Randal Marlin
Page 48
the First Amendment,” as follows:
The principle of open discussion is a method of achieving a more adaptable and at the
same time more stable community, of maintaining the precarious balance between
healthy cleavage and necessary consensus. This may not always have been true, and
may not be true of many existing societies. But where men have learned how to func-
tion within the law, an open society will be the stronger and more cohesive one.
Attitudes and ideas are likely, on this reasoning, to become stereotyped and institu-
tions to lose their vitality when opposing voices are suppressed. “Opposition serves a
vital social function in offsetting or ameliorating this normal process of bureaucratic
decay.”35
Social Interaction and Community
Unlike the two previous arguments, which are suited to considerations of relations
between the individual and the state, this argument looks at relations between individu-
als within the state. According to this argument, developed by Richard Moon, the value
of freedom of expression lies with social interaction. He writes:
By communicating an individual forms relationships and associations with others—
family, friends, co-workers, church congregation, countrymen. By entering into dis-
cussion with others an individual participates in the development of knowledge and
in the direction of the community.
The value attached to freedom of expression, then, is based on the recognition
that the good of the individual is bound up with the community. Expression is the
way we interact with others and so participate in social goods such as friendship
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 241
BV-Propaganda-Interior-04.indd 241
9/5/13 4:52 PM
and self-government. And through expression individuals develop their human
capacities.36
This argument is not advanced by Moon as a way of forcing others to speak against
their will—specifically for a newspaper to publish an advertisement—but it can be
argued that, for instance, in refusing to print a classified advertisement for a gay publi-
cation, the Vancouver Sun was choking off lines of communication. If communication
between individuals is such an important activity, the controllers of dominant media
should not have the right arbitrarily to deny access to anyone.37
Moon conceives his argument as giving a broad scope for freedom of expression.
It protects “various forms of symbolic communication such as dance, music, painting
and sculpture.” He also recognizes that the value of social interaction and community
is not the only value, and he takes self-development and autonomy into account when
he considers the question of pornography. There is, he says,
the certainty that pornography does not advance the values that underlie the free-
dom—the development of an individual’s capacity for intelligent thought and
emotional experience and for establishing relationships with others. Indeed, pornog-
raphy, by portraying human beings as objects for sensual gratification, may actually
inhibit the capacity of the consumer to experience complex emotions and relate to
other individuals.38
Here, of course, the definition of pornography comes into question. Moon pro-
poses that the legislature concern itself only with the most offensive pornography,
that which depicts the use of violence against other human beings and has no other
purpose than sexual stimulation.
The Slippery Slope to Tyranny
Any restrictions to freedom of expression will always open the door to possible others,
because analogical reasoning can mount arguments showing why this or that class of
objects is closely similar to those for which exceptions have been made.
Precisely because the case for free speech is complex and rests on different consid-
erations, it becomes impossible to draw a sharp line between what restrictions should
be permitted and what not. We are right to recognize that with each new restraint there
comes the possibility of new analogies in the light of which further restraints become
permitted. From fear of the slippery slope some thinkers have thought, at different times
in history, that freedom of expression should be absolute and that there should be no
government interference with free speech whatsoever.
But this position is untenable. Even if one distinguishes between “regulation” of
speech and “interference” with speech, so as to support, for example, rules of order in
242 PROPAGANDA AND THE ETHICS OF PERSUASION
BV-Propaganda-Interior-04.indd 242
9/5/13 4:52 PM
debate or the regulation of airwaves, there are generally agreed-on needs for restraint such as cases of libel, public mischief, fraud, copyright, military secrets in time of war,
professional confidentiality, government confidentiality, fair trials, names of juvenile
offenders, etc. Most people also draw the line to prohibit the most offensive kinds of
obscenity or hate propaganda. Being on the slippery slope, we do not have to assume
that any additional restraint will send us inexorably down the perilous slide. The
answer to the slippery slope argument must be that each new case for restraint must
be looked at carefully in the light of the whole battery of philosophical arguments.
Justice Learned Hand’s decision in United States v. Associated Press, referred to
earlier, is a model for dealing with slippery slope reasoning. He argued for prohibit-
ing Associated Press from having a monopoly arrangement with one newspaper in
Chicago. He recognized that one could extend the anti-monopoly reasoning to an
unacceptable extent and considered the problem of finding limits to the protection
of competition:
Does [the principle] apply to the engagement of a single reporter by a single editor?
. . The answer to such questions need not embarrass us: their pertinency presup-
poses that whatever is true in small matters, must be true in large; and the greater
part of the law is founded upon a denial of exactly that; for in law differences in
quantity again and again become decisive differences in quality.... [I]t is enough that
in the case at bar AP is a vast, intricately reticulated organization, the largest of its
kind, gathering news from all over the world, the chief single source of news for the
American press, universally agreed to be of prime consequence. Wherever may be
the vanishing point of public concern with any particular source of information, that
point is far beyond this service.39
Legitimation of Lifestyles
A society that disapproves of a certain lifestyle may decide that a limited level of toler-
ance is better than an attempt to eradicate the activity entirely. The rule, written or
unwritten, may be that the activity will be tolerated if it is not carried out too openly.
Under these circumstances, as the old saying has it, hypocrisy will be the tribute that
vice pays to virtue. The flip side of this thinking is that restrictions on freedom to
express oneself in this area are likely to reinforce public attitudes against the activity
in question. It follows that those who have hitherto been denied openness—unfairly,
in the view of practitioners—will want to ensure that it is gr
anted, precisely in order
to remove the stigma that comes from having expression of their lifestyle prohibited.
Joseph Raz presents arguments in favour of free speech that “turn on the funda-
mental need for public validation of one’s way of life, and on the need for public rec-
ognition as a way of transmitting, preserving, and developing ways of life.” He makes
the point (surely a valid one) that, in a genuinely pluralistic society, there will be a
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 243
BV-Propaganda-Interior-04.indd 243
9/5/13 4:52 PM
need to grant recognition to a range of different conflicting world outlooks. Freedom to express those outlooks will be essential to the sense of self-worth of individual members of different religious, moral, or ethnic groups. This freedom he treats as “a foun-
dational part of the political and civic culture of pluralistic democracies.”40 In other
words, it is not only a means to an end, although harmony is likely to be promoted by
it, but it is also constitutive of what a pluralistic liberal democracy means.
ConCLUSIon
How do these general philosophical considerations of free speech principles apply in
setting proper limits to legislation or informal restraints against propaganda? It makes
sense for us now to turn our attention to existing legislation and to evaluate it in the
light of the arguments above. We may also speculate about what new forms of control
might reasonably be instituted.
notes
1 This analysis is the reflection of one who has followed for three decades or so day-to-day manifestations of opinion in newspapers, radio, and the university workplace. It is certainly open to challenge should anyone have a well-designed empirical study that gives contrary evidence. I am fairly confident that human rights legislation will have produced a counterproductive backlash in certain strata or pockets of society, at least for a time. My remarks have to do with overall tendencies.
2 “The rule that a deliberate intent to fight with deadly weapons is malicious, and that as a consequence, death inflicted in a duel is murder, is remarkable as an instance in which the law has had a great influence in bringing about change in the moral sentiment of the country, and the rather, because convictions for murder, by duelling, were almost unknown. Had it been once conceded that to kill in a duel is not murder, duels would have been sanctioned by practice much longer.” James Fitzjames Stephen, A General View of the Criminal Law of England (London and Cambridge: Macmillan, 1863) 120.
3 James Fitzjames Stephen, A Digest of the Criminal Law of England (London: Macmillan, 1877) 56.
4 S.G. Tallentyre (pseudonym for Beatrice Hal ), The Friends of Voltaire (New York: U.P. Putnam’s Sons, 1907) 199.
5 John Milton, Areopagitica and Of Education, ed. George H. Sabine (Northbrook, IL: AHM Publishing, 1951) 6. References to this work come from this edition and will be indicated by JM and page number in brackets in the text.
6 John Morley, On Compromise (London: Macmillan, 1923) 104.
7 John Locke, A Letter Concerning Toleration, ed. John Horton and Susan Mendus (London and New York: Routledge, 1991) 46.
8 James Fitzjames Stephen, Horae Sabbaticae (London: Macmillan, 1892), Essay 10: “Locke on Toleration,” 171.
9 John Stuart Mill, On Liberty, ed. Currin V. Shields (1859; Indianapolis: Bobbs-Merrill, 1956) 69. References to this work come from this edition and will be indicated by JSM and page number in brackets in the text.
10 The example is not merely hypothetical. The Globe and Mail reported that Ontario Supreme Court Justice Janet Scott issued an injunction against anti-abortion demonstrators, ruling among other things that the word “killing” in signs they carried was “defamatory.” See “Anti-Abortionists Ordered Not To Picket Near MD’s Office,” Globe and Mail, July 14, 1987. I wrote a critical letter to the same newspaper, “Free Expression Limited on Abortion,” Globe and Mail, August 12, 1987. Also, in November-December 1981, the Toronto 244 PROPAGANDA AND THE ETHICS OF PERSUASION
BV-Propaganda-Interior-04.indd 244
9/5/13 4:52 PM
Transit Commission cancelled an advertisement by the Toronto Right to Life Association, following public pressure, although it met the standards of the ASC.
11 George Bernard Shaw, Man and Superman, 1905.
12 Compare on this point, Kierkegaard: “When truth conquers with the help of 10,000 yelling men—even supposing that that which is victorious is a truth: with the form and manner of the victory a far greater untruth is victorious.” See Robert Bretal , ed., A Kierkegaard Anthology (New York: The Modern Library, 1946) 431.
13 Mill seemed to be including the liar in his argument, where he talks about the inadvisability of the law suppressing a controversialist simply for misrepresenting an opponent’s position.
14 Fitzjames Stephen wrote in a letter to Lord Lytton, Viceroy of India, the following: “I have not often felt smaller, or less well satisfied with myself, than I did when Sir Rutherford Alcock expounded at the Council room of Calcutta the views taken by the Chinese of the opium traffic and of the treaty by which they are obliged to tolerate it. Most of the Council treated their remonstrances and appeals to justice and common morality as a sort of joke and as wretched cant. I did not agree with them at all and I suspect that some day or other, we shall see cause to regret bitterly the line we have taken and are taking with them.” See Fitzjames Stephen MSS, Cambridge University Library, Add. 7349/14/1. I wish to thank A.E.B. Owen, Keeper of Manuscripts, for assistance in interpreting the handwriting and verifying the reference.
15 James Fitzjames Stephen, Liberty, Equality, Fraternity (1874; Cambridge: Cambridge University Press, 1967) 63–64.
16 For more on this topic see my “Censoring Pornography,” Women and Public Policy: Reprints from Policy Options, ed. Doris Anderson (Kingston: The Institute for Research on Public Policy, 1987) 64–69.
17 Fitzjames Stephen 69–70.
18 UK, Committee on Homosexual Offences and Prostitution, CMD 247, 1957. See also The Wolfenden Report (New York: Lancer Books, 1964).
19 Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1968).
20 H.L.A. Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963).
21 Hart 12. The case is Shaw v. Director of Public Prosecutions (1961) 2 A.E.R. 446. (1962) A.C.
22 Fitzjames Stephen was a believer in codification of the criminal law in accord with public morality. He would have been sympathetic to Hart’s Benthamite objection concerning the uncertainty brought about by the general crime of “conspiracy to corrupt morals,” but he would have had no difficulty in seeing Shaw’s book as in violation of criminal law on other counts. See Fitzjames Stephen, A Digest of the Criminal Code Article 172.
23 H.J. McCloskey, “Liberty of Expression: Its Grounds and Limits (I),” Inquiry 13 (1970): 219–37.
24 Margaret Wente wrote two columns for the Globe and Mail on the subject in April and May 2000.
25 D.H. Monro, “Liberty of Expression: Its Grounds and Limits (II),” Berger, Freedom of Expression 58–70.
26 Charles Rembar, “For Sale: Freedom of Speech,” The Atlantic Monthly 247, no. 3 (March 1981): 31.
27 Canada, Special Committee on Hate Propaganda in Canada, Report (Ottawa: Queen’s Printer, 1966) 8, 9.
28 Abrams v. United States (1919): 250 U.S. 616.
29 Eric Barendt, Freedom of Speech (Oxford: Oxford University Press, 1987) 19.
30 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper and Bros., 1948) 8.
31 Whitney v. California, 1927: 274 U.S. 347, at 375–76.
32 Boucher v. The King, 1 Dominion Law Reports (1951): 657.
33 Justice Learned Hand, United States v. Associated Press (1943): 52 F. Supp. 362, DCSD, NY.
34 Assoc
iated Press v. US 326, US Reports I (1945): 17–20.
35 Thomas I. Emerson, “Toward a General Theory of the First Amendment,” The Yale Law Journal 72 (1963): 877, 884.
36 Richard Moon, “The Scope of Freedom of Expression,” Osgoode Hall Law Journal 23,2 (1985): 331, 348.
37 The reference is to The Gay Alliance Toward Equality v. The Vancouver Sun (1979) 2 SCR 435, decided in favour of the Vancouver Sun, Chief Justice Bora Laskin dissenting.
38 Moon 353, 355.
39 Hand.
40 Joseph Raz, “Free Expression and Personal Identification,” Oxford Journal of Legal Studies 11, no. 3 (1991): 324.
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 245
BV-Propaganda-Interior-04.indd 245
9/5/13 4:52 PM
BV-Propaganda-Interior-04.indd 246
9/5/13 4:52 PM
CHAPTER 7
The Question of Controls
CHAPTER 7: THE
QUESTION OF
CONTROLS
InTRoDUCTIon
In the light of arguments reviewed in the previous chapter, any attempts to justify
limits to freedom of expression and to implement controls of any kind will have a
heavy burden of proof to discharge. This is especially true in jurisdictions such as
Canada and the United States, where freedom of expression is a constitutionally
protected right. Nevertheless, some forms of legal and quasi-legal controls have
already been tested in the courts of those countries and have survived the test,
although not always in a way that gives confidence in their permanent survival.
Should government exert control through legislation over the media and advertis-
ing? Is it better to leave matters of press responsibility and advertising and PR ethics
to the relevant responsible elements in those professions, or would this be like putting
the fox in charge of the henhouse? Since attempts at self-policing have existed for
some decades, we will look at what they have accomplished, focusing on three things:
advertising, and the standards developed in that business; press councils, notably the
Ontario Press Council; and government information, with suggested guidelines for
its provision. One aspect of government information is directly linked to both of the