Freedom of Speech and Other Freedoms - Case Study Example

Freedom of Speech and Other Freedoms Introduction La Forest, J., in the case RJR MacDonald Inc. v. Attorney General of Canada, d that “Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts,” (RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311). From this very strong statement arise some very important questions. These include issues as to the extent this approach to freedom of expression essentially rob it of any fundamental value; the extent to which this approach reflect a more sophisticated and nuanced view of rights and freedoms in Canadian society; the kind of approach to freedom of expression that the court should adopt and finally if the understanding of LaForest’s approach to freedom of expression would help explain the way the Supreme Court of Canada has decided similar cases. This paper hopes to answer the said questions using cases such as Irwin Toy Ltd. v. Quebec, Cohen v. California, Virginia v. Black et al., R v. Keegstra and Ross v New Brunswick School District No. 15. Does the Statement Rob the Freedom of Expression of Its Fundamental Value? The statement of La Forest in the case of RJR MacDonald Inc. v. Attorney General of Canada somehow rob it of its value to some extent as freedom of expression was said to be deeply rooted in the Constitution of Canada and guaranteed under the Quebec Charter (Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927). The reason for this was in order to ensure that every individual might be able to freely express their beliefs, thoughts or opinions even if they are contrary to what is popularly believed. Being a “fundamental” protection guaranteed under the Canadian and Quebec Charters, the variety of opinions, thoughts and ideas are valued both by the community and the individual (Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927). Free expression, in Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327 cited in the Irwin Toy Ltd. v. Quebec case, stated that it is the “matrix, the indispensable condition of nearly every other form of freedom” (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327). Furthermore the right to free expression is given such great significance as in the case of Cohen v. California which stated that it is a “powerful medicine in a society as diverse and populous as ours,” (Cohen v. California, 403 U.S. 15 (1971). In the said case it explained the importance of the views of each individual especially in making decisions to avoid government restraints to achieve a ‘more perfect polity’ and competent citizenry that make up the political system. The state cannot therefore prescribe the form or content of what the expression would or would not be (Cohen v. California, 403 U.S. 15 (1971). When compared to what La Forest expressed, these cases seem to give such great significance to freedom of expression than any other freedoms. However, as we would further delve into the court’s explanation in the different case laws, the state has the right to regulate this freedom especially if it aims to protect individuals. And this does not mean at all that the value of such fundamental freedom of speech or expression is lessened. As held in the case of Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927, the purpose of the government in enacting sections in the Consumer Protection Act is to protect a group of children under the age of thirteen considered vulnerable to methods of seduction and exploitation or manipulation that are apparent in advertising Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927. In the case of Virginia v Black, freedom of expression may regulated especially if it intends to intimidate another person (538 U.S. 343 (2003). In R. v. Keegstra, the provision under the Criminal Code of Canada which prohibited the ‘willful promotion of hatred against an identifiable group’ was upheld as constitutional and set a reasonable limit to the freedom of expression, aiming to protect not only the targeted group but also prevent the negative implications of such promotion of hatred ([1990] 3 S.C.R. 697). Finally in the case, Ross v New Brunswick School District No. 15, the Court upholds that there must be reasonable limits on the freedom of expression especially on racist and discriminatory comments against Jewish people even if made on an off-duty hour by a teacher of a public school as this made a so-called ‘poisoned environment’ in the school district that negatively distressed Jewish children in said school district (1996 CanLII 237 (S.C.C.). Essentially, these cases all aim to protect individuals or group of individuals and thus limit or regulate in some way the freedom of expression. In all these cases, it does not lessen the value of freedom of expression but it merely considers other rights and interests. Freedom of expression is still recognized of its value as there are limitations and restrictions that must be satisfied first in order for infringement to be justified, and without which, the freedom of expression should still be upheld. In the above mentioned cases, protection for individuals were mostly the primary consideration why freedom of expression was restricted or limited to a certain extent. Does La Forest’s approach reflect a more sophisticated and nuanced view of rights and freedoms in Canadian society? La Forest’s statement somehow reflects his view however in a manner which more or less aims to balance freedom of expression with other interests. In the case of Irwin Toy Ltd. v. Quebec, the government’s enactment of the Consumer Act particularly prohibiting particular content of expression in commercial advertising was claimed by the plaintiff to have infringed on the freedom of expression ([1989] 1 S.C.R. 927). However, the Court in this case explained that this enactment was a limitation to such freedom aimed in protecting children vulnerable and likely to be manipulated by such advertising. Such Act aimed to remedy the imbalance between producers and consumers, the consumers being the children in this case, who do not have the ability to distinguish between what is real and what is not and the objectives of those being shown in advertisements (Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927). The limitation on the freedom of expression is justified in that that the enactment aimed to protect the children who are subject to commercial manipulation which also was held to have minimum impairment on the part of the advertisers (Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927). The Court also explained that the effects of such a limitation or restriction are not so harsh as to prevail over the government’s very important and vital objective (Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927). Advertisers can always express their message to parents and others who are considered as adults (Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927). In R. v. Keegstra, the Court explained that the provision in the Criminal Code which punishes communicating statements that willfully promotes hatred against any identifiable group by imprisonment, was said to be a ‘reasonable limit” on the freedom of expression ([1990] 3 S.C.R. 697). In this case, a highschool teacher was charged under this Criminal Code for communicating anti-semitic statements to his students, teaching them that the Jews had different evil qualities ([1990] 3 S.C.R. 697). He however argued that such provision unjustifiably infringed on his freedom of expression ([1990] 3 S.C.R. 697). The court however elucidated that the objective of this provision in the Criminal Code is so significant in that it seeks to avoid any injury as a result of such hate propaganda ([1990] 3 S.C.R. 697). The Parliament therefore in order to lessen the tension between different groups which may be religious, racial or ethnic determined to restrain this through the Criminal Code ([1990] 3 S.C.R. 697). Hence, in this case, the court held that such particular provision of the Criminal code “does not unduly impair freedom of expression” and also sets limits as to the definition of acts or activities covered or are prohibited under the law ([1990] 3 S.C.R. 697). Ross v New Brunswick School District No. 15 involved a teacher, who during his time off from school, makes some discriminatory statements against the Jews in writing and communicating statements (1996 CanLII 237 (S.C.C.). The Court upheld that the Board of Inquiry’s decision that the school board discriminated as regards public service as it did not take the appropriate action against a teacher who has constantly made attacks in public against the Jewish people (1996 CanLII 237 (S.C.C.). These comments were undermined his ability as a teacher who must manifest equality and tolerance (1996 CanLII 237 (S.C.C.). The school district which continues to employ a teacher who repeatedly makes discriminatory attaches is a “poisoned educational environment” and impairs such educational environment (1996 CanLII 237 (S.C.C.). A person teaching in public school possesses such influence over its students and must therefore manifest impartiality and tolerance (1996 CanLII 237 (S.C.C.). The Court stressed that the school board has the obligation to maintain a school environment that is positive and must constantly maintain this to prevent anything which might impede with this objective (1996 CanLII 237 (S.C.C.). Hence, it maintained that the Board made no error in ruling that School Board acted discriminatorily in this case (1996 CanLII 237 (S.C.C.). The Court in this case also hopes to strike a balance between these individual rights and the needs of the community (1996 CanLII 237 (S.C.C.). And in this case, there must be a balance between R’s expression of discriminatory statements and the right of the children in the said school district to have an environment that is without prejudice and impartiality (1996 CanLII 237 (S.C.C.). R’s claim of practice of his religious belief made through such discriminatory statements maligns other religious beliefs mainly against Jews which itself erodes the very principle of freedom of religious belief also guaranteed under the Charter (1996 CanLII 237 (S.C.C.). Hence the Court stated that “the objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on R produced by these clauses,” (1996 CanLII 237 (S.C.C.). La Forest’s approach is the same as that held in the above-mentioned cases in that freedom of expression must also be balanced with other freedoms, rights and interests. These cases do not show analysis that is different from that stated by La Forest. It supplements and further expounds on such statement on how to analyze freedom of expression. In considering these, once may conclude that freedom of expression cannot be superior over other freedoms, rights and interests especially if it already infringes the rights of other individuals or their interests. The Kind of Approach to Freedom of Expression That The Court Should Adopt In my opinion, I would agree to what the above decided cases have held. Although individuals are entitled under the Constitution and under the Charter to express his or her own opinions, beliefs and views under the freedom of speech or expression, it must also work with other freedoms and rights guaranteed under the Constitution. It must balance competing interests in order to have harmonious environment among different individuals and groups. Respect and protection for groups that might be targeted by freedom of expression must also be given significance. The state then has the right to set limitations on the freedom of speech or of expression if it already disrespects others, intends to intimidate other persons or groups, tends to subject a certain group of persons to manipulation, and tends to discriminate on other individuals or groups. Freedom of speech or of expression does not exist in a vacuum and must consider existing rights and freedoms. As held in Virginia v Black the freedom of speech and expressive conduct guaranteed under the Constitution are not absolute (538 U.S. 343 (2003). The state may itself regulate different forms of expression that are in consonance with the Constitution (538 U.S. 343 (2003). However, such limitation or regulation must be justified or sets a reasonable limit under the circumstances presented. Hence, such limitations must not be overbroad and must give definition of such acts prohibited as in Virginia v Black and must have a purpose it hopes to achieve. Furthermore, it must satisfy whether the means used were not at all excessive in order to achieve this objective or purpose (1990 CanLII 24 (S.C.C.). In Cohen v. California, the court noted that the State may not make a simple public display of a four letter word considered a curse to be a criminal offense (403 U.S. 15 (1971). Before any infringement on the freedom of expression or speech, these various tests must be applied first in every case to justify any limitation or restriction. With these guidelines in hand, Courts must approach freedom of expression or speech with having in mind other freedoms and right, to balance competing interests. The limitations or restrictions set on the freedom of speech or expression must be reasonable and justifiable under circumstances and must manifest the purpose or objective it seeks to achieve. Does An Understanding Of La Forest’s Approach To Freedom Of Expression Help Explain The Way The Supreme Court Of Canada Has Decided Such Cases? Understanding La Forest’s approach in RJR MacDonald Inc. v. Attorney General of Canada would also help and would supplement in determining the Supreme Court’s way of deciding cases involving freedom of expression. Since this case also involved on an Act which prohibits the advertising and promotion of tobacco products, a possible infringement on the freedom of expression, this case might then help in the understanding of how Courts particularly the Supreme Court decide cases on similar issues. In RJR MacDonald Inc. v. Attorney General of Canada, the Court explained that freedom of expression includes the right not to express something ([1995] 3 S.C.R. 199). The Court held that there was no link between the ban on advertising of tobacco and the decrease in the use of such products ([1995] 3 S.C.R. 199). This is an essential element in considering whether a certain infringement is justified and reasonable under the circumstances. On this aspect, said ban on advertising on tobacco products failed ([1995] 3 S.C.R. 199). Hence, in considering whether an Act which affects the freedom of expression, aside from having an objective or purpose, there must also be a connection of such an objective with the prohibition made under a certain enactment ([1995] 3 S.C.R. 199). Aside from this case of RJR MacDonald, various cases such as Irwin Toy Ltd. v. Quebec, R v. Keegstra and Ross v New Brunswick School District No. 15 and those of US jurisprudence may be well used in understanding on how Courts would rule on freedom of expression cases. Although the US jurisprudence may have a different historical perspective on some of the views on the freedom of expression, this would still help in understanding every case involving the same issues. These cases already give standards and guidelines on how Courts should consider other rights in relation with freedom of expression. All these taken into consideration would help us understand more of how to approach a problem involving freedom of expression or speech cases. There is no single standard in assessing each and every case, but an examination and understanding of these cases including that of RJR MacDonald Inc. v. Attorney General of Canada would help us determine how the Supreme Court approaches the same issues and problems. References Cohen v. California, 403 U.S. 15 (1971). Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927. Palko v. Connecticut, 302 U.S. 319 (1937). RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Ross v New Brunswick School District No. 15, [1996] CanLII 237 (S.C.C.). R. v. Keegstra, [1990] 3 S.C.R. 697. Virginia v Black, 538 U.S. 343 (2003). Read More