University of Winnipeg professor Peter Ives does us a favour in his new book Rethinking Free Speech, a feat of conceptual brush-clearing. It’s important and timely. Why? Consider these developments:
Item: In the small city of Pickering, ON, the mayor recently announced the closure of city council meetings to the public, due to ongoing alt-right harassment. A councillor accused of stoking transphobia, homophobia, and alt-right conspiracy fictions, used “freedom of expression” as part of her legal counterattack. Is Pickering ground-zero for right-wing harassment elsewhere?
Item: In my hometown, contentiously known as Powell River, a city councillor expressed concern about “bullying, harassment and intimidation tactics…being used by an organized group to disrupt council meetings and to deny others a safe forum for discussion”.
To promote respectful dialogue, the Council proposed amendments to its procedure and conduct rules, prompting a “demand letter” from the conservative Justice Centre for Constitutional Rights. Censorship! it cried; the proposals “violate the freedoms of conscience and expression” protected by the Charter of Rights.
Malevolent political forces are afoot, wrapping themselves in the moral cloak of freedom of speech. In particular, in recent years, the populist right – read proto-fascist – movement had used and abused it to justify their own “right” to spew hate rhetoric, intimidate politicians, and threaten opponents.
Ives’s purpose though, is not to take sides in particular debates over where to draw the line between protected and unlawful speech. Rather, his project is to improve conceptual clarity and the level of debate.
Why is free speech considered valuable in the first place? Even within Western liberal political philosophy, there’s no consensus. Ives identifies four major rationales, associated respectively with Immanuel Kant, John Stuart Mill, American jurist Alexander Meiklejohn, and scholar C. Edwin Baker. They are the search for truth, enlightenment and social progress; individual freedom from excessive constraints, whether from the state or public opinion; effective participation in democratic processes; and personal expression as essential to one’s humanity. As he explains, these purposes don’t always sit well together.
What do people mean by “free speech”? That also varies. It’s used in different contexts and for different purposes. Most narrowly, it means constitutional guarantees of individual speech against government censorship or punishment. But it’s also used to champion the goal of critical, diverse, open and inclusive dialogue – the democratic public sphere famously analyzed by German theorist Juergen Habermas. Both of these are distinct from academic freedom, a narrower concept often seen as simply an on-campus application of free speech. It isn’t, Ives persuasively argues. Rather, it’s negotiated between universities and faculty unions as protection for professors’ essential function – pursuing and imparting knowledge through research and teaching. Does that mean anything goes? No. Professors are subject to standards set by their professional peer group. They can’t teach astrology in an astronomy course, for instance. And protection from whom? Not from the state, which is already covered by the Charter of Rights, but from their employers – university administrations.
Canadians’ continued marination in American popular culture helps account for our confusion about free speech. Theoretically, the US Constitution’s First Amendment forbids governments from passing laws curtailing freedom of speech. By contrast, Canada’s Charter of Rights allows governments to restrict freedom of expression (the preferred phrase in Canadian law) when “demonstrably justifiable” vis-à-vis other democratic values. Apparently, many Canadians don’t seem to get that difference, like the Freedom Convoyers arrested in Ottawa in 2022 who appealed to their First Amendment rights. Given US President Donald Trump’s stated annexationist ambitions, such creeping Americanization of the Canadian mind must be music to his (slightly scarred?) ears.
Ives critiques two other notions imported from American jurisprudence. One is “the marketplace of ideas,” whereby through competition, the best ideas rise to the top, and hey presto, truth will emerge. Even leaving aside that ideas are not copyrightable commodities, economic markets ignore differences of power, circumstance and experience. They don’t necessarily produce equality, justice or high quality. Why should we expect free speech to be any less prone to market failure?
The American doctrine of counter-speech – the notion that the cure for bad speech is not regulation, but more and better speech – is similarly flawed. Especially in social media where many users accept false news and are hostile to competing opinions, and the best-funded bots and bullies speak loudest. Moreover, US courts have given political donations the status of speech that is protected from election spending limits, so speech is “freest” for corporations and billionaires.
Confusion or misinterpretation of free speech has real-world consequences. Ives gives several examples of how it has fuelled the right. These include Alberta’s and Ontario’s conservative governments imposing on their provinces’ universities the “Chicago Principles,” identifying free speech rather than academic freedom as a core (but malleable) principle. Or right-wing groups campaigning to turn the International Holocaust Remembrance Alliance’s vague “working definition” of anti-Semitism, intended as “non-legally binding,” into a weapon to outlaw, as hate speech, criticisms of Israel.
Perhaps the most sensational case: In 2017, Wilfrid Laurier University teaching assistant Lindsay Shepherd showed a video clip from controversial commentator Jordan Peterson, opposing gender-free pronouns. Shepherd’s professors, responsible for course content as per the academic freedom policy, reprimanded her for creating “a toxic environment” for some students. Shepherd secretly recorded their conversation and leaked it to the National Post, unleashing a media frenzy over the alleged suppression of free speech at Canadian universities by leftwing academic “thought police.” Distinctions between academic freedom and freedom of expression were crushed in the pile-on.
Other debates over campus speech have not been addressed. The alleged orthodoxy of “wokeism” or “cancel culture.” (Check nearly any conservative media outlet for relentless updates.) Conversely, the influence of corporate funding on research agendas and hiring decisions. (The Canadian Association of University Teachers has numerous reports.) But again, Ives’s aim is to provide conceptual tools to make sense of such controversies.
The longest chapter overviews the ongoing tension between the requirements of a democratic public sphere, and the architecture and technology of social media owned by large profit-oriented corporations. Following Habermas, Ives points out that the realm of public conversation is historically shifting, shaped by technology and social structure; it’s not just an empty box to be filled with speech from equal participants. Driven by the search for profit, companies like Facebook/Meta employ proprietary algorithms – carefully guarded corporate secrets – to attract and engage users and gather marketable data on them.
Consequences abound. Users are fed not what they need to know – a goal of journalism at its best – but more of what stokes their prejudices. Effective censorship can occur, not mainly by prohibition, but by overwhelming subordinate voices –”flooding the zone with sh*t”, in former Trump strategist Steve Bannon’s phrase.
Policy decisions have largely exempted social media platforms from legal liability for the content posted on them. They function like public utilities, like your grandmother’s phone company, but they aren’t regulated as such. Hate speech, fake news, polarization, manufactured rage – the litany is familiar, and it won’t be improved by Mark Zuckerberg’s decision to pull fact-checkers from his Meta platform. Does that indicate big tech’s accommodation to an emerging fascist regime that relies on hate and deception? Social media may provide for personal expression, Ives concludes, but on the other free expression goals – democratic participation or discovery of truth and knowledge – “today’s media landscape is failing” (p. 119).
Fortunately, Ives surveys various advocates and groups, including Open Media which I helped Steve Anderson to found in 2007, for possible fixes. These range from managerial promises of good behaviour, to fundamental structural change. Break up the big tech monopolies. Make algorithms transparent. Change the polarizing and fear-stoking incentives built into the system. Bring the platforms under public ownership and democratic control.
There could have been more attention to battles over legacy media. Hedge fund-owned zombies like PostMedia newspapers stagger on, partly because courts have interpreted freedom of the press, not as fair access to the public forum by diverse groups, but as a property right of monopolistic media owners. In the 1990s, for example, the courts rejected Charter challenges to Conrad Black’s wholesale takeover of Canadian newspapers, and to CBC’s refusal to accept advertising from the anti-consumerist magazine Adbusters.
Consideration of judicially-reinforced media owners’ power could have taken us to “communication rights,” a concept including, but much broader than, freedom of expression. It addresses the hugely varying levels of access to power and the means of communication, insisting on additional rights needed to enable all communities to participate in their society’s conversation – and to be heard. The concept originated in short-lived United Nations debates in the 1970s over a “New World Information and Communication Order,” until these were kyboshed by the neoliberal governments of Thatcher and Reagan. But it was reincarnated in civil society, embodied in grassroots media, projects and practices.
Ives acknowledges that his is an “immanent” critique, an internal examination of Western liberal concepts. But he opens the door to other traditions. One next step he suggests: explore Indigenous traditions of communal, authentic, and respectful dialogue. He provides some tantalizing teasers, from David Newhouse and other Indigenous scholars.
More accessible than most academic books, Rethinking Free Speech will elevate discussion, from dinner table conversations to research agendas. All the more necessary, as authoritarian populist movements attempt to silence their perceived enemies, while proclaiming their love of free speech.
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