Vol. 33 No. 03 (March 2023) pp. 32-36DILEMMAS OF FREE EXPRESSION, by Emmett Macfarlane, ed. Toronto: University of Toronto Press. pp.322. Paper: $39.95. ISBN: 978-1-4875-2930-7.
Reviewed by Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.
In DILEMMAS OF FREE EXPRESSION, Emmett Macfarlane has assembled a superior collection of essays from scholars at Canadian universities which includes timely contributions to the burgeoning literature on challenges facing traditional understandings of fundamental rights in the 21st century. In regards to freedom of speech and expression, advances in technology that have led to the democratization of access to information and the capacity to generate it forces scholars and practitioners to revisit century and centuries-old notions of freedom and rights.
In the space of a single review essay, it is not possible to do justice to the fifteen essays that comprise this collection. I, therefore, divide them into two broad categories. First, I address those that set and define the 21st-century context for discussing free expression. These essays address the democratizing impact of technology on expression, the corresponding “cheapening” of speech that has resulted, and the costs that this democratization has produced. The second group addresses enduring themes of power, epistemology, and control over narrative. These essays demonstrate that while technology has altered the marketplace of ideas, it has done so in a manner that simply amplifies the enduring issues discussed in these chapters.
What drives the analyses and discussion in DILEMMAS is the “cheapening” of speech spawned by technology and, in particular, social media noted by Eugene Volokh (2021) and Rick HASEN’S CHEAP SPEECH (2022). On one hand, media consolidation has only enhanced the gatekeeping power of traditional media and platforms such as Facebook and Twitter. On the other hand, the proliferation of web access enables countless, anonymous actors to purvey information (however false or damaging) with virtual impunity. The great challenge for scholars and practitioners is how to manage this new landscape of expression.
In the introduction, Macfarlane notes that, “what is needed are forward-looking appraisals of ways to confront challenging moral issues, policy problems and controversies that pay heed to the fundamental right to free expression” (p.8). Richard Moon follows in “Does Freedom of Expression Have a Future?” with a similar statement about free speech’s fundamentalism: “ A commitment to free speech (or expression) means protecting speech regardless of its truth or falsity and allowing its audience to make their own judgment about its merits” (p.15). But, he quickly qualifies this by acknowledging that such an approach to free speech requires that individuals have access to different opinions, reliable information. and that they have the capacity to make “reasoned and independent judgments” (Ibid.) Alas, the proliferation of fake news, deep fakes, and so forth now undermines the certainty with which one can rely on these assumptions. This is made clear in Crandall and Lawlor’s discussion of the threats posed to electoral integrity by false news in “FREEDOM OF EXPRESSION IN AN AGE OF DISINFORMATION: CHARTER CONSIDERATIONS FOR REGULATING POLITICAL SPEECH IN CANADIAN ELECTIONS”. The case of election integrity offers a useful case-study for justifying at least some oversight and control of speech. To the extent that speech is instrumental to the integrity of the electoral process, the capacity of voters to make informed decisions, and the capacity of the government to govern, it is clear that the government has a compelling interest in ensuring that voters are informed accurately. But, how do we establish a benevolent government censor without creating the specter of an Orwellian gatekeeper to information?
At the heart of the collection lies the specter of the failure of the “marketplace of ideas” to serve the common good and the ends to which freedom of expression is aimed. The free exchange of ideas makes sense in theory, and is grounded on the assumption that this exchange will generate “truth” (or, at least, its close approximation) ostensibly to inform the public, enhance democracy, and instruct governors. But, that marketplace now generates deep fakes, revenge porn, and hate speech. As Moon notes, in an era of the centripetal force of media consolidation, the centrifugal force of social media proliferation is no longer adequate or realistic to assume that one can simply “respond in kind” to defend one’s privacy, reputation, or to rebut an idea (pp.22-29). Yet, proposed cures to this market failure may be worse than the pestilence it causes.
In HATE SPEECH, HARM, AND RIGHTS, Macfarlane discusses the difficulty in accurately measuring the harm caused by hate speech. Since that harm affects large numbers of people in many different ways it is correspondingly unclear that laws restricting hate speech will have their intended effects. This is made clear by Cameron in his account of the failures and pitfalls of prior restraint in PROCESS MATTERS: POSTAL CENSORSHIP, YOUR WARD NEWS, AND SECTION 2(B) OF THE CHARTER. Macfarlane is not a nihilist. He acknowledges that, “we should not end on an argument that leaves the targets of hate speech to simply absorb its negative effects” (p.50). Instead, he calls for broader measures to address the systemic basis for inequality and hatred (p.51). This clearly would avoid the threat of censorship. But, one wonders how much damage the victims of viral speech would have to suffer while waiting for such social engineering measures to take effect.
Carissima Mathen addresses the scope and breadth of any such measures in REGULATING EXPRESSION ON SOCIAL MEDIA. Due to the spread and impact of social media, “previously sacred principles [such as freedom of expression] can appear to be out of step” in the 21st century” (p.91). She thoughtfully describes what is, essentially, a no-win situation. On one hand, she fears a shift to social media regulation which would capture far more expression than existing criminal laws. Additionally, she notes that shifting responsibility for online speech regulation to the platforms themselves would simply privatize speech regulation while submitting it to the inherently risk-averse mindset of businesses. In the end, Mathen calls upon the state to take more control and responsibility for managing the marketplace of ideas. However, one could be left wondering how much power the government would need to acquire in order to take on the vast realms of cyberspace, the power of platforms, and the anonymity of individual actors.
The remaining chapters address enduring debates about the scope and definition of speech rights. A key theme throughout several of these essays is the evolution of the form of speech controversies. In POSITIVE RIGHTS, NEGATIVE FREEDOMS, AND THE MARGINS OF EXPRESSIVE FREEDOM Benjamin Oliphant thoughtfully demonstrates the limits to thinking about speech freedom as a negative right against government restraint. Controversies take on a multitude of forms, many of which require governmental intervention as referee among private actors--not as a censor of or threat to particular dissenters. The implications of his analysis are manifested in several other chapters. In chapter 6, Cara Faith Zwibel discusses the complexity of the interaction between the rights to protest and counter-protest. She casts her discussion in terms of Bracken v. Fort Erie, in which an Ontario Appeals Court overruled a lower court decision that had declared a protest outside of a city hall was not protected under section 2(b) of the Charter.
In so doing, the Ontario Appeals Court asserted an important, instructive distinction that ties back to Mathen’s observation that “concepts like harm, safety, and violence have taken on ever-expanding meanings” (p.101) as well asMacfarlane’s assertions about the indeterminacy of harm. The court stated: “Violence is not the mere absence of civility…. A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b)” (p.115).
Zwibel draws upon this decision to note that while there is no right not to hear things one does not want to hear, one does have the right not to listen: “Just as the Charter protects the right to speak and choose not to speak, it also protects the right to listen and not to listen” (p.117). This leads to an important review of the right of hecklers to shut down speakers they don’t like, the responsibility of the state to enable speakers to speak, and the right of others to seek refuge--where they have a reasonable expectation of privacy—from any speech or other noise. Zwibel’s elegant demonstration of complexity amongst this clash of rights is echoed in several other essays.
This analysis animates the discussion of deplatforming in chapter 10, Christopher Bennett’s DENIAL, DEPLATFORMING, AND DEMOCRACY: THINKING ABOUT CLIMATE CHANGE IN THE AGE OF SOCIAL MEDIA,and Dax D’Orazo’s DEPLATFORMING IN THEORY AND PRACTICE: THE ANN COULTER DEBACLE discussed in chapter 15. The advent of social media has only exacerbated the challenge of determining what is or should be regarded as the “truth” (about climate change, political protest, etc.). The capacity of social media to enable speakers to cause instantaneous, devastating damage to others now complicates deciding when and whether the cost of silencing speech is worse than allowing it (since banning controversial speakers can actually amplify their status and influence). Finally, social media’s power and pervasiveness now make it necessary to consider how or whether to address the harms caused to people who are unable to seek refuge from internet speech in the same way they can retreat from the terrestrial “marketplace of ideas” by going home.
What is or should be regarded as truth or speech worth hearing arises in Chouinard and Richez’s THE TENSION BETWEEN FREEDOM OF EXPRESSION AND LANGUAGE RIGHTS IN CANADA: THE FORD AND DEVINE LEGACY AFTER THIRTY YEARS and David Newhouse’s TEIAKWAHANSTAHSONTEHRHA–WE EXTEND THE RAFTERS. When courts are asked to balance competing language rights, or when they are asked to incorporate nontraditional knowledge into university curricula, they are confronted with battles that are more epistemological than legal in nature. There is no doubt, as these two chapters demonstrate, that prevailing epistemological and legal norms are dictated by whoever controls the reins of political power. Language dictates meaning, and therefore, is a tool of power. Nonetheless, clashes such as these demonstrate the limits of courts and law to resolve such conflicts. At best, one can only hope to manage them regardless of whether they take place in cyberspace, on campus, or in battles about the language of local signage or law itself.
The matter of power and control is manifested in discussions of compelled speech, or speech that is silenced. Sirota’s discussion of what constitutes government-compelled speech in COMPELLED SPEECH: A CONSCIENCE–AND INTEGRITY–BASED APPROACH demonstrates the nuanced difference between speech that is truly compelled and “speech” that can be regarded as any compliance with government rules . The difference is key and is clear in Sheldrick’s discussion of Ontario’s passage of the Protection of Public Participation Act against the use of strategic lawsuits against public participation (“SLAPPs”) in which better-financed groups can use litigation to tie up the funds of their opponents and, in so doing, silence or mute them. Whether the government itself operates with blinders imposed by its epistemological vision, or whether the government enables some to restrict the speech of others, those who are silenced (or perhaps forced to speak) all experience the same sense of powerlessness.
The chapters dealing with speech in the university offer a useful opportunity to conclude this review. In chapter 13, Jaffrey Sachs discusses FACULTY FREE SPEECH IN CANADA. In chapter 14, Shannon Dea discusses STUDENT REFRAINMENT FROM SPEECH. Both authors indicate that there really is only thin evidence suggesting that faculty and students are suffering from imposed censorship. Both authors distinguish Canadian universities from the more viral environment in United States institutions of higher education. Sachs argues that there is greater trust in Canadian universities than in their American counterparts. In addition, Canada’s approach to faculty protection through employment law (p.244) as opposed to speech law tends to defuse matters of faculty speech in a way that is not possible in the United States. Dea contends that the American higher education environment is poisoned by groups such as the Foundation for Individual Rights in Education that render “overblown”, exaggerated conclusions about threats to campus speech in the United States.
The great frustration of reviewing any collection of essays lies in striking a balance between giving each essay its due and offering a meaningful overview that does not become a restatement of each. DILEMMAS offers a thought-provoking overview of the breadth and complexity of free expression in a 21st century environment that is supercharged by social media and cyberspace. Yet, it does so by grounding that overview with deep dives into particular, enduring issues of power and control that have animated the discussion of speech rights for centuries. Macfarlane and his colleagues will cause the reader to make numerous marginal notes, seek out sources in the bibliography, and think a lot about how the new frontiers of technology have amplified traditional controversies of free expression.
REFERENCES:
Hasen Rick. 2021. CHEAP SPEECH: HOW DISINFORMATION POISONS OUR POLITICS—AND HOW TO CURE IT. New Haven: Yale University Press.
Volokh, Eugene. 2021. “What Cheap Speech has Done: (Greater) Equality and its Discontents.” UC DAVIS LAW REVIEW 54 (3): 2305-2340.
© Copyright 2023 by author, Mark Rush.
