Canada shouldn't be so quick to develop a culture insensitive to censorship, author says
‘The power to censor is great if you think you can trust the person holding that authority’, says Macfarlane
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Dilemmas of Free Expression, a new book edited by University of Waterloo political scientist Emmett Macfarlane, explores the contemporary issues surrounding free expression. The National Post’s Tyler Dawson spoke to Macfarlane about the state of free speech in Canada, how it has become divided along political lines, and whether the courts will protect such an important right.
Q: What is the state of free expression in Canada?
A: I think the state of free expression in Canada is actually quite uncertain.
If we consider this from a legal perspective, the courts have actually not done a particularly good job in robustly defending free expression; they have been incredibly deferential to governments, when governments have sought to put limits on expression.
Culturally, we see debates over free speech that have become increasingly polarized that are often not just exaggerated, but filled with red herrings and misrepresentations about how free expression actually works.
The social discourse around free expression has seemed to be polarized along ideological lines, such that we have kind of right-wing provocateurs putting the mantle of free speech champion on themselves, and we have left-wing or progressive commentators who speak about free speech as if it’s antithetical to Canadian values.
But I say uncertain, because, at the same time, some of the free-speech panic is a bit overblown, right?
Q: A lot of the way we think about free expression is informed by the culture wars and cancel culture. How does this affect things?
A: The problem is the extent to which that now informs public policy, right? So one of the worrying things, I think, that we need to think about is the incoming federal legislation to regulate social media, to regulate hate speech and disinformation.
They risk passing the buck on to these private social media companies to do the the actual regulating themselves, and Twitter and Facebook are not going to be able to coherently regulate hate speech or disinformation.
Which isn’t to say they can’t do a better job than they’re doing. But, given the sheer volume of posts on social media sites, they have to use automated decision-making and algorithms, and we know the problems of those present. In fact, they can even present kind of systemically discriminatory outcomes themselves.
And then when you add in the jurisdictional issues of a global internet, where a Canadian law can’t touch some kid posting stuff in Sweden, or the technological issues of dealing with anonymity online, it’s just rife with implementation challenges.
I don’t know to what extent the current government has been influenced by a lot of the news stories and a lot of what goes on on social media. And I’m hoping they take a very serious look at these implementation challenges and these potential unintended consequences as they refine any legislation.
Q: It feels like some of the old arguments over free speech are dead, like the idea that you might be willing to censor, but what if your enemy gets to be the censor. What do you think?
A: I’m more concerned with the impact all of this has had on attitudes, and there is some evidence that younger people are much more willing to accept censorious policies when you compare it to, you know, the fights on university campuses in the ’60s and ’80s were trying to stop administration censorship and the fights today seem to be, well, university administrators aren’t censoring enough — and that’s a very worrying trend at that level.
But, you know, an even bigger worry, and I think this is where I get into more arguments with progressives is, yeah, the power to censor is great if you think you can trust the person holding that authority.
But all you have to do is look south of the border as state after state is bringing in these ludicrous anti-critical race theory bills to stop people from talking about systemic racism, to see where that could lead.
Canada is not some safe harbour from the evils of far-right populism; if you’re a progressive voter, we are not immune from what is happening in other countries with white nationalism and other movements.
And so why you would want to develop a culture that is insensitive to censorship, that allows the state and other authorities to regulate what can be said, is beyond me because it can easily be turned against the people that we see as often the targets of hate speech, just as as it might be targeted at the hater.
Q: What about the discrimination case involving a Quebec comedian who told off-colour jokes about a disabled teenager?
A: I found it quite worrying that so many of the judges were willing to uphold this kind of limit, because it is a case that didn’t involve a hate speech. We’re not talking about speech that rose to the level of hate speech, and the court put a kind of a high threshold on that.
And it wasn’t a defamation case, right? This wasn’t a dispute between two private citizens and one has libelled or slandered the other. It fell into this third, nebulous category of speech as an act of discrimination.
And that is quite ambiguous and quite worrying that only a bare majority of the court kind of ruled against sanctioning the comedian.
I think a lot of what the comedian said was completely odious. But if we’re going to start sanctioning speech on the basis of its degree of odiousness, I’m not sure where that leads.
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