THE CONSTITUTIONAL AND CULTURAL UNDERPINNINGS OF FREEDOM OF EXPRESSION: LESSONS FROM THE UNITED STATES AND CANADA Grant Huscroft* INTRODUCTION If I were plumping for the adoption of a bill of rights, as many Australian academics are,1 I would emphasize the importance of protecting things like freedom of expression. How could anyone not be in favour of freedom of expression? It is one of the first things that comes to mind when people think of democracy and human rights. Of course, freedom of expression does not depend upon the protection of a bill of rights. Australians have long enjoyed freedom of expression without a bill of rights2 – certainly they are no worse off than citizens of Japan, Italy, Brazil, Lithuania, South Africa, Nigeria, or East Timor, all countries in which freedom of expression apparently enjoys constitutional protection. Justice Kirby refers to these countries in Coleman v Power,3 in making the point that Australia is one of the few countries in the world that does not have a bill of rights. Australia’s constitutional arrangements are, as he puts it, ‘peculiar and now virtually unique’.4 Even East Timor provides constitutional protection for freedom of expression! Peculiar and virtually unique its constitutional arrangements may be, but there is no gainsaying that Australia is a free and democratic country. Of course, there is plenty of argument about the nature and scope of freedom of expression in Australia – about whether legislation and the common law strike the correct balance between competing interests in particular circumstances – but there is no less argument in countries like the United States and Canada, both of which have constitutionally entrenched bills of rights. The signal difference between Australia and these countries is that, in Australia, argument about freedom of expression is more likely to take political rather than legal form. It is conducted by the people and through their elected representatives, and does not depend on courts for its * Faculty of Law, The University of Western Ontario. This paper arises out of a paper I gave at a symposium called ‘Speech and Freedom: Comparative Constitutional Conceptions’, held at the Research School of Social Sciences, Australian National University in December 2004. I am grateful to Adrienne Stone for her invitation to participate in this event, and to Peter Cane and Jane Stapleton for the hospitality of the Research School. Thanks to my research assistants, Chris Cheung, Sarah Shody, Cameron MacDonald and Meghan Butler; to James Allan, Joanna Harrington, Brad Miller, Paul Rishworth, and Adrienne Stone for reading this paper in draft and providing helpful comments; and to the participants at the colloquium for their questions and comments. 1

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Professor George Williams, the Anthony Mason Professor at the University of New South Wales, is one of the leading proponents. His advocacy of a bill of rights includes A Bill of Rights for Australia (2000) and The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004). Most recently, he authored a report for the government of Victoria that led to the decision to adopt a the Victoria Charter of Human Rights and Responsibilities, a statutory bill of rights that comes into effect in 2007. See Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2006) (). The ACT Human Rights Act 2004 and the Victoria Charter of Human Rights and Responsibilities 2006 include protection for freedom of expression. There is no bill of rights in the other Australian states or territories or at the federal level. (2004) 220 CLR 1. Ibid [218].

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direction or an analytical framework.5 The same is true of arguments about other sorts of rights. Now, the argument for the adoption of a bill of rights in Australia need not be deterred by any of this – especially the prior existence of a culture of respect for rights and freedoms. On the contrary, it can be argued that freedom of expression should be protected by a bill of rights precisely because it is so highly respected. Why shouldn’t important rights and freedoms be given special protection? What are opponents of bills of rights afraid of? Arguments of this sort were made when New Zealand was debating the adoption of an entrenched bill of rights. Speaking ‘as a citizen’, Lord Cooke, then President of the New Zealand Court of Appeal, endorsed the then draft New Zealand Bill of Rights6 as follows: I support the concept of a Bill of Rights. It is a view I have come to gradually and with hesitation, but in the end definitely. Perhaps the acid test for each of us might be something like this. Look at the rights and freedoms covered by the 29 clauses in the draft. If we really value them, how could it be right to oppose a national commitment? Gaps and problems there may be, but would it be honest to subscribe to such ideals yet not to support giving them special standing and protection? Surely the question is not what is not there, but what is there.7 Conveniently, this argument ignores concerns about the scope – and legitimacy – of judicial review by insisting that what is really at stake is the strength of our commitment to rights and freedoms. But the choice that must be made is not between protecting rights and freedoms in a bill of rights or leaving them unprotected. Still less is it between having rights and freedoms or having none at all – a fallacy arising out of the conflation of the concepts of rights and legal rights. The real choice that must be made is between decision makers: who should have decision-making authority where rights and freedoms are concerned – the legislature or the courts? To adopt a bill of rights is to transfer decision-making authority from the legislature to the courts. The only question is the extent of the transfer – how much authority will be transferred and, hence, how strong will judicial review turn out to be?8 5

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Of course, it is possible to advance arguments inspired by freedom of expression in the context of common law litigation. Until recently, however, it has not been possible to advance freedom of expression arguments per se. The closest one comes in Australia is an argument based on the freedom of communication inferred from the Australian Constitution in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. The recent passage of bills of rights in the ACT and Victoria means that freedom of expression arguments can now be made in court, and that a jurisprudence will develop. The impact of this development remains to be seen. The New Zealand Bill of Rights Act 1990 was proposed as a supreme law bill of rights, in entrenched constitutional form, but was passed as ordinary legislation. The history of the NZ Bill of Rights is set out in Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (2003) ch 1. Sir Robin Cooke, ICJ conference 1985, quoted in Paul Rishworth, ‘Lord Cooke and the Bill of Rights’ in Paul Rishworth (ed), The Struggle for Simplicity: Essays in Honour of Lord Cooke (1997) 295, 303. The answer is not necessarily found in the terms of a bill of rights. The Canadian Charter of Rights and Freedoms allows the Canadian Parliament and provincial legislatures to pass legislation ‘notwithstanding’ Charter rights (s 33), and many suppose that the power of Canadian courts is limited as a result, but this is a misjudgment. In the first place, the limitations on the famous notwithstanding clause are many: it applies to some, but not all rights; it has been interpreted to apply only prospectively (Ford v Quebec [1988] 2 SCR 712); and it applies only for five-year periods. As a result, the notwithstanding clause is more aptly described as allowing a temporary respite from judicial supremacy in limited circumstances. The limited usefulness of the clause is

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Once it is acknowledged that the meaning of rights and the reasonableness of limitations on them is contestable, reliance on the importance of rights as the rationale for adopting a bill of rights appears simplistic at best. Consider the New Zealand government’s arguments in support of its bill of rights proposal. The White Paper, ‘A Bill of Rights for New Zealand?’, argued that the fundamental freedoms (which include freedom of expression) ‘are freedoms about which there is no real dispute (although their exact extent might of course be argued). They are truly fundamental. A Bill of Rights should put them beyond amendment or abrogation by the ordinary legislative process.’9 The parenthetical statement in this passage destroys the very point that was being made. To argue that agreement about the importance of rights justifies the adoption of a bill of rights while conceding that the ‘exact extent’ of those rights is contestable is to argue for nothing except judicial discretion to shape their meaning, and hence determine the country’s constitutional future. Courts may well prove to be stalwart protectors of rights, but what conception of rights will they promote and protect? In this paper I want to argue that different judicial conceptions of freedom of expression in the United States and Canada have less to do with differences in the formal commitment these countries have made in their respective bills of rights – the constitutional underpinnings of the freedom of expression – than with the cultural underpinnings of the freedom of expression in each country. The lesson for Australians, I think, is that arguments for bills of rights take too much for granted. To the extent that the protection of rights and freedoms depends on judicial interpretation of a bill of rights,10 a judiciary’s conception of its country’s political culture, both in a descriptive and a normative sense, may be more important than either the way in which those rights and freedoms are worded or the legal status of the instrument in which they are protected.11 A TALE OF TWO CONSTITUTIONS: THE UNITED STATES AND CANADA Let me begin with a brief review of the protection of freedom of expression in the United States and Canada. Americans and Canadians have much in common, and experience with the U.S. Bill of Rights was influential in Canada’s decision to adopt the Canadian Charter of Rights and Freedoms. But freedom of expression is accorded very different protection by courts in these two countries, and these differences yield important lessons.

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borne out by political experience: it is almost never used outside the province of Quebec, and has never been used at the federal level. See Peter Hogg, Constitutional Law of Canada (4th ed, 1997, updated in looseleaf) ch 36.2. Indeed, successive prime ministers have disavowed its use, some going so far as to propose a constitutional amendment to repeal it. Thus, in practice Canada is best understood as having a strong rather than weak form of judicial review. See Grant Huscroft, ‘Thank God We’re Here: Judicial Exclusivity and its Consequences’ (2004) 25 Sup. Ct. L. Rev. 241. On strong and weak forms of judicial review, see Mark Tushnet, ‘Judicial Review of Legislation’ in Peter Cane and Mark Tushnet (eds) The Oxford Handbook of Legal Studies (2003), and Mark Tushnet, ‘Judicial Activism or Restraint in a Section 33 World’ (2003) 53 UTLJ 89 (Tushnet, ‘Judicial Activism or Restraint’). (1985) AJHR A6, para 4.16. The extent to which the protection of rights ultimately depends on a country’s judiciary – even where a bill of rights exists – may be overestimated, but that is a topic for another paper. Attempts to ensure or preclude particular interpretations of bills of rights guarantees at the drafting stage may be pointless in any event, especially if a country’s judiciary adopts a ‘living tree’ approach to interpretation. See Grant Huscroft, ‘The Problem with Living Tree Interpretation’ in this volume.

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Freedom of expression under the U.S. Bill of Rights – The First Amendment The story of freedom of expression – usually referred to as freedom of speech – in the United States is for many Americans a source of pride.12 For non-Americans, it is a source of wonder. How is it that the freedom of expression has come to be understood as protecting the expression of neo-Nazis,13 calls to violence,14 and careless defamation of public officials,15 among other things? Freedom of expression is protected in the United States by the First Amendment to the U.S. Constitution, which provides: Congress shall make no law … abridging the freedom of speech, or of the press … Plainly, the language of the First Amendment does not compel any of the controversial results reached by the U.S. Supreme Court. Indeed, it is noteworthy that the First Amendment was not always understood as being so protective of expression. In the first century of the U.S. Bill of Rights, the First Amendment meant little. The eloquent and much-admired decisions of Justices Holmes and Brandeis, in which they articulated the now-leading theories about the importance of freedom of expression, were not written until the early 1900s – the second century of the Bill of Rights – and for the most part were written in dissent. The majority of the Court had little difficulty upholding the convictions of war protesters,16 socialists,17 and others whose expression was considered subversive or did not enjoy community approval.18 The First Amendment as it is understood today is largely a product of the latter half of the twentieth century, during which time the U.S. Supreme Court developed a large and sophisticated body of case law that expanded the protection of freedom of expression –

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See, eg, Charles Fried, ‘The New First Amendment Jurisprudence: A Threat to Liberty’ in Geoffrey Stone et al (eds), The Bill of Rights in the Modern State (1992) 225, 229: ‘In freedom of expression we lead the world.’ 13 Village of Skokie v National Socialist Party of America, 373 NE 2d 21(Ill S Ct, 1978) (upholding the right of a neo-Nazi group to hold parade through a predominantly Jewish neighbourhood while displaying swastika: ‘The decisions of [the U.S. Supreme Court] … compel us to permit the demonstration as proposed.’) 14 Brandenburg v Ohio, 395 US 444 (1969) (precluding prohibition of advocacy of use of force or illegal acts unless advocacy is aimed at inciting or producing imminent lawless action and is likely to do so). 15 New York Times v Sullivan, 376 US 254 (1964) (precluding public officials from recovering damages in defamation concerning official conduct unless it is established that the statement is made in knowledge that it was false or with reckless disregard of its falsity). 16 Abrams v United States, 250 US 616 (1919) (upholding constitutionality of conviction under Espionage Act for harming the war effort by urging general strike). 17 Gitlow v New York, 268 US 652 (1925) (upholding constitutionality of conviction on a charge of criminal anarchy for advocating proletariat revolution). 18 Prior to Abrams, Justice Holmes had written for the Court in upholding the convictions of draft protesters in Schenck v United States, 249 US 47 (1919), in which he fashioned the ‘clear and present danger’ test, but applied it loosely. The development of Justice Holmes’s thinking on the First Amendment is discussed in Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court and Free Speech (1987) and Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (1993).

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along with other rights and freedoms – considerably.19 ‘Content neutrality’ is a recurring theme in the cases. The government, it is said, should not proscribe expression on the basis that it disapproves of the content of a particular message. Justice Brennan’s words from Texas v Johnson are oft-quoted: ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’20 Justice O’Connor echoed these words recently in Virginia v Black:21 ‘The hallmark of the protection of free speech is to allow “free trade in ideas” – even ideas that the overwhelming majority of people might find distasteful or discomforting.’ Content neutrality is an important yet incomplete explanation of American law. The Court differentiates between expression and conduct, and within those categories distinguishes protected expression from unprotected expression, and expressive conduct from non-expressive conduct.22 ‘Protected’ expression receives the most searching form of judicial scrutiny, and hence the greatest protection. Here is where the proscription of content regulation is strongest. Freedom of expression under the Canadian Charter The Canadian Charter provides as follows: 2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; Freedom of expression under the Canadian Charter is not cast in the negative injunctive terms of the First Amendment, but this has not proven to be significant in its interpretation by the Supreme Court of Canada. From the outset, that Court has endorsed the rationale traditionally adopted by American courts for protecting freedom of expression.23 In Irwin Toys v Quebec the Court explained that freedom of expression is important for three reasons: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.24 These principles are so widely endorsed as to seem uncontroversial, yet they say little about how extensive the freedom of expression will be. To say that expression is important to the search for truth and to participation in society, as the Court’s first two principles do, is to regard the freedom as a means to an end. Instrumental claims of this sort support the protection of freedom of expression in a variety of contexts, but not necessarily to the extent 19

Daniel Farber’s The First Amendment (1998) provides an accessible account of the major areas of First Amendment case law. James Weinstein provides a good overview of modern doctrine in Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (1999) 31-49. 20 491 US 397 (1989) (holding unconstitutional legislation prohibiting flag-burning). 21 538 US 343 (2003). 22 Weinstein, above n 19, 32. Farber discusses content regulation, above n 19, 21-38. 23 See generally Frederick Schauer, Free Speech: a Philosophical Enquiry (1982) chs 2-4; Rodney A Smolla, Free Speech in an Open Society (1992) 6-17. 24 [1989] 1 SCR 927 [53]. See also Ford v Quebec (Attorney General) [1988] 2 SCR 712, 765-7.

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that Justice Holmes’ ‘marketplace of ideas’ would have it.25 They may also be invoked in support of a narrower interpretation of the freedom, if it is arguable that the end is more likely to be achieved in this way.26 The Court’s third principle, which suggests that expression is important for its own sake, raises a different concern: it is so broad as to suggest almost boundless protection, especially given the difficulty of distinguishing conduct from expression.27 The Supreme Court of Canada has interpreted the freedom of expression broadly, holding that it protects anything that attempts to convey meaning, provided that the meaning is conveyed in a form that is not violent.28 As a majority of the Court put it in R v Keegstra, ‘[t]he content of a statement cannot deprive it of the protection accorded by s 2(b), no matter how offensive it may be.’29 This is an apt description of the ambit of freedom of expression in Canada, yet the ambit of the right is not as meaningful as it seems; generosity at the stage of defining rights and freedoms may mean little in Charter analysis.30 In the context of freedom of expression, it means only that a plaintiff will have little difficulty in establishing a prima facie infringement of the freedom; few cases, in other words, will be screened out at the initial stage of the analysis, where the burden lies on the claimant to establish that a right or freedom has been infringed. The real scope of the freedom of expression emerges only following consideration of section 1 of the Charter, which provides that the enumerated rights and freedoms are guaranteed ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Section 1 establishes a broad standard against which limits are to be judged, with the onus being on the government to demonstrate justification. At this stage of the analysis, the content of expression is not only relevant to the protection it will receive, it may be practically determinative. It is easier to limit expression the Court considers ‘low value’ in nature. Comparing the approaches in practice The serious consequence under American law of concluding that expression has been regulated on the basis of its content – unconstitutionality, regardless of the reasonableness of the regulation31 – does not follow on the Canadian approach. In a number of cases the

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Justice Holmes’ ‘marketplace of ideas’ metaphor, coined in Abrams v United States, 250 US 616, 630 (1919), is not mentioned in Irwin Toy (but it has been mentioned by some justices in subsequent decisions of the Supreme Court of Canada). In Abrams, Justice Holmes put it this way: [W]hen men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market … Justice Holmes’ rationale is subtly different from the search for truth explanation in that it does not promise that the truth will be reached; it simply assumes truth is best judged if there is openness in the marketplace of ideas. See Smolla, above n 23, 6-8. 26 The point is well made by Fried, above n 12. See also Harper v Canada [2004] 1 SCR 827, discussed in the text below. 27 Smolla, above n 23. 28 Irwin Toy v Quebec [1989] 1 SCR 927, 970. 29 R v Keegstra [1990] 3 SCR 697, 828 (‘Keegstra’). 30 Peter Hogg’s explanation of the relationship between definition and justification remains the best in this regard. See Hogg, ‘Interpreting the Charter of Rights: Generosity and Justification’ (1990) 28 Osgoode Hall LJ 817; Hogg, above n 8, ch 35.3. 31 Justice O’Connor of the U.S. Supreme Court once remarked, ‘[I]t is quite true that regulations are occasionally struck down because of their content-based nature, even though common sense may

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Supreme Court of Canada has upheld the constitutionality of content-based limits on the freedom of expression,32 limits that would almost certainly be considered unconstitutional under the First Amendment. The list includes decisions in the most controversial areas, everything from hate speech to obscenity and defamation. For example, in Keegstra the Supreme Court of Canada upheld the constitutionality of legislation criminalizing racist expression, while in RAV v X33 the U.S. Supreme Court held that the criminalization of ‘fighting words’ on the basis of racial content was unconstitutional.34 In R v Butler35 the Supreme Court of Canada upheld the constitutionality of legislation criminalizing the sale of obscene material, reasoning that obscenity had to be understood in terms of harm to society, and in particular women, while in American Association of Booksellers v Hudnut36 the U.S. Supreme Court held that municipal legislation defining pornography as a discriminatory practice against women and establishing an administrative enforcement scheme was unconstitutional.37 In Hill v Church of Scientology38 and R v Lucas39 the Supreme Court of Canada upheld the constitutionality of civil and criminal sanctions for defamation, while in New York Times v Sullivan40 and subsequent cases the U.S. Supreme Court established constitutional protection for defamatory speech, all but precluding liability in regard to the discussion of public officials and public figures. The defamation cases reveal fundamental differences between the approaches of Canadian and American courts.41 The Supreme Court of Canada has approved limits on freedom of expression designed to protect individual reputation, a trade-off the U.S. Supreme Court has refused to make.42 Justice Brennan’s oft-quoted remarks in Sullivan –

suggest that they are entirely reasonable.’ See City of Ladue v Gilleo, 512 US 43, 60 (1994) (concurring opinion), quoted in Weinstein, above n 19, 39. 32 It is fair to add, however, that the Court has often been careful to give limited interpretations to legislation that it upholds as a reasonable limit on a right. See June Ross, ‘The Protection of Freedom of Expression by the Supreme Court of Canada’ (2003) 19 Supreme Court Law Review 81; cf Jamie Cameron, ‘The Past, Present, and Future of Expressive Freedom under the Charter’ (1997) 35 Osgoode Hall LJ 1. 33 505 US 377 (1992). Cf Virginia v Black, 538 US 343 (2003), in which a majority of the Court upheld the constitutionality of legislation prohibiting cross burning with an intention to intimidate. Justice Scalia, author of the Court’s opinion in RAV., concurred in the opinion on the basis that it was consistent with RAV. because it did not single out intimidation on particular grounds. 34 Weinstein, above n 19, concludes that Canadian hate expression legislation would constitute viewpoint regulation (pages 52-59), and would be unconstitutional per se. 35 [1992] 1 SCR 452 (‘Butler’). The Court reiterated the Butler approach in the context of homosexual pornography in Little Sisters Book and Art Emporium v Canada [2000] 2 SCR 1120. 36 771 F 2d 323 (7th Cir, 1985); aff’d 475 US 1001 (1986) (summary affirmance). 37 Compare also R v Sharpe [2001] 1 SCR 45 (upholding the criminal law offence of possession of child pornography as a reasonable limit on freedom of expression – after the Court read-in two exceptions to the law) with Ashcroft v Free Speech Coalition, 535 US 234 (2002) (holding prohibition of ‘virtual’ child pornography (computer generated or adults who look like minors) unconstitutional). The reasoned apprehension of harm suffices to justify limits on the freedom of expression in Sharpe, but not so in Free Speech Coalition. The comparison between the cases is developed in Hogg, above n 8, ch 40.11. 38 [1995] 2 SCR 1130. 39 [1998] 1 SCR 439. 40 376 US 254 (1964). See Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1992). 41 See Adrienne Stone and George Williams, ‘Freedom of Speech and Defamation: Developments in the Common Law World’ (2000) 26 Monash ULR 362. 42 It would be wrong to infer that Canadian law is more concerned with dignity interests than American law, since both courts can justify their approach as advancing dignitary interests – albeit different interests. Adrienne Stone argues that Canadian law relies on reputation to protect dignity,

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noting America’s ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’43 – are descriptive as well as aspirational when it comes to American character, and have no Canadian counterpart. Nowhere is this better illustrated than in Hustler Magazine v Falwell.44 A notorious pornographic magazine ran a parody of an advertisement designed to mock the Reverend Jerry Falwell, a nationally known televangelist and commentator on public affairs.45 Falwell sued for the intentional infliction of emotional distress and was awarded $100,000 in damages and $50,000 in punitive damages.46 The U.S. Supreme Court overturned this decision unanimously. As Chief Justice Rehnquist put it, ‘public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” that is, with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’47 This, he said, was the ‘breathing space’ the First Amendment required.48 There being no false statement of fact in the parody advertisement – let alone a false statement made with knowledge of falsity or recklessly – Falwell had to lose. Chief Justice Rehnquist’s decision reiterated the Court’s commitment to the Sullivan precedent, which would have been undermined if Falwell’s suit had succeeded,49 and embraced the ‘profound national commitment’ of which Justice Brennan spoke. ‘[I]n the world of debate about public affairs,’ Renhnquist wrote, ‘many things done with motives that are less than admirable are protected by the First Amendment’.50 The Supreme Court of Canada is far less protective of expression where it considers that ‘less than admirable’ motives are concerned. It is often assumed that structural differences between the U.S. Bill of Rights and the Canadian Charter – in particular, the absence of a ‘reasonable limits’ clause from the U.S. while American law is based on a conception of dignity that inheres in freedom of speech itself. See Stone, ‘Defamation of Public Figures: North American Contrasts’ (2005) 50 NYL Sch L Rev 9, 23-4. 43 New York Times v Sullivan, 376 US 254, 270 (1964) (‘New York Times’). 44 485 US 46 (1988) (‘Falwell’). 45 Here is how the Court described the feature: This parody was modeled after actual Campari ads that included interviews with various celebrities about their ‘first times’. Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of ‘first times’. Copying the form and layout of these Campari ads, Hustler’s editors chose the respondent as the featured celebrity and drafted an alleged ‘interview’ with him in which he states that his ‘first time’ was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, ‘ad parody – not to be taken seriously’. The magazine’s table of contents also lists the ad as ‘Fiction; Ad and Personality Parody’. Ibid 48. 46 Actions in libel and invasion of privacy failed. 47 485 US 46, 56 (1988). 48 Justice White did not consider that New York Times v Sullivan was relevant to the case. 49 See Lewis, above n 40, 231-3. See also Rodney Smolla, Jerry Falwell v Larry Flynt: The First Amendment on Trial (1988); Robert Post, ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v Falwell’ (1990) 103 Harvard Law Review 601. 50 485 US 46, 53 (1988).

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Bill of Rights – explain the different outcomes in American and Canadian freedom of expression cases. Proponents of the Canadian Charter laud the reasonable limits provision as an innovation that saves Canadian constitutional law from what they portray as the excesses of American law, in particular the notion that the U.S. Bill of Rights protects rights absolutely. The Canadian approach is superior, they argue, because it allows elected legislatures to establish limitations on rights that the Court can uphold.51 But this exaggerates the differences between the two bills of rights, and the exaggeration is apparent in regard to the freedom of expression. Although the wording of the First Amendment may suggest otherwise, freedom of expression is not treated as an absolute in American constitutional law,52 nor for that matter are any other rights in the U.S. Bill of Rights. As Mark Tushnet has explained, the absence of a discrete justificatory step under the U.S. Bill of Rights does not cause rights to be interpreted absolutely. In the absence of such a step, justificatory considerations are taken into account in defining the right: [I]n the United States the Supreme Court defines the rights in question by referring to the justifications the government has for its action. Social interests are accommodated in the process of defining constitutional rights, and no right exists to be infringed if the government’s justifications are good enough. In that sense only are rights in the United States absolute: Because government justifications have been taken into account at step one, nothing remains to be done by taking a second step.53 The U.S. Supreme Court has developed various levels of scrutiny for analyzing limits on the freedom of expression – even for forms of expression once considered beyond the protection of the First Amendment. Lewd and obscene speech, profane speech, libelous speech, and ‘fighting words’ – expression that could once be prevented and punished without raising a constitutional problem54 – all enjoy First Amendment protection today to varying degrees. So does commercial expression, a form of expression that received no First Amendment protection until 1976.55 The Court set out a four-part test for the protection of

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Kent Roach describes this as the ‘genius’ of the Canadian approach in The Supreme Court on Trial (2001) 291. Roach says that the U.S. Bill of Rights ‘does not give legislatures an explicit power either to limit or to override rights as interpreted by the Courts. This problem is most dramatic and visible in the context of the First Amendment…Once the Court has determined that some activity, such as flag burning, is indeed speech, there is little that Congress can do in response.’ He adds that he does ‘not want to suggest that it is always impossible for legislatures to respond to the Court’s decision’ (p 32), but the suggestion that judicial review under the U.S. Bill of Rights is different in kind from that under the Canadian Charter is a central theme of his book. Later in the book he says that the U.S. Bill of Rights, and in particular the First Amendment, ‘proclaims liberal rights as interpreted by the Court as absolute and subject neither to justifiable limitation nor explicit derogation. It is rooted in a horse-drawn age that predates the modern state…’ (p 290, footnote omitted). He reiterates this sort of argument in Kent Roach, ‘American Constitutional Theory for Canadians (And the Rest of the World)’ (2002) 52 UTLJ 503. For criticism see James Allan, ‘The Author Doth Protest Too Much, Methinks’ (2003) 20 New Zealand Universities Law Review 519; Mark Tushnet, ‘Judicial Activism or Restraint’, above n 8. 52 See Virginia v Black, 538 US 343, 358 (2003): ‘The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.’ Only one Justice has maintained the absolutist conception of the right, Justice Hugo Black, and he was able to do so only by adopting a minimal conception of the right. As Mark Tushnet puts it, ‘I believe that Professor Roach has been misled by an earlier generation’s debates about the proper approach to interpreting the U.S. Bill of Rights …’. Tushnet, ‘Judicial Activism or Restraint’, above n 8, 92. 53 Tushnet, above n 8, 92 (emphasis in original). 54 Chaplinsky v New Hampshire, 315 US 568 (1942). 55 Virginia State Board of Pharmacy v Virginia Citizens Consumer Council Inc, 425 US 748 (1976).

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commercial expression in Central Hudson Gas & Electric Corp v Public Service Commission of New York: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.56 The Central Hudson test requires the government to establish that there is a ‘substantial’ interest in regulating the expression; that the legislation ‘directly advances’ that interest; and that the legislation is ‘not more extensive than is necessary to serve that interest’. Substitute the terms ‘pressing and substantial’, ‘rational connection’, and ‘minimal impairment’, and in essence this is the test devised by the Supreme Court of Canada in R v Oakes for determining whether or not limits on rights and freedoms are reasonable and demonstrably justified57 – a test designed for general application rather than simply commercial expression.58 In short, the structural differences between the constitutions in these two countries are not as significant as they appear to be when it comes to interpreting and applying rights, and do not explain the different outcome of the cases. The outcome of freedom of expression cases in the United States and Canada does not always differ, of course, nor is the U.S. Supreme Court invariably more protective of the freedom of expression than the Supreme Court of Canada. In some cases the Supreme Court of Canada has interpreted the guarantee of freedom of expression as affording greater protection to freedom of expression than the First Amendment. For example, in City of Peterborough v Ramsden59 the Supreme Court of Canada held that municipal legislation prohibiting the posting of signs on public property was unconstitutional, while the U.S. Supreme Court upheld the constitutionality of similar legislation in Members of the City Council of the City of Los Angeles v Taxpayers for Vincent.60 The important point is that, however many or extensive the differences in the outcome of the freedom of expression cases in the United States and Canada, they do not depend on structural differences between the bills of rights of the two countries. Nothing in the U.S. Bill of Rights requires the Supreme Court to conclude that legislation banning hate speech or regulating sexually explicit expression is unconstitutional, just as nothing in the Canadian Charter precludes the Supreme Court of Canada from upholding the constitutionality of

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447 US 557, 565 (1980). [1986] 1 SCR 103. Hogg makes a similar observation in Constitutional Law of Canada, above n 8, ch 35.1. The Oakes test (as interpreted in subsequent cases) requires the state to establish four things in order to establish the reasonableness of a particular limit on a right or freedom: 1. the legislation pursues a sufficiently important objective; 2. the legislation is rationally connected to the achievement of that objective; 3. the legislation limits the right or freedom as little as reasonably possible; and 4. the legislation is proportionate in a global sense, in that it does not sacrifice too much in regard to what is gained. 58 The generality of the Oakes test subsumes the various American levels of scrutiny. As a result, the Oakes test can be applied strictly or deferentially, and it is difficult to tell whether, or the extent to which, a deferential approach will be taken in particular circumstances. 59 [1993] 2 SCR 1084. 60 466 US 789 (1984). 57

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legislation in these and other areas. The explanation for the different outcomes must be found elsewhere. The political culture of constitutionalism in the United States and Canada In my view, the best explanation for differences between the protection of freedom of expression in the United States and Canada lies in differences in the political culture, as perceived by the courts. These differences are sometimes explicit in the cases, but they are often implicit. The protection of freedom of expression in the First Amendment reflects a broad theme that runs through American constitutional law: mistrust of and sometimes hostility towards government. This can be seen clearly in the formal separation of powers and the elaborate system of checks and balances that characterizes the American Constitution. Consider the legislative function: in order for federal legislation to pass, identical legislation must pass in both Houses of Congress (the House of Representatives and the Senate), which are elected on different bases. Even assuming that Congress agrees on the passage of a particular law, the President (again, elected on a different basis) may veto the legislation. The President, in turn, is kept in check by the possibility that his veto can be overridden by a two-thirds vote in the House and the Senate. And so on.61 This system of checks and balances is foreign to Canada and many other countries with Parliamentary systems, in which executive domination of the legislature – and hence, the lawmaking process – has historically been the norm. Bicameralism exists largely as a formality in Canada, with the appointed Canadian Senate usually rubber-stamping legislation passed by the elected House of Commons. Although a separation of powers exists in Canada, it is not as extensive or formal as the American model.62 The American separation of powers and system of checks and balances has the effect of limiting not only the power of the individual branches of government but the power of the government as a whole, and the negative orientation of the U.S. Bill of Rights reinforces the idea of limited government. Where the state is viewed in more benign terms, as it is in Canada, the motivation to emphasize the negative orientation of rights and freedoms is diminished accordingly. Indeed, the opposite motivation can be discerned. The Court may take pains to ensure that the negative orientation of rights is not too strong, lest the state’s power to act be limited unduly. Chief Justice Dickson is widely considered to be a champion of Charter rights,63 but in an early Charter case, R v Edwards Books, he cautioned as follows:64 In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.65 61

See generally, Tom Campbell, Separation of Powers in Practice (2004); Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court (2004) 49-77. 62 See Michael Bryant and Lorne Sossin, Public Law (2002) 98-112. It is, nevertheless, considered fundamental. See Newfoundland (Treasury Board) v NAPE [2004] 3 SCR 381 [104]-[116]. 63 See, eg, Robert Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (2003). 64 [1986] 2 SCR 713. 65 Edwards Books concerned a challenge to the constitutionality of legislation requiring retail stores to close on Sundays. A majority of the Court concluded that the law infringed the freedom of religion despite its secular purpose (a common pause day), but upheld it as a reasonable limit on the basis of a deferential application of the minimal impairment branch of the Oakes test. Chief Justice Dickson made the remarks quoted in the text in discussing the comparative situations of employees and employers: ‘When the interests of more than seven vulnerable employees in securing a Sunday

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The motivation for Chief Justice Dickson’s caution is not difficult to understand: it is a response to the Lochner era and the excesses of the U.S. Supreme Court’s substantive due process jurisprudence, which emphasized economic liberty at the expense of important economic and social reform the elected branch of government was pursuing.66 But his caution seems incoherent. Charter rights and freedoms are, in general,67 conferred on everyone equally, and the very point of constitutionalizing them is to establish their preeminence over sundry political interests, however socially just or desirable those interests may seem to be.68 To declare that the courts should be concerned with whether or not it is socially just for individuals to exercise their rights is to interpret the Charter with a thumb on the state’s side of the scale. Even on its own terms, however, the caution is difficult to understand. How are ‘better situated individuals’ and ‘disadvantaged persons’ to be identified? In the absence of objective criteria, Chief Justice Dickson’s caution seems to render the enforcement of rights subject to judicial discretion. On this approach, rights are not necessarily rights at all; it depends on who is exercising them, and to what end. In short, there is much that is problematic about Chief Justice Dickson’s caution. Nevertheless, it has been reiterated in a variety of contexts including cases in which freedom of expression is in issue.69 To a large extent Edwards Books reflects assumptions that are opposite to those that animate the conventional understanding of the First Amendment. The U.S. Supreme Court accepts – indeed, expects – that the protection of freedom of expression involves significant costs in terms of collective interests, especially to the conception of holiday are weighed against the interests of their employer in transacting business on a Sunday, I cannot fault the legislature for determining that the protection of the employees ought to prevail’ (at 779). 66 The Court makes this point explicit in R v Wholesale Travel Group Inc [1991] 3 SCR 154, 233-4: This principle recognizes that much government regulation is designed to protect the vulnerable. It would be unfortunate indeed if the Charter were used as a weapon to attack measures intended to protect the disadvantaged and comparatively powerless members of society. It is interesting to observe that in the United States, courts struck down important components of the program of regulatory legislation known as ‘the New Deal’. This so-called ‘Lochner era’ is now almost universally regarded by academic writers as a dark age in the history of the American Constitution. The Lochner motivation for the Chief Justice’s remarks is inapt, however, since the problem with the decisions of the Lochner era was that the Court inferred rights to economic liberty from the due process clause in order to frustrate legislation to which the Court was hostile. The illegitimacy of this line of cases does not suggest how cases involving rights that are given explicit protection in the Charter should be resolved. 67 Some rights in the Canadian Charter, such as language rights, are specifically limited to particular persons in particular provinces. Rights not so specifically limited, however, are assumed to be universally enjoyed. 68 Jeremy Waldron makes the point that rights may well be abused: In general, the attribution of rights to individuals is an act of faith in the agency and capacity for moral thinking of each of those individuals. Rights involve choices; and their exercise requires the agent to select which of a number of options he would like to realize in his life and in his dealings with others. Of course, rights may be abused, and indeed a right may be exercised wrongly. But if the typical upshot of an agent’s exercise of a right vested in him were moral havoc or a reckless or malicious assault on the interests of others, we should quickly rethink the basis of the original rights-attribution. Jeremy Waldron, Law and Disagreement (1999) 222 (internal citation omitted). See also Jeremy Waldron, ‘A Right to Do Wrong’ in Waldron, Liberal Rights: Collected Papers (1993) 63. 69 Invocation in the context of freedom of expression includes Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927, 993; Slaight Communications Inc v Davidson [1989] 1 SCR 1038, 1051; RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 [76] (La Forest J, dissenting); Ross v New Brunswick School District No 15 [1996] 1 SCR 825 [86]; R v Sharpe [2001] 1 SCR 45 [133] (L'Heureux-Dubé, Gonthier and Bastarache JJ, dissenting).

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equality the state is promoting. As we will see, the Supreme Court of Canada thinks that those costs can be avoided. The relationship between equality and freedom of expression The equal protection clause in the U.S. Bill of Rights is narrower than the equality right in the Canadian Charter, both on its face70 and in the narrower interpretation it has been given. In general, it is understood as protecting a ‘formal’ or procedural conception of equality, while the Charter equality right is understood as protecting a substantive conception of equality,71 and is concerned with discrimination on a broader array of grounds.72 Different outcomes in freedom of expression cases in the United States and Canada reflect these different conceptions of equality. But they also reflect the preeminence of freedom of expression in the United States, or liberty rights more broadly, when conflicts with equality arise.73 As Charles Fried puts it, ‘No other nation claims as fierce and stringent 70

The Equal Protection Clause in the Fourteenth Amendment provides as follows: [No state shall] ‘deny to any person within its jurisdiction the equal protection of the laws.’ In contrast, s 15(1) of the Charter contains four equalities: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 71 The U.S. Supreme Court applies a variant of the ‘similarly situated’ test. See generally John E Nowak and Ronald D Rotunda, Constitutional Law (7th ed, 2004) ch 14.2. That test was rejected by the Supreme Court of Canada in Andrews v Law Society of British Columbia [1989] 1 SCR. 143, in which the Court held that in addition to the enumerated grounds of discrimination, the right includes protection from discrimination based on analogous grounds. The history of equality law in Canada is discussed by Justice Ian Binnie in ‘Equality Rights in Canada: Judicial Usurpation or Missed Opportunities?’ in Grant Huscroft and Paul Rishworth (eds), Litigating Rights (2002) 101. 72 The equal protection clause has traditionally been understood in terms of three forms of scrutiny: rational basis – the least invasive form of judicial review – is used to evaluate economic and social distinctions; intermediate scrutiny is used in regard to distinctions based on sex; and strict scrutiny – the most invasive form of judicial review – is reserved for race-based distinctions. However, the cases no longer fit neatly into these categories. See eg, Romer v Evans, 517 US 629 (1996) (sexual orientation); United States v Virginia, 518 US 515 (sex); Grutter v Bollinger, 539 US 306 (race). See Nowak and Rotunda, above n 71, ch. 14.3(a). Charter equality is not understood as affecting economic and social distinctions per se (cf Falkiner v Ontario (Ministry of Community and Social Services) 59 OR (3d) 481 (Ont C.A.), recognizing receipt of social assistance as an analogous ground of discrimination), but extends to a wider array of grounds than the Equal Protection Clause, and no formal distinction is drawn between the prohibited grounds of discrimination in terms of invidiousness, and hence level of scrutiny. Distinctions drawn on the basis of the grounds enumerated in s 15(1) or grounds analogous to them (eg, sexual orientation, marital status, etc) are held to infringe the equality right if they have the effect of undermining human dignity. The Supreme Court of Canada set out this approach in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497. The Court discusses the comparative component of equality claims in Hodge v Canada (Minister of Human Resources Development) [2004] 3 SCR 357. 73 Not everyone supposes that liberty and equality are in conflict. Ronald Dworkin, for example, has written that equality is reflected in the First Amendment cases. On his account, the First Amendment plays an egalitarian role in contributing to political equality by requiring that everyone – even those whose views are regarded as odious – is treated as equals for purposes of contributing to the moral climate of the nation: ‘Equality demands that everyone’s opinion be given a chance for influence…’ See Dworkin, ‘MacKinnon’s Words’ in Freedom’s Law: The Moral Reading of the American Constitution (1996) 227, 236-7. See also Strossen, ‘Liberty and Equality: Complementary, Not Competing Constitutional Commitments’ in Huscroft and Rishworth, above n 71, 149.

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a system of legal protection for speech. It is the strongest affirmation of our national claim that we put liberty ahead of other values.’74 Judge Easterbrook justifies the protection of freedom of expression in American Association of Booksellers v Hudnut by reference to the evils of censorship: Racial bigotry, anti-semitism, violence on television, reporters’ biases – these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.75 There is no counterpart to this line of thinking in the Canadian cases. On the contrary, the Supreme Court of Canada has held in numerous cases that equality-inspired legislation justifies limits on the freedom of expression. For example, in upholding the constitutionality of legislation criminalizing obscenity in Butler, Justice Sopinka wrote: ‘[I]f true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material.’76 In upholding the constitutionality of legislation criminalizing hate speech, Chief Justice Dickson wrote: ‘Hate propaganda seriously threatens … the enthusiasm with which the value of equality is accepted and acted upon by society.’77 Equality and expression are seen as coming into conflict in Canada in the way that Isaiah Berlin thought inevitable,78 and typically the reconciliation works in favour of equality. Although it is often asserted that there is no hierarchy of Charter rights,79 there is no doubt that the Supreme Court of Canada is more likely to uphold limits on the freedom of expression than on the right to equality,80 and no doubt that the Court regards the pursuit of

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Fried, above n 12, 229. 771 F 2d 323 (7th Cir, 1985); aff’d 475 US 1001 (1986) (summary affirmance). Dworkin makes a similar point, when he says ‘[I]f we must make the choice between liberty and equality – if the two constitutional values really are on a collision course – we should have to choose liberty because the alternative would be the despotism of thought-police.’ Dworkin, above n 73, 236. 76 Butler [1992] 1 SCR 452, 497. 77 Keegstra [1990] 3 SCR 697, 758. Chief Justice Dickson’s decision is criticized effectively in James Weinstein, ‘An American’s View of the Canadian Hate Speech Decisions’ in Wil Waluchow (ed), Free Expression: Essays in Law and Philosophy (1994) 175, 213-18. Weinstein writes: ‘[S]uppressing speech because its message is contrary to other constitutional values is inimical to a vibrant free speech principle’ (at 217). 78 Cf Ronald Dworkin, ‘Do Liberal Values Conflict?’ in Dworkin et al (eds), The Legacy of Isaiah Berlin (2001) 73. 79 See eg, Reference re Same Sex Marriage [2004] 3 SCR 698 [50]. However, there is no doubt that equality is the driving force behind much constitutional law reform – both cases in which equality rights are asserted and cases in which equality-inspired arguments are made in support of limits on expression and other fundamental freedoms. The preference for equality in Canadian public policy can also be seen in other contexts. A striking example is the existence of the Court Challenges Program, a federal government-funded program that funds litigation involving language and equality rights. No similar funding is available for cases involving other Charter rights and freedoms. See . 80 The preference for equality is not the only thing that explains this. The broader definition of expression necessarily results in more infringements of the freedom of expression, and consequently decisions from the Court upholding the constitutionality of limits on the freedom under s 1 of the Charter. In contrast, a significant amount of definitional balancing is involved in the Court’s 75

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equality – even in the private sphere, where the Charter does not apply directly – as a compelling reason for the establishment of limits on freedom of expression. This explains the decisions in Keegstra and Butler. In both of these cases, the state’s motivation for legislating is essentially paternalistic: the people cannot be trusted to respect equality if they are exposed to the offending expression. This approach is condescending, yet it is largely uncontroversial in Canada. In a paper praising the Court’s freedom of expression jurisprudence, June Ross (now Judge Ross of the Alberta Court of Queen’s Bench) makes this point in passing: It is a basic assumption of a system of free expression that members of society possess the necessary capacities and skills to operate within such a system and benefit from it. However, the presumption that the maturity and intelligence of the populace will withstand the potential harms of expression has limits, as does the freedom. For example, government is not required to assume that Canadians, or all of them, have sufficient maturity and intelligence to resist the harmful effects of hate propaganda.81 What is striking about this passage is the lack of apparent embarrassment or regret about the point being made. The ‘basic assumption’ of respect for the populace is so easily displaced as to be practically irrelevant. So obvious is the preferred position of equality in Canada that Peter Hogg has written that ‘[i]t is arguable that the scope of s 2(b) should be narrowed to make way for a ban on expression that has as its purpose the advancement of equality. That approach would support a ban on hate propaganda without recourse to s 1.’82 Weinstein points out the inherent problem in this from an American perspective: Giving special weight to an asserted state interest just because it promotes a constitutional value is profoundly at odds with the core purpose of the First Amendment. Constitutional values are largely a matter of interpretation, and will often reflect contemporary political orthodoxy.83 In other words, no matter how worthwhile the state’s interests or values may seem, a meaningful requirement of content neutrality should mean that no one can be required to endorse them. On the contrary, the First Amendment is understood as protecting the freedom of individuals to promote interests and values antithetical not only to those of the state, but those inherent in the Constitution itself – including equality. After all, the people are entitled to change the Constitution, should they be so persuaded. The importance of equality in litigation under the Canadian Charter is not limited to the Charter conception of equality, which focuses on prohibited grounds of discrimination. Sometimes the motivation for limiting the freedom of expression reflects broader egalitarian

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definition of the equality right. This results in a narrower conception of the right, and as a result it is far less likely that infringements of the right will be justified under s 1. Ross, above n 32, 94-5 (emphasis in original), citing R v Keegstra [1991] 2 WWR 1, 54-5. Cf Thomson Newspapers Co v Canada (Attorney General) [1998] 1 SCR 877, 949 (rejecting ban on polling defended on the basis that voters might be confused): ‘Canadian voters must be presumed to have a certain degree of maturity and intelligence.’ According to Ross, the Court’s statement ‘begs the question as to when and how the presumption is displaced’ (95). Hogg, above n 8, ch 40.9. This suggestion is consistent with Hogg’s program of purposive interpretation, coupled with strict s 1 (reasonable limits) test as means of limiting the scope of judicial review under the Charter. Weinstein, ‘Taking Liberties with the First Amendment’ (1998) 17 Law and Philosophy 159, 167. Not everyone agrees with this, of course. See eg, Catharine A MacKinnon, Only Words (1993), praising the Canadian approach.

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concerns. A good example here arises in the context of regulating elections, another example of the difference between American and Canadian conceptions of the freedom of expression. In Buckley v Valeo,84 the U.S. Supreme Court established a complicated framework for the regulation of political expenses and donations, limiting the amount that could be contributed to candidates while freeing them of spending limitations. Campaign financing reform has continued to be a political problem and legislative reform has been a political issue ever since. I do not want to get into the detail of American campaign financing law.85 The important point is the understanding of the First Amendment that underlies the Supreme Court’s decision in Buckley. The Court made the point succinctly and categorically: ‘[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment…’86 In this passage the Court recognizes the existence and continuation of imbalances in private power, while emphasizing the traditional negative, government-limiting conception of the First Amendment. On this view, all that matters is the absence of government constraints on making one’s views known, whatever means one may have. Inspired by Buckley, judges in Alberta, arguably Canada’s most politically conservative province,87 struck down federal election spending legislation on two occasions.88 The Supreme Court of Canada disapproved of these decisions,89 however, and when the chance

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424 US 1 (1976). Those who do, do so at their peril: a recent decision from the Federal Court of Appeals runs to hundreds of pages, and is split into several parts on Lexis as a result. See McConnell v FEC 251 F Supp 2d 176 (2003). A sense of the complexity of the issue can be seen in the introduction to the Supreme Court’s decision in McConnell v FEC 540 US 93 (2003): Stevens and O'Connor, JJ, delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ, joined Rehnquist, C J, delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'Connor, Scalia, Kennedy, and Souter, JJ, joined, in which Stevens, Ginsburg, and Breyer, JJ, joined except with respect to BCRA § 305, and in which Thomas, J, joined with respect to BCRA §§ 304, 305, 307, 316, 319, and 403(b). Breyer, J, delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O'Connor, Souter, and Ginsburg, JJ, joined. Scalia, J, filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J, filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§ 311 and 318, concurring in the result with respect to BCRA § 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and § 311, in which opinion Scalia, J, joined as to Parts I, II-A, and II-B. Kennedy, J, filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C J, joined, in which Scalia, J, joined except to the extent the opinion upholds new FECA § 323(e) and BCRA § 202, and in which Thomas, J, joined with respect to BCRA § 213. Rehnquist, C J, filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ, joined. Stevens, J, filed an opinion dissenting with respect to BCRA § 305, in which Ginsburg and Breyer, JJ, joined. 86 424 US 1, 48-49 (1976). 87 It should be noted, however, that provincial superior court judges are appointed by the federal government. 88 See eg, National Citizens' Coalition v Attorney General of Canada (1984) 11 DLR (4th) 481; Somerville v Canada (Attorney General) (1996) 136 DLR (4th) 205 (Alta C.A.) 89 Libman v Quebec [1997] 3 SCR 569. The Court described the purpose of limiting referendum campaign expenditures in order to establish an equality of resources, and thereby enhance democratic expression, as ‘highly laudable’. The Court held, however, that Quebec legislation prohibiting third party spending in a sovereignty referendum campaign was unconstitutional. 85

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came to confront the matter squarely, the Court rejected the Buckley approach in Harper v Canada.90 Harper concerned a challenge to the constitutionality of federal legislation that limits third party spending during election campaigns. As the dissenting Justices pointed out, the spending limits are severe:91 in effect, they put radio and television communication beyond the reach of ‘third party’ citizens.92 Nevertheless, a majority of the Court held that these limits were justified limits on the freedom of expression under the Charter. Election spending cases are difficult, in my view, because the idea that the wealthy should not dominate public political discourse has great intuitive appeal. The appeal of this idea can be misleading, of course, since it is simplistic to suppose that elections pit rich against poor. Nevertheless, the same egalitarian motivation can be seen in American and Canadian electoral legislation, and the approaches taken by the highest courts in the two countries reflect the same sorts of differences evident in other leading expression controversies. Consider these two statements from the leading cases. First, the U.S. Supreme Court in Buckley: It is argued … that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by [the] expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment…which was designed ‘to secure “the widest possible dissemination of information from diverse and antagonistic sources,”’ and ‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ …The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion.93 Now consider the Supreme Court of Canada’s justification for the constitutionality of legislation limiting third party expenditures in Harper: [T]he egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power. The state can equalize participation in the electoral process in two ways. …First, the State can provide a voice to those who might otherwise not be heard. The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties. Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well. In Canada, electoral regulation has focussed on the latter by regulating electoral spending through comprehensive election finance provisions. These provisions seek to create a level playing field for those who wish to engage in the electoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by

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[2004] 1 SCR 827 (‘Harper’). Buckley is not specifically discussed in the judgment. The Canada Elections Act, SC 2000, c 9, s 350(1) limits citizens to a maximum of $3,000 on advertising in each electoral district, up to a total of $150,000 nationally. The limit applies to anything that names candidates, shows their likeness, identifies their political affiliation, or takes a position on a matter with which they are associated. 92 Harper [2004] 1 SCR 827 [4]. McLachlin CJ and Major J demonstrate the ‘meagerness’ of the limits by noting, among other things, that a one-time, full page advertisement in a major newspaper costs approximately $425,000. 93 424 US 1, 48-9 (1976) (internal citations omitted). 91

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another. In contrast, the libertarian model of elections favours an electoral process subject to as few restrictions as possible.94 These views could not be more different, and the decision to adopt one rather than the other has nothing to do with the way in which freedom of expression is constitutionally protected in either country.95 INTERNATIONAL INFLUENCES A country’s openness to international norms is another important factor in determining the protection that courts will afford to the freedom of expression under a bill of rights. There is not space for a fuller consideration of this point, but a brief comparison of American and Canadian approaches is instructive. Consider first the American approach to the International Covenant on Civil and Political Rights,96 which protects the freedom of expression. Although the United States ratified the treaty (but not the Optional Protocol) in 1992, it entered the following declaration: [I]t is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant. For the United States, Article 5 paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations.97 The irony of this declaration is striking. From an international perspective, the U.S. Bill of Rights is something of a relic: an old bill of rights that has not kept pace with modern times. It does not include much that would go into a modern bill of rights, and at the same time it includes much (like property and the right to bear arms) that would likely be excluded. From the U.S. perspective, however, the international rights model is the defective one: by authorizing the establishment of limitations on rights and freedoms in effect it encourages their establishment, and thereby diminishes the currency of rights and freedoms, and in particular the freedom of expression. When it comes to protecting freedom of expression, Americans do not think that they have anything to learn from the international community, which in their view is too amenable to limiting fundamental freedoms.98 For its 94

Harper [2004] 1 SCR 827 [62] per Bastarache J (internal citation omitted). To the extent that McConnell undermines Buckley, this confirms rather than undermines the point I am making. Nothing in the US Bill of Rights requires the outcome in Buckley, and nothing prevents it from being overturned by the Court. 96 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) (‘ICCPR’). 97 US reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong Rec S4781-01 (daily ed, 2 April 1992). 98 Indeed, until recently international influences have had little or no effect on the development of American constitutional law, and it was almost unheard of for decisions under international human rights instruments or foreign bills of rights to be considered by the U.S. Supreme Court. See Allan and Huscroft, ‘Constitutional Rights Coming Home to Roost: Rights Internationalism in American Courts’ (2006) 43 San Diego L Rev 1 (2006). 95

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part, the international community is bemused by what it perceives as the libertarian excesses of the American approach. Unlike the United States, Canada is an enthusiastic player internationally, and among other things it allows petitions to be taken to the U.N. Human Rights Committee under the Optional Protocol to the ICCPR. The Supreme Court of Canada has, as a result, asserted that international human rights norms establish a sort of baseline for the interpretation of the Canadian Charter.99 Thus, it is not surprising that Canadian and American courts reached different decisions in the hate speech cases, to take one example. Outside the United States, there is a clear international consensus as to the importance of limitations on the freedom of expression when it comes to racist expression.100 Indeed, the closeness of the Supreme Court of Canada’s decision in Keegstra – a 4:3 majority on a court operating at less than full strength – seems surprising in retrospect. It is unlikely, however, that more than one supporter of the minority position from Keegstra could be found on the Court today.101 In essence, there is constitutional settlement on hate speech in Canada, and it came early in the life of the Charter. The extent of the settlement can be seen in the passage of recent legislation expanding the hate speech laws to include sexual orientation – this despite a national campaign of opposition on the basis of concerns that the law would harm freedom of religion.102 The various human rights treaties encourage an equality-centered conception of freedom of expression rather than the liberty-centred conception that animates First Amendment case law. The Americans adopted that conception in part because of their history,103 and that history is unique. The mistrust of and hostility towards government that characterizes American constitutional law is seldom seen in other countries, and certainly not to the same extent. In short, Americans prefer to put their faith in individuals where freedom of expression is concerned. Australians may be closer to Canadians than Americans when it comes to the relevance of international norms, but Australian receptiveness to these norms cannot be taken for granted. For every enthusiast of internationalism like Justice Kirby, there is a Chief Justice Gleeson.104 Adoption of an Australian bill of rights might well strengthen Justice Kirby’s

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Dickson CJC put the point this way: ‘I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.’ See Re Public Service Employee Relations Act [1987] 1 SCR 313, 349-50. To the extent that the Charter cannot be so interpreted, international norms may be accommodated by way of the common law, and in particular in administrative law. See Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817. Baker is discussed at length in the various contributions to David Dyzenhaus (ed), The Unity of Public Law (2003). 100 See Articles 19(3) and 20 of the International Covenant on Civil and Political Rights, as well as the Convention on the Elimination of Racial Discrimination. 101 Chief Justice McLachlin, who wrote the Keegstra dissent (prior to her elevation to Chief Justice) remains on the Court, but my sense is that she regards the issue as settled. 102 Bill C-250 added sexual orientation to the list of ‘identifiable groups’ in s 318(4) of the Criminal Code, and expanded the defence slightly to include good faith expression or attempt to establish by argument ‘an opinion on a religious subject or an opinion based on a belief in a religious text’ (emphasis on amended terms). The government did not refer any question concerning the protection of religious freedom to the Supreme Court, as it did in the case of proposed same-sex marriage legislation. The latter, of course, was a more politically charged matter. See Huscroft, above n 8 at 255-63, and Huscroft, ‘Political Litigation and the Court’s Response’ (2006) Sup Ct L Rev (forthcoming). 103 Fried, above n 12, 229: ‘American free speech law is as much a product of our history as it is a true deduction from valid premises.’ 104 Justice Kirby criticizes Chief Justice Gleeson’s opposition to the use of international authority in Coleman v Power (2004) 220 CLR 1, and declares confidently: ‘In time, the present resistance to the interpretive principle that I favour will pass’ (at [244]).

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hand, but whether any great changes to freedom of expression would result is difficult to say.105 CONCLUSION If, as I have argued, differences in American and Canadian freedom of expression law reflect differences in the political culture of the two countries, what might the protection of freedom of expression in an Australian bill of rights mean? Proponents of bills of rights appear to be taking a cautious approach to the protection of the freedom. The report recommending the adoption of the Victoria Charter of Human Rights and Responsibilities extolled the virtue of judicial review on rights based questions, yet it recommended the establishment of substantial limits on the power of courts. In particular, it advised that courts should not to have the power to ‘strike down’ inconsistent legislation, something it said would preserve parliamentary sovereignty.106 Nevertheless, in addition to limiting judicial power it proposed to enhance the certainty with which the Victoria Charter would apply by enumerating relevant factors that would have to be taken into account in assessing the justifiability of limits on the protected rights and freedoms.107 In addition, at several points the report proposed draft language to avoid results that have obtained in litigation under similar provisions in other jurisdictions. The report’s treatment of freedom of expression is a good example of this approach. The drafters of the report were keen to avoid the outcome in controversial decisions like RJR MacDonald Inc. v Canada (Attorney General),108 in which the Supreme Court of Canada held (5:4) that a ban on tobacco advertising constituted an unreasonable limit on freedom of expression – an outcome that would undoubtedly be reached by the US Supreme Court. Thus, the report recommended that a specific provision allowing limits on the freedom of expression be included alongside the statement of the freedom, based on a similar provision

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Simon Evans and Adrienne Stone observe that the majority’s conclusion in Coleman that law promoting civility is incompatible with the freedom of political communication has an affinity with First Amendment law, and that ‘Australian free speech law may yet develop in surprising ways’. See Evans and Stone, ‘Freedom of Speech and Insult in the High Court of Australia: Coleman v Power’ in International Journal of Constitutional Law (forthcoming). As they note, ‘value judgments are intrinsic to adjudication of cases involving the implied freedom’. 106 I wonder how meaningful this preservation will turn out to be. Despite a number of limits on judicial power, the report proposes a further provision that has the potential to increase the importance of judicial review immensely. In particular, the report proposes the establishment of an interpretive requirement, mandating courts to interpret legislation in a manner consistent with the protected rights and freedoms so far as that is possible, consistent with its purpose. This provision has the power to alter the political status quo by requiring the Victoria legislature to act to overcome judicial decisions of which it disapproves. That it can do so with ordinary legislation is of less moment than the fact that it must act at all. It can be difficult to legislate at the best of times, and there is no telling how much more difficult it would be in the face of opposition from the courts about the meaning of rights. My sense is that it is intended to be difficult indeed: for proponents of judicial review, legislative acquiescence to judicial decisions is the next best thing to formal subservience to the courts. 107 Recommendation 8. In my view, the proposed factors (the nature of the right; the importance and purpose of the limitation; the nature and the extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose) are so general as to be useless in the absence of any guidance as to the weight they should receive, and of course this is impossible. The purpose of a reasonable limits provision is to invite courts to engage in rationality and proportionality analysis, and there are no right answers here. 108 [1995] 3 SCR 199 (‘RJR MacDonald’).

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in the ICCPR. The provision would make clear that freedom of expression is subject to limits to protect the rights or reputations of others, national security or public health.109 This recommendation reveals the real difficulty faced by proponents of bills of rights. Once it is admitted that certain interpretations of rights are undesirable, such that they should be avoided, it is not surprising to find steps being taken to stave them off. But proponents of bills of rights know, or ought to know, that it may be impossible to do so, and in some ways illegitimate in any event according to their own theory of judicial interpretation, which tends to regard bills of rights as organic or living instruments.110 The attempt to avoid the result in RJR MacDonald, in particular, is based on a misunderstanding. The ban on tobacco advertising was held unconstitutional by the Supreme Court of Canada in RJR MacDonald not because the protection of public health was not considered a sufficiently important reason for limiting the right111– the tobacco companies conceded the importance of the government’s objective – but instead because a majority of the Court concluded that the legislation went farther than necessary. In other words, the legislation failed for want of proportionality. As Canadian experience demonstrates, there is no way of ensuring that particular results are reached once courts become engaged in proportionality analysis.112 I want to conclude by returning to a case I mentioned at the outset of this paper, Coleman v Power. In its lengthy decision in Coleman, a majority of the High Court held that a conviction for using ‘insulting words’ in a public place against a police officer (whom the appellant protester called ‘corrupt’) infringed the implied freedom of communication. I am not unsympathetic to the outcome in this case, although it is arguably a bit of a stretch under the freedom of communication inferred from the Australian Constitution. At least, a minority of the Court thought so. But I do not want to argue about the particulars of the decision in Coleman. I raise the case as an example of both the sorts of disputes that judges may be asked to resolve if freedom of expression is protected under a bill of rights, and the irrelevance of constitutional form where freedom of expression is concerned. An interesting comparison can be drawn between Coleman and a case under the European Convention on Human Rights.113 The ECHR provides broad protection for freedom of expression – certainly broader than the implied freedom of communication in Australia – and sets out detailed and specific purposes and means pursuant to which the freedom may be limited.114 In Janowski v 109

Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee, above n 1, 44. 110 See Grant Huscroft, ‘The Trouble with Living Tree Interpretation’ in this volume. 111 The minority of the Court noted a concession of the tobacco companies that ‘the objective of protecting Canadians from the health risks associated with tobacco use, and informing them about these risks, is pressing and substantial.’ RJR MacDonald [1995] 3 SCR 199 [61]. The majority upheld the objective of the advertising ban on a narrower basis: ‘While the limited objective of reducing tobacco-associated health risks by reducing advertising-related consumption and providing warnings of dangers is less significant than the broad objective of protecting Canadians generally from the risks associated with tobacco use, it nevertheless constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter’ (at [146]). 112 In another attempt to avoid controversial decisions, the report recommends that corporations not be allowed to exercise Charter rights. 113 213 UNTS 221 (entered into force 3 September 1953) (‘ECHR’). 114 Article 10 provides: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are

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Poland,115 a journalist invoked the freedom of expression in challenging his conviction for insulting a civil servant carrying out official duties. The complainant had remonstrated with two municipal employees who had ordered street vendors from a public square, challenging the legality of their actions and calling them ‘oafs’ and ‘dumb’. For this, he received a suspended sentence of imprisonment and a fine, reduced on appeal to a fine and court costs. He appealed to the European Court of Human Rights in Strassbourg. Janowski and Coleman seem to be similar cases, but it might be thought that Janowski is the easier case. After all, in Janowski freedom of expression was specifically protected, while in Coleman the appellant had only the benefit of the narrower freedom of communication inferred from the Australian Constitution. Nevertheless, Janowski’s appeal was unsuccessful. The majority of the European Court of Human Rights made all of the familiar and by now obligatory observations about freedom of expression: it ‘constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment;’ its protection extends to the expression of ideas that ‘offend, shock or disturb’; and limits on the freedom ‘must … be construed strictly, and the need for any restrictions must be established convincingly’.116 But the majority of the Court concluded that there were ‘relevant and sufficient’ reasons to justify the conviction, and that the interference with freedom of expression was proportionate to the state’s aim of protecting civil servants from abuse. The majority considered it noteworthy that a sentence of imprisonment was quashed, and that Janowski’s fine had been reduced. In the circumstances, the majority of the Court concluded that the state had not overstepped the margin of appreciation it enjoyed in limiting the freedom of expression. Janowski strikes me as a silly case. It is a salutary reminder, however, that there are no guarantees where freedom of expression is concerned – whether or not it is protected in a bill of rights.

necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 115 (2000) 29 EHRR 705. 116 (2000) 29 EHRR 705 [30].