Like other rights and freedoms, freedom of expression has the potential to conflict with a host of interests and sensitivities. In the name of a call for “compassion” or a string of good feelings, some claim to sanction a vast set of words that disturb. But to make freedom of expression depend on the sensibilities of those who claim the right not to be offended, is to deny its very existence.
Expressing something that almost everyone agrees with is not risky. It is when the comments are controversial that it can become dangerous to say and disseminate them. If laws restricting freedom of expression are too broad or interpreted too broadly, the risk that the speech will be deemed wrongful or illegal is increased. This explains why laws cannot guarantee individuals a right (and therefore a prerogative guaranteed by law) not to “feel” offended by statements broadcast in the public space.
In a rule of law where it is necessary to ensure respect for all rights and freedoms, the only limits in the name of which a statement can be sanctioned are those provided for by law. The text of Article 1 of the Canadian Charter of Rights and Freedoms moreover states that the rights and freedoms “may be restricted only by a rule of law, within limits which are reasonable and whose justification can be demonstrated in the framework of a free and democratic society ”.
The risks of speaking out
Reporting current events, commenting on the actions of public figures or social phenomena can damage the reputation of an individual or a company. But laws must only prohibit wrongful damage to reputation or other human rights. Otherwise, the slightest comment that offends an individual’s reputation or concerning one of the aspects of his personality would risk being penalized. With such a rule, it would be perilous to draw the attention of the public to questionable situations, to the questionable behavior of some or to the blind spots of situations that concern society.
For example, laws restrict freedom of expression by carefully delineating what is hate speech and punishing its dissemination. But this only makes sense to the extent that we have predictable criteria to distinguish what is prohibited from what is not. However, for some, the slightest comment that is critical or that makes them uncomfortable is immediately classified as hateful statements. If the laws took such a shortcut, it would be impossible for the speaker to guess what is allowed and what is prohibited.
By excluding the “right not to be offended” the judges ensure that the laws which mark out the freedom to express oneself are sufficiently delimited in order to give the person speaking the possibility of evaluating the risks associated with his remarks. If a right to punish what offends were guaranteed by law, the person speaking would have the obligation to ask himself if his words are likely to offend someone somewhere. In the face of uncertainty, she might conclude that it is better for her to keep quiet.
The laws only target statements that are actually likely to endanger the protection of the rights of individuals. To substitute for this approach a discourse based on the addition of subjective impressions around the disapproval that the remarks can inspire without asking whether it actually contravenes the law, is to introduce a degree of freedom-killing uncertainty.
It is in this spirit that the Supreme Court, in the Mike Ward case, recalled that “the protection of a right not to be offended […] has no place in a democratic society ”. For making a right or a freedom depend on the infinitely variable propensity of individuals to tolerate what they consider “offensive” amounts to dissolving rights and freedoms in arbitrariness.
In interpreting laws that limit expressive freedoms, it is not enough to rely on the offensive nature of words or the emotional harm done to a person. This would amount to censoring comments because of their content or their effect on a person, regardless of their discriminatory effects or their effects on an individual’s reputation with the public. Limits to freedom of expression are justified when there are serious reasons, in a given context, to fear sufficiently precise prejudice which the discernment and critical judgment of the audience cannot prevent.
The freedom to say
But there is a counterpart to this requirement of predictability of laws. All those who speak have the obligation to know the rules of law which mark out their faculty to say, to write or to show. For example, a person cannot post another person’s image without their permission unless they can demonstrate that it is in the public interest. But forcing a person who speaks to guess that a brainless could seize some of his words to intimidate or harass amounts to holding him responsible for all abuses. This is a type of limit which, because of its unpredictability, is incompatible with freedom of expression.
Last but not least, freedom of expression also protects the right to denounce and condemn a statement under standards other than those set out in laws, such as standards of “good taste” or decorum. The constitutional protection of freedom of expression limits the possibility of prohibiting or punishing speech. But it also protects the freedom to say that you are outraged or that you disagree.