Free Speech in the United States and Canada

This comparison of freedom of speech in the United States and Canada concentrates on Supreme Court decisions in the two countries and on kinds of speech mainly engaged in by extreme dissenters and political outsiders. After brief comments about constitutional language and general approaches, I discuss subversive speech and other speech that encourages criminal acts, hate speech, symbolic speech, and public demonstrations. In both countries, a major premise of modern adjudication is that freedom of expression is a central feature of liberal democracy. Government by the people, even in the extended sense of government by representatives, requires that citizens openly debate the merits of candidates and policies. Under prevailing liberal democratic theory, open discourse is more conducive to discovering truth than is government selection of what the public hears. Free statement of personal beliefs and feelings is an important aspect of individual autonomy. In recent years, some critics of the liberal democratic theory have claimed that existing liberty of speech reinforces false consciousness, social inequality, and domination by protecting the expression of those already in power and failing to open channels for the dispossessed. The particular areas I consider are significant ones in response to that critique. The United States and Canada are at different stages in the development of constitutional free speech doctrines. American principles, based on the 200 year-old Bill of Rights, have grown over the last seventy years with very limited attention to documents and judicial rulings of other countries. Although preceded by some judicial elaboration of ideals of free expression, the Canadian Charter of Rights and Freedoms drastically altered Canada\u27s constitutional landscape in 1982. Canadian courts have drawn extensively from the legal materials of other countries, including the United States, and from sources in international law. They have regarded themselves, to a degree so far uncharacteristic in the United States, as giving meaning to liberties that transcend national boundaries