McMILLAN: In praise of honest discussion, a.k.a. free speech

A scientist reviews data that experience tells him looks wrong. People in power are about to make decisions based on it, but do not seem to understand the error they are about to make. What should he do?In 2020, Stanford’s Dr. Jay Bhattacharya found himself in that situation. He realized what was known about the emerging COVID 19 epidemic required keeping vulnerable populations — mostly elderly people — away from sources of infection. In an op-ed in the Wall Street Journal he therefore argued that to protect society, governments should use ‘focused protection’ — not aggressive lockdowns — and published his own research, showing COVID-19 was already present in the population, that people had natural immunity to it already and that the death rate was much lower than projected.There were no accolades for Bhattacharya, however.Bhattacharya became the subject of much scrutiny, false accusations, racism and eventually alleged censorship from the highest levels of the US government. Indeed, Bhattacharya is currently involved in a lawsuit against the Biden administration, Biden v. Missouri, over this very issue and claims that social media companies were told by the Biden administration to suppress Bhattacharya’s reach and information.“I'd never encountered a situation where just the simple act of doing science led to, essentially personal attacks, absolutely vicious ones, questioning my credentials, my character and of course my science itself,” Bhattacharya says.This is one reason among many, that causes many to now claim that free speech is under attack in the West, if such dialogue can be shut down by those in power. We have many rights as humans that have been purchased through the use of free speech and free speech is essential to securing those rights in the future.What then, do we do with words such as “misinformation” and “disinformation?” The negative connotations around them make many people hesitant about what they believe, so they become levers of power for people in authority to shut down discourse.This is where the problem lies. Says Bhattacharya, “No power has this godlike omnipotence to say, this is true and this is false with any, any kind of certainty. So, the premise that the government has a unique ability to decide this is misinformation, that is not misinformation, is just false.”To understand free speech better we need to explore its history and how it became entrenched in Canada's constitutional custom and practice.John Carpay, president of the Justice Centre for Constitutional Freedoms (JCCF) takes it back to the 13th century. “Starting with the signing of the Magna Carta in 1215, there was in England a gradual movement away from authoritarianism.”The reality for many in those days was, “if you said something that offended the King, you could get locked up in prison indefinitely, at the King's pleasure,” says Carpay.But over the next 400 years, that was all left behind in favour of personal rights and laws that governed all. And this allowed for something truly remarkable to happen next.Carpay: “Towards a point in the 1700s, there was substantial free speech when the abolitionists, people fighting to abolish slavery, first fought for 25 years to abolish the slave trade and then fought for another 25 years to abolish slavery itself within the British Empire.”That fight still took roughly 50 years of discussions and debates in the British parliament before the law was changed. But because of the British free-speech tradition, the debate was possible. And, as the British Empire stretched around the world, this was a significant move forward in ending slavery globally.If it was not for free speech, the ability to voice unpopular opinions and challenge the norms of the day, then some of the greatest atrocities of the past would still be with us. It was not perfect, but it was being developed and moved forward.“They had free speech because their speech was not popular at all,” Carpay says, but it was allowed and eventually gained power.That is Canada's inherited history, but what of our own history?Nigel Hannaford, Director and Opinion Editor of the Western Standard, with extensive experience in newspapers in Western Canada and as manager of former prime minister Harper's speechwriting department, points to the celebrated libel case of Nova Scotia newspaper publisher Joseph Howe.Howe, later a founding father of Canadian Confederation, published in 1835 an accusation in his publication, The Novascotian, that claimed corrupt police and Halifax politicians had pocketed a lot of money over a 30-year period. Howe believed he had credible information to make this claim, but nevertheless took a huge risk.To publish criticism of the government, even if fact-based, invited the charge of Seditious Libel.Thus, when Howe argued during his trial that "if citizens could not tell the truth about their government, then they could not ensure that they would receive good government" — as Hannaford put it, he risked a substantial jail penalty.Yet, even with pressure from the judge to find Howe guilty, the jury sided with Howe and acquitted him of the Seditious Libel charges.It is important to note here that by the laws and understandings of 1835, Howe was guilty as he had published that paper with those accusations. However, the Jury sided with Howe in a landmark decision. “This was the landmark case," said Hannaford. "We have had the tradition ever since then of being allowed to criticize the government."Howe’s case was not the only one in Canadian history that laid a foundation for free speech. Carpay highlights a past case where the Supreme Court in the decision Irwin Toy Ltd. v. Quebec outlined the three aspects that justify free speech — the pursuit of truth, social and political decision-making and individual self-fulfillment through expression.This all leads to the Canadian Charter of Rights and Freedoms where under section two it clearly states that: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.If you read that closely you will see that freedom of speech was not mentioned but freedom of “thought, belief, opinion and expression” was.Is there a difference between expression and speech?“The word expression is, in my view, something that's broader than speech alone,” says Carpay.Carpay would argue that something such as art would fall under the freedom of expression as no speech may be present in it per se, but the free expression of a thought could be. Aside from making the distinction on that level, “they're pretty much synonymous” says Carpay.These legal distinctions and historical decisions are so important because they feed into our daily lives, discourses and current fights for human rights — even in the halls of academia.Take for example, the experience of Cam Cote, the Western Outreach Director of the Canadian Centre for Bio-ethical Reform (CCBR). CCBR is a pro-life organization that regularly protests on university campuses and in public for the rights of the unborn..“At times, particularly at Mount Royal University, there'll be people that will attempt to cover up our signage and prevent people from seeing pro-life imagery,” says Cote. Is this problematic though? It is in the sense that it is an effort to stop a message from being received without dealing with the argument directly. Imagery would fall under freedom of expression to be certain. There are many reasons behind this action, but it is nevertheless, an attempt at shutting down open dialogue in a public square.Making this point even clearer Cote adds, “What is even more problematic is at times that hindrance of freedom of speech where they are either trying to shout over us or else try to prevent people from even engaging with us in these interactions." "So, they cannot even hear the pro-life worldview and cannot even be challenged in their pro-abortion worldview." This impulse for censoring or cancelling unpopular speech, even on a university campus, is not new but it is a problem.However, the question needed to be asked, and was asked, about the effect of such strong and graphic images being placed on display. Is this necessary or appropriate in the public square?“Would we ever suggest that Mothers Against Drunk Driving should not be allowed to have disturbing yet effective imagery regarding not drinking and driving because of the harm that can come,” replies Cote. “Even contemporary examples along the lines of Black Lives Matter, and you consider the profound impact that the video of George Floyd and countless other victims had in awakening the conscience of America and those around the world. The role that images and video evidence played in educating and engaging the public, is absolutely vital."Does this mean that in free speech everything is fair game? Are there limits on what is okay and what is not okay under speech laws in Canada?Carpay outlined two clear free speech restraints.It is not legal to counsel anyone to commit a criminal offence: nor is it legal to utter threats against anyone or a group of people under charter protection. These restrictions would apply to both spoken and written instances.And in the area of not promoting hatred, they go even further, says Carpay. “Section 319, the willful promotion of hatred only on certain grounds. It's really interesting! You cannot promote hatred against an identifiable group on the basis of religion, race, ancestry, ethnicity, sexual orientation, and gender expression," he says.So, there are limitations on free speech and there is a category of protection against hate speech in Canadian law. The limitations on hate speech can be harder to navigate though as, sometimes, what some people consider to be hateful or what isn’t can be more subjective rather than objective.“I often get asked: can the prime minister be charged with hate speech for promoting hatred against unvaccinated Canadians? And the answer is no. Vaccination status is not listed as a prohibited ground in the criminal code,” explains Carpay.So, this means we need to be aware of what or who are considered to have protected statuses and on what grounds in Canada. It is also important to take into consideration and make distinctions between what was actually said and how it was received — intent is not easy to prove.“Different listeners are gonna think something's hateful or not, depending on their own subjective perception,” says Carpay.Just pause and think through all the news headlines recently, news articles and opinions on current events and challenge yourself on what is objectively true and what is only subjectively apparent.What can we do then? That is a legitimate question and one that many people are asking themselves daily on any number of current events and topics.“What people need to do to defend free speech is to continue to exercise it. It's like a muscle. If you don't exercise your muscles, they're gonna grow flabby and weak and eventually atrophy." "Whereas the more you exercise the muscles, the stronger they are. So, people need to bravely speak, speak their opinions and not be intimidated by the name calling,” says Carpay.We must never make threats, counsel anyone to break laws or promote hatred of other groups — people have the right to be free from such things.However, people do not have the right to "not be offended." The rights that we possess and enjoy today were obtained through conflict and people being offended.It is also through ignoring the criticisms and censorship impulses of those in power that we can learn to enjoy free speech. Speaking what we believe to be necessary, in the way we deem appropriate, is how we can move this topic forward — feelings be damned. It is through such hard and possibly offensive conversations that human rights have advanced in the past and it is how they will be secured in the present and maintained in the future.Ryan McMillan is a fourth-year journalism student at Calgary's Mount Royal University

McMILLAN: In praise of honest discussion, a.k.a. free speech

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