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28 Const. F. 1 (2019)

handle is hein.journals/consfo28 and id is 1 raw text is: What happens when the assumptions underlying our commitment to free speech no longer hold?' Richard Moon* The Underlying Assumptions A commitment to freedom of expression means that an individual must be free to speak to others and to hear what others may say, without inter- ference from the state. It is said that the answer to bad or erroneous speech is not censorship, but rather more and better speech. Importantly the listener, and not the speaker, is seen as responsible (as an independent agent) for his or her actions, including harmful actions, whether these actions occur because he or she agrees or disagrees with the speaker's message. In other words, respect for the autonomy of the individual - whether as speaker or listener - means that speech is not ordinarily regarded as a 'cause' of harmful action. A speaker does not 'cause' harm simply because she or he persuades the audience of a particu- lar view and the audience acts on that view in a harmful way. Underlying this commitment to freedom of expression (and the refusal to treat speech as a 'cause' of subsequent harm) is a belief that humans are substantially rational beings, capable of eval- uating factual and other claims, and an assump- tion that public discourse is open to a wide range of competing views that may be assessed by the audience. The claim that 'bad' speech should not be censored, but instead answered by 'better' speech, depends on both of these assumptions - the reasonableness of human judgment and the availability of competing perspectives. A third, but less obvious, assumption underpinning the protection of freedom of expression is that the state has the effective power to either prevent or punish harmful action by the audience. Individ- uals will sometimes make poor judgments. The community's willingness to bear the risk of such errors in judgment may depend on the state's ability to prevent the harmful actions of audience members or at least to hold audience members to account for their actions. Expression cannot be restricted by the state simply because it might persuade its audience to act in a harmful way or because it might negatively affect an individual's or group's self-understand- ing or self-esteem. The courts, in Canada and elsewhere, though, recognize that these assump- tions about the audience's agency or judgment that underlie the protection of speech may not always hold (and indeed never hold perfectly). Prohibitions on false or misleading product claims have been supported because advertisers have overwhelming power in the 'marketplace of ideas' and information (so that others have limited opportunities to correct misleading ads) and because so much commercial advertising is non-rational or visceral in its appeal. Similarly, the restriction of defamatory speech rests on a recognition that false claims made about an indi- vidual are not easily corrected through 'more speech.' The harm of defamatory speech may persist, because the audience is not always in a position to assess the false and damaging claims Constitutional Forum constitutionnel

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