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CKA Uber
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PostPosted: Wed Mar 06, 2013 2:03 pm
 


Filibuster Cartoons
Title: Playing with free speech (click to view)
Date: March 6, 2013
I'm not normally the sort of person to make a big fuss over philosophical differences between the United States and Canada, but man, if you want a good example of an area where the two countries sit entire solar systems apart, check out these two recent Supreme Court rulings on freedom of speech.

Back in 2011, the Supreme Court of the United States agreed to hear a case testing the constitutionality of those horrible protests the Westboro Baptist Church people stage all the time. In particular, they were called to consider a Church rally against the funeral of Corporal Matthew Synder, a deceased Iraq veteran. Synder's father claimed the Westboro rally, with their hateful "FAGS DOOM AMERICA" signs and all the rest of it, caused him emotional distress for which he deserved compensation from the Phelps family. The Phelps clan claimed they had a constitutional right to say whatever they wanted.

And in an 8-1 ruling the Court sided with Westboro.

"Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment," wrote Chief Justice Roberts, on behalf of the Court's majority. "Such speech cannot be restricted simply because it is upsetting or arouses contempt."

Citing his Court's long history of similar findings, the Chief Justice quoted an elegant line from a similar free speech test case back in 1989: "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."

Now flash forward to last week, where a unanimous ruling of the Supreme Court of Canada reached the exact opposite conclusion.

Saskatchewan native William Whatcott was basically a mini-Phelps who enjoyed handing out flyers to strangers about how "sodomites" were ruining Canadian schools or something. Someone was offended, and tried to prosecute Whatcott under the Saskatchewan human rights code, which forbids the distribution of material that could expose minorities to "hatred and contempt." Whatcott said he had a constitutional right to say whatever he wanted under the Canadian Charter of Rights and Freedoms.

No you don't, replied the Supremes.

"The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression," wrote Justice Marshall Rothstein, speaking for his peers.

Hate speech is so harmful, in fact, that even the truth is not a defence.

"Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction," the consensus opinion continued. "Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness."

Both rulings were very much consistent with larger national trends.

The United States Supreme Court strikes down free speech restrictions with such predictable consistency you really have to wonder why anyone even tries anymore. In 2010 the judges ruled 8-1 in favor of the constitutionality of sick "crush video" fetish films that titillate audiences by showing pretty women killing small animals. In 2011 they ruled 7-2 that American kids have a constitutional right to buy violent video games. In 2012 they found that the First Amendment entitles citizens to lie about their military background and how many medals they won, and most infamously, in 2009 they narrowly ruled that unions and corporations have a constitutional right to spend as much money as they want on election-year advertising. It seems likely that they'll soon rule that individuals have a right to give as much money to political parties and candidates as they want, too.

The Supreme Court of Canada, by contrast, has rarely met a restriction on free speech it didn't like. Even before the Whatcott case, the court upheld restrictions on "hate speech" in two landmark 1990 cases, and in 2004 (in a suit launched by a young Stephen Harper) they ruled in favor of spending restrictions on third-party advertisers during election campaigns. In 1992 they upheld a ban on "degrading or dehumanizing" pornography and in 2000 they let stand a law preventing such smut from being imported (both of which allowed Canada to maintain its infamous banned book list). In 2007 they upheld government restrictions on where and how you could advertise cigarettes, and in 2010 they issued a much-hated 8-1 ruling denying the right of journalists to hide their sources.

Doubtless you'll agree with some of the Canadian rulings and disagree with some of the American ones (and vice-versa), but it's important to realize the degree to which all are the products of two very distinct constitutional philosophies.

The American First Amendment declares bluntly that "Congress shall make no law... abridging the freedom of speech, or of the press," while the Canadian Charter of Rights and Freedoms cautions that civil rights are subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" before announcing that Canadians have "freedom of thought, belief, opinion and expression" etc.

In practice, both Supreme Courts have run as far as they can — in opposite directions — clinging their respective constitutional clauses. The Canadians obsess endlessly over what is and isn't a "reasonable limit" on expression, which often involves convoluted attempts to clarify how they are protecting some vaguely-defined "public interest" (usually safety) in restraining this-or-that kind of bad-speech, while the Americans simply give every disputed law a quick up-or-down once over: it either restrains free expression (which is bad) or it doesn't (which is good). Canadian rulings on the speech question are often a mess of ifs and whethers, and complex theoretical "tests" to determine the harm or innocuousness of some controversial statement or publication. American ones usually just say the same thing over and over: free expression is absolute, but it often looks ugly.

Most Canadians like to believe that a hearty respect for free speech is actually something that unites North America. Certainly there's ample evidence, as illustrated by a flood of editorials opposing the Whatcott ruling in all the major papers, that our Supremes' literal and unapologetic embrace of "reasonable limits" on civil rights is actually quite at odds with the mainstream Canadian understanding.

But, alas, constitutional law is one of those realms where what the people want or think doesn't matter a whole lot. With every Canadian Supreme Court ruling on free expression, the precedent of censorship gets stronger, and Canada's status as a nation with an asterisk beside its right to uninhibited communication becomes a more entrenched component of the distinct Canadian identity.

It's distinctly troubling.


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PostPosted: Wed Mar 06, 2013 2:22 pm
 


Yes, I'm closer to the US pov. I think free speech good. Don't like the speech, use your own free speech to counter it, or your freedom of association to not associate with the speaker.


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PostPosted: Wed Mar 06, 2013 2:27 pm
 


It's like guns, you don't like when somebody shoots at you, shoot back. :wink:


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PostPosted: Wed Mar 06, 2013 2:28 pm
 


No, I'm way over on the Canadian, or better yet Australian side on that one. Sticks and stones and all that.


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PostPosted: Wed Mar 06, 2013 3:54 pm
 


I hate this decision. Any ruling that uses as many vague definitiions and soft terms as thisone did deserves to be scrapped.\

There is absolutely no right to never have your feelings hurt. And truth not being a valid defense is just crazy. So many things wrong here.


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PostPosted: Wed Mar 06, 2013 4:12 pm
 


The decision was the correct one. The law is there to limit the amount of damage a person can cause to others just because he feels like doing it. I've never met anyone yet who needed to publicly call anyone a n****r to their face because they had a right to do so. They do things like that with speech because they're sadistic goddamn bullies who get a sick thrill from hurting other people, not heroes fighting on behalf of civil liberties or other allegedly noble causes. There's nothing noble about it at all when far too often it's just some brat who wants to act like as big an idiot in public as he wants to and then has the gall to say "it's my right to do so and you idiots just have to put up with it". When the rights-over-responsibilities arguments are actually fought on the behalf of important principles instead of just to enable sadists and nutcases to cause as much damage as they can to others then I'll take it more seriously. As it is I am certainly not a purist who thinks that the rights of troublemakers like Ezra Levant or Bill Whatcott are my responsibility to protect or ensure.

And in the maze of Canadian law, our balance of reponsibilities over rights also ensures that we also don't have to put up with an atrocity like the Citizens United decisions, an absolutely terrible decision that is going to do untold damage to individual rights in the United States in the name of the thoroughly fictitious concept of corporate free speech "rights". This decision is a disaster and instead of ensuring free speech all it's going to do is ensure that 1% scum like the Koch brothers and Sheldon Adelson will one day succeed in the openly wholesale purchase of an American president to do their direct bidding to the harm of the needs of all others. How anyone can think SCOTUS decisions like that will do anything but corrosively harm the American system is unbelievable.

Bill Whatcott didn't speak any of the so-called "truth" either. From a medical and social science perspective everything he said about homosexuals was convincingly debunked years ago. As the old saw goes, he has a right to his own opinion but he doesn't have a right to make up his own "facts".


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PostPosted: Wed Mar 06, 2013 4:18 pm
 


Some people aren't very good with speech, free or not, so it's not fair for them when someone who's good at it, attacks them with it. I would agree with free speech, but only if the "free speech impaired" could fight back with a free punch in the face.


Last edited by raydan on Wed Mar 06, 2013 5:03 pm, edited 1 time in total.

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PostPosted: Wed Mar 06, 2013 4:54 pm
 


Newsbot wrote:
"Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction," the consensus opinion continued.

The True* North Strong and Free?

*Only inoffensive truth.


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PostPosted: Wed Mar 06, 2013 6:30 pm
 


Frankly I'm in agreement with the Americans on most of this with the exception of electoral spending and campaign contributions.

Frankly it's important that one parties message isn't drown out in a huge wave of slander for democracy to truly take form in elections. Major parties need to have sufficient voice for elections to truly mean anything and sometimes if one side produces nothing but huge smear campaigns it gets far too lost in the process.


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PostPosted: Wed Mar 06, 2013 7:03 pm
 


What a unmitigated disaster the Whatcott decision is for Canada. Whoever thinks that:

Quote:
"Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction," the consensus opinion continued. "Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness."


is in any way healthy for civil discourse in Canada is quite possibly kidding themselves. Think of, for example, discussing the Israeli-Palestinian conflict. "Oh what you just said was anti-Semitic/Arab/Muslim/! It's illegal! Who gives a fuck you're just telling the truth, I'm offended!"


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PostPosted: Thu Mar 07, 2013 3:54 am
 


Thanos wrote:
The decision was the correct one. The law is there to limit the amount of damage a person can cause to others just because he feels like doing it. I've never met anyone yet who needed to publicly call anyone a n****r to their face because they had a right to do so.
It's called rap music.

Thanos wrote:
They do things like that with speech because they're sadistic goddamn bullies who get a sick thrill from hurting other people, not heroes fighting on behalf of civil liberties or other allegedly noble causes.
No one has the right to remain unoffended. Not me, not you, not anyone. If someone decides to abuse his/her right of free speech, someone else can use free speech to counter it. What's next, banning Triumph the Insult Comic Dog?

Thanos wrote:
There's nothing noble about it at all when far too often it's just some brat who wants to act like as big an idiot in public as he wants to and then has the gall to say "it's my right to do so and you idiots just have to put up with it".
That's why we have the phrase, "Shut the [expletive] up," and all of its wonderful variations.

Thanos wrote:
When the rights-over-responsibilities arguments are actually fought on the behalf of important principles instead of just to enable sadists and nutcases to cause as much damage as they can to others then I'll take it more seriously. As it is I am certainly not a purist who thinks that the rights of troublemakers like Ezra Levant or Bill Whatcott are my responsibility to protect or ensure.
If you restrict their speech, you risk making them "martyrs" for whatever pathetic "cause" they rally behind.

Thanos wrote:
And in the maze of Canadian law, our balance of reponsibilities over rights also ensures that we also don't have to put up with an atrocity like the Citizens United decisions, an absolutely terrible decision that is going to do untold damage to individual rights in the United States in the name of the thoroughly fictitious concept of corporate free speech "rights". This decision is a disaster and instead of ensuring free speech all it's going to do is ensure that 1% scum like the Koch brothers and Sheldon Adelson will one day succeed in the openly wholesale purchase of an American president to do their direct bidding to the harm of the needs of all others. How anyone can think SCOTUS decisions like that will do anything but corrosively harm the American system is unbelievable.
I agree; money talks, but in a far more quantifiable way than words; therefore, it should be more heavily regulated because its effects are easier to predict.

Thanos wrote:
Bill Whatcott didn't speak any of the so-called "truth" either. From a medical and social science perspective everything he said about homosexuals was convincingly debunked years ago. As the old saw goes, he has a right to his own opinion but he doesn't have a right to make up his own "facts".
What makes me so uncomfortable is that by similar logic, insults, trolling, and numerous Disney works should be illegal in Canada.


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PostPosted: Thu Mar 07, 2013 8:46 am
 


I have to admit I'm torn - I don't like censorship, but I don't like hate speech either. In theory, there should be a happy middle ground, but if I had to choose, I'd probably pick free speech over restricting it.


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PostPosted: Thu Mar 07, 2013 9:04 am
 


Thanos wrote:
I've never met anyone yet who needed to publicly call anyone a n****r to their face because they had a right to do so.

No one will defend bullies, but it's not called the Charter of Needs.


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PostPosted: Thu Mar 07, 2013 9:11 am
 


People jabber on about freedoms in our society yet they completely forget about responsibilities. 'Free' speech is like fire.


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PostPosted: Thu Mar 07, 2013 9:16 am
 


We have latest developments in this story

Shindico president files defamation suit over posters
Quote:
The president of Winnipeg's Shindico Realty is suing a former city council candidate for defamation.

Sandy Shindleman, along with his brother, have filed a defamation suit against Gordon Warren following the emergence of what they describe as anti-Semitic posters in downtown Winnipeg.

The posters appeared in the city in September 2012 and alleged Winnipeg mayor Sam Katz, the Shindleman family and other members of Winnipeg's business community were involved in questionable business transactions.

Winnipeg police investigated the matter, and Katz expressed disgust over the posters, which B’Nai Brith and others deemed anti-Semitic.

However, police announced their investigation found the posters broke no laws.

On Friday, a local media outlet reported Warren, now a local blogger, came forward and accepted responsibility for the posters.

Shindleman said he wants the courts to ban Warren from publishing any further comments about his family.

“I’m speaking for the community against bigoted, racist people,” he said.

“No matter who it’s for, people like this need to be stopped.”
He added he was disappointed the Crown’s attorney wasn’t able to pursue the case as a hate crime at the time it happened.

Robert Tapper, the Shindlemans’ lawyer, said the lawsuit is aimed to stop Warren from spreading similar comments in the future.

“He doesn’t hide his racism. You don’t have to interpret whether he’s a racist. He tells you he’s a racist,” said Tapper.

“He’s in your face!”

Tapper said he’s asked the court for an injunction that would ban Warren from posting any more comments about Shindleman or his company online until the case is heard in court.

The allegations contained in the lawsuit have not been proven in court.

Warren was unavailable for comment on Wednesday. He is set to appear in a Winnipeg courtroom on March 26.


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