Freedom of Expression & Its Limits

Remember when you were in high school and you got angry about a decision made by a teacher, team coach or principal?  Brandi Levy, a grade 10 student in Pennsylvania, found out she had not been promoted to the varsity cheering squad in her public high school. She also did not approve of the choice of a younger girl for the more senior team position. Not only that, she did not get the position she wanted on the school’s softball team. She was not a happy girl.

In early June, the New York Times ran a piece by Michael Powell entitled “Once a Bastion of Free Speech, the ACLU Faces an Identity Crisis.” So what’s new? The author claims that there is a schism in the American Civil Liberties Union whereby the old or “classic” civil libertarians stand up for free speech, no matter the content of that speech, while the younger or more “woke” activists want to see the organization focus on anti-racism action.

Some years ago, a high school history teacher I know told me that he had received an essay that supported Holocaust denial. The student, who was told to use primary and secondary sources in his research, cited his grandfather. Grandpa had been in the army of an Eastern European country and had assured his grandson that the Holocaust was a hoax. He had seen Auschwitz. It had a swimming pool. It was actually like Club Med, reported Grandpa.

The violent attacks on Capitol Hill in Washington, DC, on January 6th were, in large part, a culmination of four years of a political regime that incited violence and hatred based on racism, white supremacy and xenophobia. In the aftermath, governments, law enforcement and the public are searching for ways to hold the perpetrators accountable and ensure such violence isn’t repeated, even as threats of similar mob violence on inauguration day rise.

An easy mistake to make in any discussion of freedom of expression is to believe there is absolute certainty anywhere in the definition of that term. If you are jumping into a debate on free speech certain you know exactly what you believe (plus all the implications of that belief), chances are you’ve grossly over-estimated your own position. If you’re doing that on Twitter, either get your thumbs familiar with the block/mute functions, or free up a lot of time for an epic Twitter fight unlikely to solve anything for anyone.

On September 10, 2020, the Supreme Court of Canada released its highly anticipated decisions in two cases addressing the interpretation and application of Ontario’s “anti-SLAPP” laws.  The two appeals — 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v.