By Donovan Makus
Few topics seem as polarizing as the topic of free speech, particularly on campus. This is a topic that has been debated and fought over for centuries, going back to when politicians in the German Confederation passed the Carlsbad Decree. Advancing for more than a century and crossing the Atlantic, the Free Speech Movement of the 1960s had a large impact on American discourse surrounding civil liberties and culture, which could be seen as setting the stage for the counterculture movement of the late 1960s. On the other side of the Iron Curtain, student protests in former Czechoslovakia (combined with general discontent) led to the Velvet Revolution, ending Communist rule and marking the beginning of the end of the Iron Curtain. Today’s campus free speech topics, however, are not focused on overthrowing governments or oppressive ideologies, but instead on the definition of the term itself “free speech” and its limits, which is where our current issue in Alberta begins. In many ways, today’s debate about free speech can be seen as parallel debates, where one side stresses the virtues of free speech while the other stresses the harms of hate speech. Combined, this has led to an environment where today’s campus speaker firebrands are more likely to find themselves behind lines of police officers than behind bars.
Our present-day campus free speech controversy started back in May when the newly-elected United Conservative (UCP) government stated that it would require Alberta’s publicly funded post-secondary institutions to implement the Chicago Principles in their free speech policies. Originally mandated to be in place by September 23rd and enforced by October 15th, the new deadlines are aiming for completion by November 15th and enforcement by December 15th. The Honourable Demetrios Nicolaides, Minister of Advanced Education, stated this change was for three reasons. First, to enshrine a UCP platform commitment. Second, to reinforce the importance of free speech on universities. And finally, because of past events, where Albertan students were sanctioned for expressing their views. The response to the statement has been mixed. The response from the New Democratic Party opposition is predictably opposed, stating that current protections are strong enough. The Alberta Students’ Executive Council, in which the Concordia Students’ Association participates, has released a statement reiterating their support for an existing culture of free speech and expression on university campuses while not condoning hate speech under the guise of free speech.
To understand the significance and intended purpose of the Chicago Principles, the best answer is to read them. They’re a quick read with ample background information. The core of the principles state that free speech should be respected, even with “offensive or disagreeable” views so long as they do not “violate the law, falsely defames a specific individual, constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.”
One notable difference between the University of Chicago and University of Alberta is the strength of the American First Amendment. Guaranteeing freedom of expression, the American Supreme Court has repeatedly upheld that the First Amendment protects the rights of everyone. In one notable case in 2001, Westboro Baptist protesters were legally protected in picketing a homosexual Marine’s military funeral with their infamous signs, in a nearly unanimous 8-1 decision uniting both Liberal and Conservative Justices. Going back to 1969, in a decision in favor of a KKK member, the American Supreme Court has consistently upheld freedom of expression so long as their speech does not directly incite “imminent lawless action.” In contrast, the Canadian Supreme Court has upheld section 1 of the Canadian Charter of Rights and Freedoms, which states that reasonable limits can be set on Charter rights (such as freedom of expression) and allows for legislation against hate speech to override other sections of the Charter. In a decision made in 2013 that can be paralleled to the Westboro decision in the United States, the Canadian Supreme Court ruled unanimously that Saskatchewan’s Human Rights Code, along with its attached hate speech provisions, was constitutional. Justice Rothstein went on to define “hatred” as “detestation, calumny (slander), and vilification.” Operating in different legal environments, the portion of the Chicago Statement that says speech cannot “violate the law” has a markedly different interpretation here in Canada than it does in the United States.
Caught in the middle ground between the American model of free speech, where Supreme Court Justices almost unanimously agreed that it is legally permissible to picket a dead servicemembers funeral with only one Conservative justice dissenting. With the North Korean model of paper rights and extremely limited speech in practice, we face a constant challenge of finding balance. While Human Rights Tribunals or Commissions can adjudicate claims and complaints, they have limited resources, which may be monopolized by vexatious litigants, and operate as part of a broader cultural frame. It’s this broader context that is the best place to address the issues of hate speech and free speech, by making clear the boundaries of acceptable debate. While those who engage in expressions of hate speech may be on the periphery of mainstream culture and bear sole responsibility for their actions, they do so from a place of being a part of our broader Canadian society. By not accepting private comments that tread the line of being hateful, we can help constructively shape the public discourse. In the furious debates surrounding if statements are hate speech or not, it’s easy to lose sight of the reality that the speech is the symptom of deeper feelings, not a cause itself. By being accepted as a society we can create an environment that minimizes the experiences and attitudes that can manifest as hate speech. In this way, the perennial conflict between free speech and hate speech can be minimized, even if the occurrences of hate speech cannot be eliminated; furthermore, we will still inspire active debate on the definition of the term and ample legal advocacy for centuries to come. The law and what is considered socially acceptable may disagree as most people would agree 18-year-olds shouldn’t marry 80-year-olds, but it’s legally permissible, and in the same way, societal attitudes and reactions can play a similar role in acting as a form of social control. While a more inclusive society won’t address all incidences of hateful expression, it goes a long way in minimization and dealing with the aftermath.
As a country, we boast a long history of stressing free speech while still harboring a strong desire to protect individuals from harmful messages. This has also been combined with a strong history of individualism. The constant struggles over free speech, sometimes erupting into revolutions in the past, also shows us a deeper conflict between individual and societal focuses that demonstrate why this issue is hotly contested. In this setting, the impact of societal attitudes on the individual can shine through and lead to more civil discourse by addressing the source of the problem rather than its symptoms.