Friday, March 02, 2012

A Real Threat to Free Speech

This news story  is something I don't usually say: here is a real threat to free speech. Most of the time in this blog, I spend my time explaining why supposed threats to free speech are not actually threat's to free speech. This is a serious one. Here we have a private company trying to use legal resources to silence the official opposition in what could amount of a very serious case of electoral wrong doing.

Let's be  clear, it does not matter who the official opposition might be or whom the private company might be. And, no party has a monopoly of election shenanigans (sponsorship scandal anyway?).

I actually don't expect that this suit will silence anyone. Indeed, I suspect that there will be a small growth industry that develops in academe studying the suit and debating its implications. But, that is not the point. The point is that this case is different from other ones I have discussed.

How so? The key difference is that where I have defended the regulation of speech I have done so for a couple of reasons. First, I've argued that private institutions do have a right to regular speech within the space of that private institution and that the state should not be in the business of telling private institutions what to do. I make this argument because what is at stake is not silencing. I used the example of the University of Ottawa and Anne Coulter. This was not censorship because Coulter's message was in now way impeded. She could continue to say whatever she wanted to say and have lots of media coverage. The fact that the University of Ottawa (this happens to be a university but you could pick any other private institution, say the Lion's Club or the local Legion, etc.) will not let Coulter speak means not that she cannot speak but that she cannot speak in that space. Said differently, I have a right to free speech but I don't have a right to come into your own and force you to listen to me.

Second, and perhaps a bit more evident, free speech cannot be used as an excuse to plan a criminal act or to contribute to an act that creates the possibility of danger for another. By possibility I mean reasonable possibility as under the law. A person who ignores a reasonable possibility of harm to others and does not take action is guilty of negligence. A person who commits a criminal act is guilty of that crime. I argue that we have to accept responsibility for our actions. We cannot plan a crime and take responsibility even if other executed that crime. Likewise, if I create a dangerous situation for others and do nothing about it, I am guilty of a crime. Speech is no different. In Canada we rightly censor speech that contributes to crime (it is, for example, illegal to plan a murder in Canada with another person).

Now this company (Racknine), what of them? Do they not have a legal right to take someone to court if that person is spreading lies about them. Yes, they do. And, we don't want to get rid of this principle: the use of the courts to seek remedies to injustice. In this sense, I might even argue that Racknine is doing nothing wrong in bringing the suit. However, the courts should still throw it out or force a long -- publicly paid for on the part of the defendant -- open court case. (Personally, I know nothing about Racknine).

In other words, we need to create a system whereby the legal system cannot be used as  a tool to stifle democracy. We cannot eliminate the right of the company to sue but we also cannot risk silencing through suits or threats of suits. That would, frankly, give large corporations the ability to shut down arguments any time they faced someone or group from a less wealthy background.

But, there is another big point here and one that might get lost in the shuffle and so I really want to bring it up. While we cannot eliminate Racknine (or, any plaintiff's) right to bring a case, we also cannot assume the guilt of the person they are suing. In other words, the company (or, any plaintiff) has the right to bring the suit and getting rid of this right threatens the rule of law. But, so too does assume that the defendant (any defendant) is guilty. And, because this person is not guilty, he needs to be afforded every assistance in order to maintian his innocence. I admit that this sounds like odd logic because I am saying everyone is right but what I am really saying is that we cannot allow censorship nor can we make decisions that assume guilt or abrogate the rule of law. This case makes these principles look contradictory but if you think about it, I think you'll see the merits of my position. 

This case is, then, different from other instances where I have argued that the state or private institutions have right to regulate speech in specific geographies. I've argued that we need to guard against the use of the legal system for political gain (or, individual economic gain) but we do need to maintain the rule of law. And we need to ensure that large companies -- with considerably more resources that you or I -- do not use those resources to silence Canadians in a politically obnoxious way.  Luckily, we don't have to do that. By using  the public financing of such defences and open-ness, we can ensure both the justice is done and that democracy is served.

Keep an eye on this story. I suspect this is not the last we have heard of it.
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