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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