-infringers. Apple could block the access to its App Store to news  sources it considers biased, as indeed it has already blocked a Danish history book for  featuring some nudity in its illustrations. Facebook could tinker with its Newsfeed algorithms to help people with a favoured peace-and-love perspective “find their voice,” as it already tinkers with them to “help [us] see more stories that interest [us].”

Of course, Mr. Schmidt’s intentions are benign, and in some ways even laudable. Perhaps some of the “tools” he imagines would even be nice to have. The world may (or may not) be a better place if Facebook and Twitter could ask us something like “hey, this really isn’t very nice, are you sure you actually want to post this stuff?” ― provided that we had the ability to disregard the advice of our algorithmic minders, just like we can with spell-check. But I’m pretty skeptical about what might come out of an attempt to develop such tools. As I once pointed out here, being a benign censor is very hard ― heavy-handedness comes naturally in this business. And that’s before we even start thinking about the conflicts of interest inherent in the position of Google and of other tech companies who are in a position of being, at once, the regulators of their users’ speech and subjects of government regulations, and may well be tempted to so act in the former role as to avoid problems in the latter. And frankly, Mr. Schmidt’s apparent faith in “strong leaders” who will keep us free and make us safe and righteous is too Boromir-like for me to trust him.

As before, I have no idea what, if anything, needs to or could be done about these issues. Governments are unlikely to wish to intervene to stop the attempts of tech companies to play Platonic guardians 2.0. Even if they had the will, they would probably lack the ability to do so. And, as I said here, we’d be making a very risky gamble by asking governments, whose records of flagrant contempt for freedom of expression are incomparably worse than those of Google and its fellows, to regulate them. Perhaps the solution has to be in the creation of accountability mechanisms internal to the internet world, whether democratic (as David R. Johnson, David G. Post and Marc Rotenberg have suggested) or even akin to rights-based judicial review. In any case, I think that even if we don’t know how to, or cannot, stop the march of our algorithmic guardians, perhaps we can at lest spell-check them, and tell them that they might be about to do something very regrettable.

Searching Freedom

I have already blogged (here and here) about the debate on whether the output of search engines such as Google should be protected by constitutional guarantees of freedom of expression, summarizing arguments by Eugene Volokh and Josh Blakcman. These arguments are no longer merely the stuff of academic debate. As both prof. Volokh and prof. Blackman report, the U.S. District Court for the South District of New York has yesterday endorsed the position (which prof. Volokh and others defend) that search results are indeed entitled to First Amendment protection, in Zhang v. Baidu. Although I do not normally comment on American judicial decisions, this one is worth looking at, because it both gives us an idea of the issues that are likely to arise in Canada sooner rather than later, and can serve as a reminder that these issues will have to be approached somewhat differently from the way they are in the United States.

Zhang was a suit by a group of pro-democracy activists who were claiming that Baidu, a Chinese search engine, is acting illegally in excluding from the search results it displays in the United States results that have to do with the Chinese democracy movement and a number of topics such as the Tiananmen Square protests, including articles the plaintiffs themselves had written. The plaintiffs alleged that, in doing so, Baidu engages in censorship at the behest of the Chinese government. Legally, they claimed that Baidu conspired to violate and violated their civil rights under federal and state law.

Baidu moved to dismiss, arguing that the constitutional protection of freedom of speech applied to its search results, preventing the imposition of liability. Relying on jurisprudence protecting a speaker’s right to choose the contents of his message, and in particular not to convey a message it did not want to convey (whether a newspaper’s right not to print a reply from a candidate for public office whom it criticized or a parade organizers’ right not to allow the participation of a group they disagreed with), the Court agreed:

In light of those principles, there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation. … The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later). (7)

The search engines’ “editorial judgments” are constitutionally protected, in the same way as the editorial judgments of newspapers, guidebook authors, or any other speakers who choose what message or information to convey.

Nor does the fact that search-engine results may be produced algorithmically matter for the analysis. After all, the algorithms themselves were written by human beings, (8)

says the Court, endorsing prof. Volokh’s (and others’) view of the matter.

The Court makes a couple of other points that are worth highlighting. One is that

search engine operators (at least in the United States and given today’s technology) lack the physical power to silence anyone’s voices, no matter what their alleged market shares may be, (12)

and that an internet user who fails to find relevant information with one search engine can easily to turn to another one. (The matter, really, seems to be not so much “physical power” as monopoly.) Another is that the ads displayed by a search engine might be entitled to less protection than the actual search results, at least insofar as “commercial speech” is less protected than others sorts. Last but not least, the Court finds

no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. … [T]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy.

I find this largely persuasive. Still, we might want to ask some questions. For instance, the point about search engines not being monopolists, and users having alternative means of finding information is only true so long as the users know what it is they are looking for. If one doesn’t know that, say, there are other views about democracy in China than whatever the Communist Party line happens to be, one will not think that something is missing from Baidu’s search results, and one will not try using its competitors to find it. But, of course, the same could be said about partisan media, or other biased sources of information. For all the problems that these create, we still think that the problems that regulating them would cause would be even worse. Perhaps there is something special about the internet that makes this calculation inapplicable ― but, if so, the onus is on those who think so to prove it.

Quite apart from the constitutional issues, there is also the question ― which the Court does not address ― of whether the plaintiffs’ claims could have succeeded anyway. At first sight ― and admittedly I know little about American civil rights legislation ― they do not seem especially plausible. As I pointed out in a previous post on this topic, it is by no means clear that there is, whether under anti-discrimination law or otherwise, “some kind of baseline right to have Google [or another search engine] take notice of you”.

This brings me to the point I wanted to make about the differences between American and Canadian law in this context. As the Supreme Court of Canada held in RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, the Charter does not apply to purely private disputes resolved under common law rules (although its “values” are to be taken into account in the development of the common law). This is in contrast to the situation in the United States, where courts consider themselves bound by the First Amendment even when resolving disputes between private parties. If a case such as Zhang arose in Canada, and the plaintiffs formulated their claims in tort (rather than as violations of, say, the Canadian Human Rights Act), the defendant search engine would not have been able to invoke the Charter‘s guarantee of freedom of expression. This doesn’t mean that the outcome would, or should, be different ― but the route by which it could be reached would have to be.

All Quiet on the Western Front

The confrontation between freedom of expression and protection of individual reputation by the law of defamation is as good an example of interminable global legal trench warfare as any. (Well, except in the United States, where one battle proved largely decisive in favour of free speech.) In Canada, freedom of expression has made some gains since the entrenchment of the Canadian Charter of Rights and Freedoms, but the protection of reputation has proven quite resilient, even scoring a rhetorical victory of its own when the Supreme Court dubbed it a “quasi-constitutional” right ― whatever that means ― last year in Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636. Another battle of this war was recently fought in British Columbia, where the province’s Supreme Court, in Northwest Organics, Limited Partnership v. Maguire, 2013 BCSC 1328  rejected an attempt by defendants to impose additional burdens on plaintiffs for their defamation lawsuits to go forward.

The plaintiffs in Northwest Organics are a group of companies developing a composting facility. The defendants are a group of concerned local residents and activists, who have been campaigning against the building of the facility. The plaintiffs say the reports, pamphlets, and internet materials they have distributed as part of that campaign are defamatory. The defendants say the suit against them is a SLAPP ― strategic litigation against public participation ― intended to silence them.

The defendants sought to have the action dismissed, notably by asking that the Court apply a new test to defamation actions in which the defendant claims there is no genuine issue to be tried. In such cases, the defendants argued, interpreting the rules of civil procedure or the inherent powers of the court in accordance with the Charter value of freedom of expression should lead courts to require plaintiffs to show that the action is worth pursuing, despite the chilling effect it will have on the defendants’ freedom of expression, instead of defendants having to demonstrate that the case is frivolous or that there is no genuine issue to be tried (as is normally the case when a defendant seeks to have an action against dismissed). Plaintiffs could discharge this burden by showing that their claim “(a) is to compensate a significant injury to reputation; (b) has a significant likelihood of success, and (c) is the only practicable response to the alleged defamatory speech” (par. 28), a requirement which the defendants later abandoned.

Justice Savage refused to interpret the Supreme Court Civil Rules or the court’s inherent power in this way. Although, as all parties accepted, they had indeed to be interpreted in accordance with Charter values, such interpretation could not have the effect of changing substantive law. The Rules were enacted pursuant to a delegation of power to make rules with respect to procedure and evidence. A provision that dealt with substantive law would be ultra vires. Similarly, the superior courts’ inherent jurisdiction is meant to safeguard the integrity of the judicial process, but cannot be used to change substantive law. And that is precisely what the defendants were asking the court to do:

… [T]he defendants are proposing a substantive change to the law of defamation, not simply a change in the rules of civil practice. The substantive law, as it now stands, is that once the plaintiff commences its claim by asserting the publication of a defamatory statement, the onus shifts to the defendant to prove truth, to prove fair comment, to prove qualified privilege or to prove responsible publication. If the defendant pleads fair comment, then the burden lies on the plaintiff to prove malice. What the defendants are proposing are not changes to procedural rules that would apply only in the case of SLAPP lawsuits, but changes to the substantive law of defamation that go to the merits of those claims. (Par. 76).

In reality, the defendants seek to get rid of the presumptions of falsity and damage that have been part of the common law of defamation for centuries. “This,” says Justice Savage, “is not so much an incremental change to the common law as a wholesale change, something normally undertaken by the legislature or by higher courts with a full evidentiary record” (par. 80). It is too much for a court to read into the rules of procedure, and in the context of a motion without a full factual record to boot.

I think that Justice Savage is absolutely right. The presumptions that any person deserves a good reputation and is deprived of that right by defamatory publications are crucial to the way in which the law protects reputation ― a “quasi-constitutional” right, according to the Supreme Court’s latest pronouncement on the issue. To get rid of them, or to allow defendants to circumvent them by shouting “SLAPP!”, would effectively destroy the law of defamation ― an outcome which the Supreme Court has diligently (if not always elegantly) laboured to avoid. Indeed, one wonders if it is not precisely because they know this that the defendants here have sought to disguise frontal attack on the law of defamation as a mere procedural skirmish.

The law of defamation survives to fight another battle. But the grinding war between freedom of expression and the protection of reputations is certain to go on.

Personality Issues

First of all, my apologies for the extended silence. At first, it was a lack of interesting topics; but then the worst enemy of blogging, the loss of habit of frequent writing. I will do my best to get back into it now.

I start off by a comment on an interesting recent article by my NYU professor, former National Legal Director of the ACLU, and sometime movie start, Burt Neuborne. In “Of ‘Singles’ without Baseball: Corporations as Frozen Relational Moments,” prof. Neuborne grapples with an issue that has aroused a great of controversy of late: the legal personality and constitutional rights of corporations. (I have a couple of posts on this topic here and here.)

In a nutshell, prof. Neuborne argues that corporate legal personality is a legal fiction, which is very useful for protecting and enforcing the rights of the corporation’s “participants”―mostly, but not only, shareholders. Accordingly, this notional personality can be endowed with constitutional rights insofar as doing so protects the rights of the corporation’s participants. For example, courts rightly recognize that corporations have a right to property, because this recognition protects the property rights of its shareholders; they rightly recognize the corporations’ freedom of speech when that freedom is exercised to communicate about the corporations’ business, because this protects the shareholders’ ability to pursue their legitimate commercial interests; and so on. On the other hand, courts have traditionally refused, and ought to refuse, to recognize corporate rights when doing so would favour some “participants” in a corporation at the expense of others. Thus, conferring on a corporation constitutional protection against self-incrimination would favour managers by allowing them to cover up their misdeeds, to the shareholders’ detriment. And, crucially, allowing a multi-shareholder corporation to spend money to intervene in electoral politics:

Unlike the garden-variety decisions about how to manage the corporate business …  no participant in the corporate enterprise believes that by joining a corporate community he or she has delegated the exercise of his or her First Amendment electoral rights to corporate management. Given the inevitable conflicts of interest within a large multi-shareholder corporate community about which candidate to support in a contested election, it appears inconsistent with [the usual legal principles] to vest a corporate management with a centralized power to use other peoples’ money for political ends.

Thus broad readings of the U.S. Supreme Court’s Citizens United decision, which, controversially, declared unconstitutional restrictions on the ability of corporations to spend money to support or oppose candidates in elections, are misguided. 

This is an elegant argument, much more fine-grained and plausible, and thus interesting, than the categorical rejection of corporate legal personality and constitutional rights which have become popular in some quarters on the left in reaction to Citizens United. But I find it problematic in its own way. For one thing, I wonder whether it makes sense to make the answer to the question whether a corporation has a certain free speech right dependent on its internal structure. For another, I think that prof. Neuborne mischaracterizes the relationship between the rights of the “participants” in a corporation and the corporation itself, at least in the case of electoral speech. Most broadly, I think there is reason to question his rejection of the possibility of meaningfully distinct corporate personality and rights.

First, prof. Neuborne’s theory makes the existence of corporate rights dependent on their potential for advancing or hindering the interests of corporate “participants”―rights should be recognize when they advance the participants’ interests when they are unified, and rejected when the participants’ interests conflict and corporate rights would favour those of some participants over others. This means, as prof. Neuborne acknowledges, that corporations owned by a single shareholder, or presumably by a small group of like-minded shareholders, should have more rights than those owned by large numbers of shareholders who might have diverse opinions and interests. A public corporation whose shares are widely held would not have the right to spend on supporting candidates for an election―but the same corporation, if it bought out and taken private, would presumably have that right in the next election, as there is no longer a possibility for conflict among its shareholders. This strikes me as implausible. Rights, we generally think, are universal, if they exist at all.

Second, I don’t think that recognizing corporate speech rights, including the right to intervene in electoral politics, amounts to “delegat[ing] the exercise” of these rights from the shareholders and other corporate “participants” to management. Shareholders remain free to exercise these rights on their own, independently from and contrary to the corporation. One doesn’t have a limited supply of free speech rights, some of which one hands over to corporate management, so one’s rights are not actually impeded by corporate speech, even if one disagrees with it. Of course, one might be upset about one’s investment serving to promote ideas one disagrees with, but one might be similarly upset about business decisions a corporation of which one owns shares makes. Prof. Neuborne is right that there is a certain price to pay for extricating oneself from a relationship with a corporation―but that is the risk one takes by buying shares. 

Finally, I am not sure that prof. Neuborne is right to argue that corporate personality and rights can exist only insofar as they promote the easily ascertainable interests and uphold the rights of corporate “participants.” I accept that a corporation only serves to advance the interests of its shareholders (note that prof. Neuborne speaks of “participants,” not only shareholders―it is a disagreement I do not want to get into here). But we treat other artificial entities―notably governments of all sorts―as having an existence and rights of their own, even though they also exist in order to serve the interests and/or protect the rights of individuals. I’m not persuaded that the position of corporations is very different.

Judicial Independence as Free Speech

I wrote last fall about some implications of the metaphor of the “marketplace of ideas,” much used (especially in the United States) in the realm of free speech law. What prompted my reflection was a presentation by Robert Post, the Dean of Yale Law School, who argued that institutions engaged in the production of specialized knowledge indispensable  in a democracy―first and foremost universities―actually do not practice free speech internally. Not all ideas are equal in an academic setting. Academic disciplines accept some claims as true and reject others as false, and so, argues Dean Post, it is misleading to apply the notion of a marketplace of ideas, which implies the equality of all the competing ideas, when discussing academic freedom. Academic freedom is not the freedom of individual academics to say whatever they want without suffering negative consequences for it, but rather the freedom of academia as a whole to apply only its own disciplinary criteria to judging purportedly academic ideas.

For my part, I think that Dean Post is right to point out that some institutions that are essential for a healthy marketplace of ideas do not function on market principles internally. I also said, however, that he is wrong to say that this makes the marketplace metaphor inapplicable, because the same situation prevails in most real market too―firms, which are essential sellers in most markets, also do not follow the market principles internally, as the great Ronald Coase pointed out.

Academic institutions are not the only ones to which these thoughts apply. And here’s a crazy thought: judicial independence, at least as it has developed in Canada, looks a lot like an instance of the sort of free speech for an expert community described by Dean Post.

Like universities, the courts are in the business of producing a particular kind of ideas―specifically, ideas about the truth or falsity of certain propositions of law. And perhaps to an even greater extent than in scientific research, there are recognized ways of generating such ideas (the rules of procedure and evidence that courts must follow) and for evaluating them (appeals). As in scientific research, the institution engaged in the production and evaluation of these ideas (the court system) does not function, internally, as a free marketplace. Unlike in a market, there is a hierarchy, with some producers having higher status than others―courts of appeal, which intervene to correct the errors of trial courts, and which are deemed to be correct simply by virtue of their hierarchical position, rather like in academia hiring or tenure committees, or the editors of scientific journals, are deemed to be right by virtue of their functions.  They, as well as appellate courts, may actually be wrong, and their decisions might be open to external criticism, just as decisions of appellate courts are, but in both cases their judgment is regarded as authoritative notwithstanding external criticism.

And, much as academic freedom means that an academic, can suffer penalties for his work if, but only if, authoritative academic processes or institutions conclude that he or she must so suffer, judicial independence means that a judge can suffer (be punished and, eventually, dismissed from office) only if the members of the institution to which he or she belongs so decide. This is the idea behind judicial councils―advisory bodies which consist mostly (though not exclusively) of judges and which make recommendations regarding judicial appointments and, perhaps more importantly, sanctions to be applied to judges for misbehaviour in office. Now admittedly there are some differences between judicial councils and, say, tenure committees. For one thing, as I just mentioned, their membership does not only consist of judges. For another, their recommendations are not determinative of judicial appointments, and in even in the realm of judicial dismissal, the final decision belongs to political authorities (Parliament and the Governor General in the case of s. 96 judges, provincial governments in the case of provincially-appointed judges). Still, I think that the similarities outweigh the differences.

But does it make sense to speak of judicial independence is a sort of free speech right rather than a self-standing principle? I think it does, at least if we do not take this description to be the only correct one. From the standpoint of judges, independence means being able to say things that they believe to be correct within the parameters of their discipline―for example that an Act of Parliament is constitutional―without suffering unless, as a matter of their own discipline, they are wrong. (Now, judges aren’t punished simply if their decisions are overturned on appeal, but they hate it when that happens; and I suppose that if a judge turns out to always be making wrong decisions―if he or she turns out to be blatantly incompetent―he or she can in fact be punished.)

It is interesting to refer here to what is, I believe, the first formal protection of freedom of speech―that of the 1688 Bill of Rights, which provided “[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This also looks a lot like a right, for members of a specific community engaged in the production of a special kind of public good in the marketplace of ideas―namely, ideas about the government of the country―not to be punished for what they say except insofar as such punishment may be imposed by their colleagues, in that case fellow parliamentarians. Formal protections of freedom of speech, such as that of the American First Amendment and of s. 2(a) of the Charter were then extend to the citizenry as a whole (and to non-citizens too), but, as Dean Post reminds us, the somewhat different institutional version of the freedom of speech has not gone away.

Now, even if my re-conceptualization of judicial independence is not crazy, there remains the question of whether it is useful. I’m not sure that it is. But re-conceptualizations are a favourite pastime of legal academics. Some―the re-invention of areas of the law formerly understood in terms of duty in terms of economics comes to mind―are wildly successful. Others are just games, really. Mine is not exactly likely to bring me Posnerian fame and fortune, but it is fun all the same, for me at least.

Chilling Effect

I wrote a while ago about the case of Matthieu Bonin, a Québec blogger who was accused of incitement to hatred, after making some admittedly tasteless and idiotic statements which, nevertheless, didn’t amount to anything like hate propaganda. Fortunately, as La Presse reports, the charges against him have now been dropped. Yet they should never have been brought in the first place, and the story does illustrate the insidious effect of the existence of relatively vague hate speech provisions in the law, and especially of the prosecutorial abuse of such provisions.

I can’t even imagine what it is like to live for months with criminal charges―even, or perhaps especially, unfounded criminal charges―against you. Mr. Bonin was also prevented from uploading videos to the internet―a curtailment of his freedom of expression for which, as has now been officially confirmed, there was no good reason at all. In the grand scheme of things, two months without ranting on YouTube aren’t very much, yet even if relatively small, it is still a loss of freedom for which nothing can compensate.

Mr. Bonin speaks of having learned a lesson about use of language on the internet. But there is also a lesson for us all in his story, about the dangers of laws that restrict speech and of prosecutors who apply these laws according to their fancy rather than to what they actually say.

Freedom and Institutions

The who study the question of religious freedom often wonder why it should benefit and protect not only individual believers, but also religious institutions. Application of religious freedom to institutions such as the Catholic Church―institutions which, needless to say, are not often themselves models of internal liberalism, equality, or democracy―generates a good deal of criticism. Among other things, the critics point out that religious institutions seem unique in benefiting from a right which, like other rights, normally attaches to individuals. Indeed, many people―and particularly the non-religious, the agnostics and the atheists―do not exercise their beliefs through institutions. They only claim religious freedom (which, it is generally agreed, includes the freedom not to hold any religious belief) for themselves, not for any institutions. Why should believers be different?

But this story from the BBC suggests that they might not be different. It tells of an “atheist church” gathering in London, singing, sermons, and all. As the BBC reports,

The audience – overwhelmingly young, white and middle class – appear excited to be part of something new and speak of the void they felt on a Sunday morning when they decided to abandon their Christian faith.

Now I, for one, find it somewhat perplexing. As Leo Tolstoy supposedly said when invited to join a temperance society, “there’s no need to get together in order not to drink. If you get together, you might as well raise a glass to the occasion.” But never mind. Many people strongly prefer to live their beliefs through institutions―whatever these beliefs are, even if they are non-beliefs. Institutions are an inextricable part of the belief. Attack the institution, and you risk destroying the belief. Claims that we can respect religious freedom without making room for religious institutions―or, it would seem, that we could respect the freedom of non-believers without making room for institutions of irreligion, whatever shape they might take in the years to come―are at best misguided, and hypocritical at worst.

Besides, it is not really true that religious belief is unique among rights in being bound up with institutions. Just as freedom of religion has its churches, freedom of expression has its press (sometimes expressly acknowledged in constitutional texts, as in the First Amendment of the U.S. constitution), and, as Yale’s Dean Robert Post argues, its universities (as I explain here). So too the individual right to an impartial trial is connected with institutional protections for courts. And there are probably other examples too. Once you start thinking about it, religious freedom is neither as exceptional nor as exceptionable as some would have us think.

But institutions, however indispensable for freedom, can also stifle it. Universities, according to Dean Post, must be free to penalize professors and students who do not play by the generally accepted rules of the academic game; churches can impose penance and excommunicate their heretics. This is fine―this is part of these institutions’ freedom, which in turn is an inextricable part of how individuals exercise their own freedom―so long as there are alternatives. So long as an excommunicated heretic is free to found his own church, and to criticize the one that rejected him; so long as the mad scientist is free to pursue and publish his work outside the official ivory tower, there is no justification for interfering with the institutions which, internally, rely on authority more than on freedom. But there is a standing danger of such institutions growing so powerful as to capture the state and rely on its coercive machinery to forbid the expression of views disagreeable to them. That danger―the danger of the marketplace of ideas being ruled by state-backed monopolies―is what we must guard against.

Vive le Québec Libre!

Prosecutors in Québec seem to have forgotten that this is a free province in a free country. First, they came for a makeup artist whose gory videos, though involving no actual gore or violence whatsoever, were too realistic for their liking. And then, after a mere busybody concerned citizen complained, they came for a ranting blogger for, apparently, saying that someone ought to organize a mass shooting at the Québec National Assembly. (The story is a couple of weeks old, but I only came across it now, and think it’s worth highlighting, especially since it hasn’t attracted the attention of anglophone media.)

Now what Matthieu Bonin, the blogger, said is thoroughly disgusting. But that is not enough to accuse him of―wait for it―hate propaganda. Jeremy Waldron, about whose views on hate speech prohibitions I have written at length ( hereherehere, here, and here), thinks that Western democracies, including Canada, can be trusted not to abuse their hate speech laws to prosecute expression that is merely offensive, and does not fall within a fairly narrow understanding what what hate speech really is. This case is evidence that he is, regrettably, mistaken.

As the lawyer and blogger Véronique Robert, from whose post I learned about this case, explains, there is a very simple reason why Mr. Bonin is not guilty of the charge against him. S. 319 of the Criminal Code criminalizes public incitement (subs. 1) and wilful promotion (subs. 2) of “hatred against an identifiable group” (my emphasis). And “identifiable group,” pursuant to subs. 319(7) and 318(4), “means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” As Mtre Robert points out,

This is … an exhaustive list of what constitutes an identifiable group. … As this definition of an identifiable group does not include the group of politicians, there is no actus reus at all, and nothing, in my view, can ground a charge against Matthieu Bonin. In order to have him found guilty, the prosecution would have to amend the Criminal Code. (Translation mine)

As in the make up artist’s case, it seems to me that the prosecution is grotesquely mistaken about the legal claim it is asserting. But of course, even though the accused is going to be acquitted, he will have suffered stress and incurred considerable expenses. This is not how the power of a free state should be used. Whoever authorized the prosecution should be ashamed of him- or herself.

There is a further point to be made, though it is of secondary importance in light of Mtre Robert’s conclusion. The provision of the Criminal Code under which Mr. Bonin is charged might be unconstitutional. But what about R. v. Keegstra, [1990] 3 S.C.R. 697, which is generally taken to have, in Mtre Robert’s words, “have settled the question” of the constitutionality of the Criminal Code‘s prohibition on hate speech? Let me explain.

S. 319 of the Criminal Code has two subsections that create similar, but distinct offences. Subs. 1, criminalizes incitement of hatred “by communicating statements in any public place … where such incitement is likely to lead to a breach of the peace.” This is the provision Mtre Robert quotes in her post, but she does not clearly say that that is the one under which Mr. Bonin is charged. Subs. 2 criminalizes “wilful[] promot[ion]” of hatred “other than in private conversation. So it is applicable to a broader range of situations than subs. 1―anything other than a private conversation, as opposed to “a public place”, and there is no need for likelihood of a breach of peace; but subs. 2 is also narrower, in that it includes a requirement of wilfulness which is absent from subs. 1. Only subs. 2 (as well as par. 3(a)) was at issue, and was upheld, by a vote of 5-4, in Keegstra. And, importantly, the requirement of wilfulness in subs. 2 was among the factors the majority invoked as showing the limited scope of subs. 2, and therefore constitutional permissibility. Because that requirement is absent from subs. 1, I think that Keegstra does not settle the question of its constitutionality. To the contrary, it is some reason to believe that subs. 1 might be unconstitutional. So if that’s the provision under which Mr. Bonin is charged, he has, in my opinion, a fairly strong constitutional argument to make.

There is, by the way, another difference between subs. 319(1) and 319(2). Pursuant to subs. 319(6), “[n]o proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.” There is no such restriction applicable to subs. 1. This may not have any constitutional significance―the Supreme Court did not comment on this requirement in Keegstra. But if the charge against Mr. Bonin is under subs. 1, without the Attorney General’s consent, their absurdity might suggest that it would be a good idea to apply the subs. 6 requirement to subs. 1 as well as subs. 2.

The best thing, of course, would be to get rid of s. 319 altogether, for the reasons I discuss in the posts linked to above, and because we now have an example of blatant prosecutorial abuse. But so long as the provision is on the books, the prosecutors’ sense of decency―or at least their knowledge of the law―are what we are forced to count on for our freedom. Right now, in Québec, both are in short supply.