Free Speech: Canada vs. United States

Free speech is a crucial value that is inscribed in the constitutions of the majority of democracies across the world. However, different countries have varied definitions of what constitutes free speech, which is why different Supreme Courts will examine cases differently and reach different conclusions. Free speech has restrictions, much like other rights guaranteed by the Bill of Rights, and these restrictions depend on the varied interpretations and implications taken into account by the laws that govern a nation (Elósegui and Cristina 34). It follows that different countries may have different definitions of what constitutes hate speech or incitement to violence. In an attempt to understand, the similarities and differences between the manners in which different countries approach cases relating to free speech, the essay examines a hate speech case in the US and incitement to violence case in Canada. Also, the definition of pornography in relation to free speech will be discussed with regards to the similarities and differences between the two neighboring nations.

Hate Speech and Incitement to Violence

The approach of Canadian Supreme Court to cases relating to incitement to violence can be examined by considering various aspects of the case, R. v. Keegstra. The Canadian Constitution under the Charter of Rights has a criminal code that bars its citizens from committing public or willful promotion of incitement to violence against identifiable groups. The responsibility of proof lies with the accused party to an incitement to hatred case by likelihood (Nasir 68). In the above case, an Alberta high school head was charged with willfully promoting hatred a certain group through communicating anti-Semitic statements to students. The Court held that the criminal code under sec. 319(2) did not suppress free speech as provided in sec. 2 of the Canadian Charter of Rights and Freedoms. The accused was later tried and convicted of the offense. The Canadian criminal code emphasizes a reasonable limit on free speech. For instance, it clearly defines what constitute incitement to violence, hate propaganda as well as violence itself. It offers various parameters upon which judges can evaluate an incitement to violence case.

In Canada, no one can be convicted of an offense of incitement to violence if they can prove that their comments were true. Moreover, the conviction becomes invalid if one convinces the jury that they tried, in good faith to explain a concept within the context of either public opinion or region. Besides, one may not face conviction if such statements are relevant to a subject of public interest as well as showing the purpose or intentions in that respect (Elósegui and Cristina 65). According to Canadian criminal laws, incitement to violence or hatred is illegal and has limitations on free speech. More often, incitement to violence involves public statements whose content intend harm against a particular group of persons (Nasir73). However, the Canadian laws are very clear regarding the prosecution of inciters who can be jailed for up to two years in prison. So then, the ground for prosecuting incitement to violence is precise, and a court of law can quickly and successfully hold a person to account. It further categorizes incitement to violence into two groups: free as well as the willful promotion of violence.

The decision in the case of William Whatcott of Saskatchewan is an explicit confirmation that Canada has strict rules and affirmative action for incitement to hatred (Nasir 92). The Canadian Supreme Court held in 2013 that incitement to hatred laws have stringent limits on free speech. Canada judicial system recognizes the role of limiting freedom of expression on the realization of a discriminatory-free society with reduced harmful effects as well as social costs of discriminatory speech.

The current protection of such forms of speech is narrower than expected which gives room for sanctions against a broad range of conduct that is fueled by and portrays hostility towards targeted social groups. In the First Amendment of the US federal constitution, there is no definition of “Freedom of speech” that the government is forbidden to modify (Johnson 267). Consequently, judicial interpretation provides more detail concerning this matter. Therefore, the opinions of the United States Supreme Court generate the law. This paper gives some analysis of some cases on the subject, which help to bring out the inclination of the court towards hate speech.

The first case is that of Wisconsin v. Mitchell, 508 U.S. 476 (1993). In the case description, Mitchell alongside several black youngsters was outside a movie theater. They had watched Mississippi Burning in which some blacks are roughed up. A white boy happened to pass by them and “There goes a white boy; go get him!” Mitchell shouted. She and her friends attacked the boy and beat him up. According to the criminal law, penalties are accorded based on the seriousness of the crime. It does not matter whether it was intentional or accidental, as long as the victim was harmed (Johnson 266). It is also common to have cases given serious treatment depending on the victim. For instance, beating up a teacher, police officer or a child is treated more harshly.

According to Wisconsin bill, the penalty is more severe if the perpetrator selects the victim by religion, disability, race or nationality. In this particular case, the Supreme Court gave a ruling that the increased penalty did not go against the free speech rights of the one accused. According to the Court’s reasoning, the sentence was not increased because of Michelle’s thoughts, rather because it targeted a particular victim.

In the year 1992, the US Supreme Court gave a very straightforward judgment on the case R.A.V. v. City of St. Paul, Minnesota. This was a juvenile proceeding involving a 14-year-old white, who burnt down a cross on the lawn of a black family in a St. Paul neighborhood in Minnesota. Scorching down a cross is a loathly act which is among the symbols of an individual organization known as Ku Klux Klan that has spread hatred throughout the US. The burning down of the cross showed that this kid did not welcome them to the neighborhood (Johnson 281). The family brought charges in court, and the offender was prosecuted. The Minnesota criminal law used in the prosecution made it illegal to put on any public or private asset, swastika, a burning cross or any sign likely to cause outrage in public by religion, gender or race. The US Supreme Court gave a ruling against the Minnesota law, terming it as unconstitutional since it desecrated the boy’s First Amendment free speech rights.

It is important to note, however, that the court did not rule that the act of burning the cross was legal. As a matter of fact, the youth could be charged responsible for the damage to property or intimidation of the black family. On the contrary, the law was erroneous since it did not properly focus on the motivation behind the improper behavior rather than the act itself (Johnson 266). It purposed to discipline the youth for the content of his message and not the actions he committed.

According to (Johnson 286), hate speech may be regulated in various manners, using the communitarian or the libertarian perspective. The US Supreme Court engaged the Libertarian approach in these two cases. According to the libertarian view, people have the right to free speech and the government’s regulatory intervention only should be applied for unavoidable reasons. Thus, fighting words are reason enough to limit free speech.

However, both the US and Canada judicial systems guarantee the protection of freedom of expression and put some limitations on such freedoms when the situation calls for such decisions. The legal principle for both countries is that freedom of expression should never be employed in a manner that creates discomfort for other groups of people as in the case of hate speech and incitement to violence (Elósegui and Cristina 81). Conversely, in the US, the approach to dealing with incitement to violence and hate speech is much different from Canada’s. Canada tends to be very strict on incitement to violence and hate speech even on minor cases while the US is seemingly terrible when it comes to only extreme circumstances.

Pornography

Another concept that distinguishes the freedom of speech between Canadian and American law is pornography. This, as exists in various English dictionaries, is not recognizable in the same context.

American Perspective

The legal definition of pornography has evolved through the decades since 1960s, a period that exhibited a significant boom in the pornography industry in the United States of America. At the moment, the euphemism ‘sexually explicit content’ was used to cover any material that would show any forms of arousal content. However, the term was ambiguous and was separated from pornography by the Miller v. California case, which determined that that the difference between the two is artificial. In this case, the Supreme Court adopted the 1969 Webster’s Third New International Dictionary, defining pornography as a lewd or licentious work that portrays erotic behavior that is “designed to cause sexual excitement” (Morality Media). The case categorized the term pornography as a generic term rather than a legal one.

In defining obscenity, the Miller v. California case established a test to determine whether a material world be termed as being obscene, thus falling out of the confines of the First Amendment protection. In the cases where a charge is placed regarding a material as being obscene and, therefore, warranting punishment, three things have to be determined by the jury:

The complainant, with regards to the contemporary community standards, appeals to indecency; AND

That the material shows or indicates offensive sexual conduct relative to the community’s moral code, specifically defined by an applicable law; AND

That it would fall out of the reasonable definition of serious artistic, literary, scientific, or political value.

This test became referred to as the Miller Test (Morality Media). Material that falls under the second test’s regulation include any offensive material that depicts sexual acts, whether normal, perverted or stimulated and those involving masturbation, excretory functions, lewd exposure of genitals, and sadomasochistic acts (Day).

The Supreme Court, in declaring the validity of the three-pronged Miller’s test, did so in the interest of the public. The test distinguishes pornography and obscenity. The former is not illegal and is protected under the First Amendment as a part of self-expression, except when it involves children in whatever nature or form. However, the latter is illegal (Makau and Arnett 166). Therefore, a case that involves any incidences that may be termed obscene are punishable by either fine or law.

Various organizations have tried to define pornography in ways that depict it as being in contravention with the intentions of good for the community or societal mannerism. For instance, the Anti-pornography Civil Rights Ordinance’s definition of pornography is that it is a sexually explicit graphic material or content that subordinates women in visual or written art. The inclusion of the term subordination called for its dismissal by the Federal Appeals Court on the grounds of unconstitutionality in the American Booksellers v. Hudson Indianapolis case (American Booksellers Ass'n, Inc. v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984)). The courts, in protecting First Amendment rights, also barred the categorization of pornography as a part of prostitution in the State of New York and California (Fass). In the State v. Henry (1987), the Oregon Supreme Court banned any attempts to define obscenity on the grounds that it violated the First Amendment rights, which protect the freedom of speech and expression (State v. Henry). The only terms legally defined with relation to sexually arousing content are ‘hardcore pornography’ and ‘child pornography’, which are punishable. Obscenity and pornography ceased to exist as legal terms following the Miller’s test citing the various in the definition of obscenity according to different communities within the country.

The American definition of acts that are meant to arouse any forms of sexual desire is complicated. Even though it appears to be a simple act of consuming, producing, or distributing arousal content, the law applies differently. Pornography is a non-legal term and any prosecutions can hardly stand as it could be dismissed on the ground of contravention of the First Amendment laws of freedom of speech. Obscene is still an ambiguous term and its definition is banned for the same reason as that for pornography and that different societies have their individual and contextual views of what is obscene or not. The two fail the Miller’s test. However, it is clear that hardcore pornography and child pornography pass the test, meaning that the act is not legally protected under the First Amendments rights, and is, thus, a crime that is punishable.

Canada’s Perspective

Pornography, from the Canadian perspective, is viewed as explicit content that is designed to elicit sexual desires and arousal in the viewers. Some additional parts include the appending of the words that it is meant to subordinate women or bring harmful to them and children. Legally, the Canadian law specifically categorizes pornography under the criminal code section 163.1 (Chenier 229), which defines child pornography. Any exposure of children to pornography or their involvement is termed as being illegal. In this sense, the Canadian and American laws are similar. In both countries, child pornography is outright illegal.

However, a significant difference comes in the definition of obscenity. While American law banned its definition for possible ambiguity and breach of the First Amendment rights, Canada has a legal definition. While the in the 1960s pornography was illegal as defined under the Criminal Law Amendment Act of 1968, the arguments and conclusion of the R v. Butler case (Juson and Lillington 655). Many of the obscenity laws were challenged, which led to a new definition. The Criminal Code of Canada defines obscenity as “the undue exploitation of sex or of sex and one or more of the following subjects; namely, crime, horror, cruelty and violence” (Friedland 193). The court further clarified that the term ‘undue’ as referring to a degree of harm with regards to acts that may be termed as being anti-social. From the court proceedings, pornography was declared as being harmful if it has parts that degrade any gender or dehumanizes a person, violent scenes, or it is explicit in nature. Also, any film or material that poses substantial harm to the rights of women is prohibited (Juson and Lillington 651).

The R v. Butler case judgment set a crucial benchmark in determining cases that came afterwards and shaping the public policy in relation to issues related to pornography and erotic content. An important fact rises from the interpretation given from the definition of pronography, which is crucial to free speech. It is the aspect of forced sex scenes versus voluntary ones. Any scene from which an involved party raises complaints about having been coerced into taking part amount to obscenity and are, thus pubishable under the Criminal Code of Canada. Acts of violence or degradation of women or men in unnutral acts is also termed obscene as it is bound to cause harm to a perso, either within the film or in the process of making the content or afterwards in distribution and consumption. It is, thus categorized under obscenity. However, erotic scenes are that are made by consentic partnerships is legal and categorized uner the freedom of speech (Sumner). For this reason, pornographic content is distributed and sold in stores and online as legal businesses with clients from within different states of Canada.

The issues raised in the question of whether or not pornography and obscenity are the same have different interpretations in the two countries. First, the United States Supreme Court does not acknowledge any definitions of obscenity owing to the fact that it could be given any meaning by any community or person, and is subject to abuse, which threatens the breach of the First Amendment rights. Second, pornography is prohibited only if it fits the description of ‘hardcore’ or ‘child pornography’. It also prohibits any material that passes the Miller’s test. On the other hand, Canadian Supreme Court upheld a definition of obscenity as anything that degrades human dignity or indicates violence and force, thus categorizing it as a criminal act. In Canada, pornography is legal if it does not contain any of the things mentioned above in the definition of obscenity.



Conclusion

Free speech is a fundamental right that every democracy desires as a matter of principle. However, if not controlled, it can adversely affect the social fabrics of society through its discriminatory tendencies. Freedom of expression is a characteristic component of a civilized democratic society. It is among the conditions necessary for the progress of the community and humankind in general. The US in recent times has been known to provide extensively extended protection for obnoxious expressions and speeches. Hate speech lies among the areas in which they have distanced themselves out on the speech-protective side. The US position in the domestic law is a matter of recent origin that has been preceded by series of narrow-mindedness towards some form of speeches on issues of concern to the public. With regards to Pornography, the differences between the laws in the two nations lie in the interpretation. In one way or another, free speech is granted, although with restrictions in situations that may be deemed dangerous or demeaning in the society.



Works Cited

American Booksellers Association, Inc. v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984). No. IP 84-791C. U.S. District Court for the Southern District of Indiana. 19 November 1984. Online. .

Chenier, Elise Rose. Strangers in Our Midst: Sexual Deviancy in Postwar Ontario. University of Toronto Press, 2008. Print.

Day, Meagan. The history of the legal test that decides what porn you get to see. 12 October 2016. Online. 4 May 2017. .

Elósegui, María, and Cristina Hermida, eds. Racial Justice, Policies and Courts' Legal Reasoning in Europe. Vol. 60. Springer, 2017.

Fass, Mark. Judge Sees No Link Between Prostitution, Paying for Sex to Make Films. 1 August 2005. Online. 4 May 2017. .

Friedland, Martin L. Cases and Materials on Criminal Law and Procedure. University of Toronto Press, 1978. Print.

Johnson, Thomas C. "Overview of the US Criminal Justice System and Safety Tips for International Students." Campus Support Services, Programs, and Policies for International Students. IGI Global, 2016. 264-288.

Juson, Justine and Brenda Lillington. "R. v. Butler: Recognizing the Expressive Value and." Golden Gate University Law Review 23.2 (1993): 651-678. Print.

Makau, Josina M. and Ronald C. Arnett. Communication Ethics in an Age of Diversity. Illinois: University of Illinois Press, 1997. Print.

Morality Media. Definitions of Pornography,. 2001. Online. 4 May 2017. .

Nasir, Muhammad Ali. "Weighing words: On the governmentality of free speech." Social & Legal Studies 25.1 (2016): 69-92.

State v. Henry. No. 732 P.2d 9. Supreme Court of Oregon. 8 October 1986. Online. .

Sumner, L. W. The Hateful and the Obscene: Studies in the Limits of Free Expression. Toronto: University of Toronto, 2004.











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