On the increasing legal suppression of freedom of thought and expression in so-called free and democratic societies

(As evidence for increasing totalitarianism)

By Denis G. Rancourt

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.
--John Milton, Areopagitica, 1644

My main overriding message is far from new: that freedom of thought, opinion, and expression is the very basis of a fair society. That freedom of speech is the foundational individual right for a truly democratic system to exist or emerge. And that this freedom must be defended without compromise, and without bias against any particular view, no matter how distasteful or disturbing the particular view might be to some or most people.

Undemocratic powerful interests always benefit from any successful attempt to divide and conquer by censoring targeted expression. Citizens should fiercely unite around the principle of freedom of expression, and vehemently reject all constraints on form or content of individual expression (choice of words, signing, body language, tone, and images).

The message of the centrality of free expression in human societies has been strongly made by a stellar array of historical figures (Milton, Locke, Spinoza, Voltaire, Diderot, John Stuart Mill ...), and it is stated in universal covenants and declarations, but it is largely not understood or authentically accepted by a majority of societal actors. Thus, I make this added attempt to drive the point home with the following recent examples and analysis, at a time when totalitarianism is evidently making substantive forays across the Western world.

The threat against our freedoms is not from outside. Rather, it is from those who manage us. And, injustices cannot be resolved unless individuals are free to exert influence through speech. Individual influence is the primary mechanism of accountability of institutions, of private corporations, and of governments.

Only a small part of the full spectrum of increasing suppression of personal freedoms --

• from media concentration, 
• to editorial alignment and an absence of journalistic independence, 
• to CIA oversight of Hollywood, 
• to structural threats to web freedom, 
• to copyright excesses, 
• to pay-wall barriers against the sharing publicly-funded research, 
• to extreme and continuous standardized testing in schools, 
• to centralized control of school curricula without professional independence of teachers, 
• to codes of conduct on campuses, 
• to decreasing access to information including one's own personal information held by government, 
• to applied intolerance of "threatening" views in every sphere of life, 
• to legal precedents that disregard international law in freedom of speech cases, 
• to "human rights" codes that do not require establishing actual harm against any actual victim, 
• to increasingly constrained professional independence in all professions, 
• to "hate speech" criminal codes that jail expressive perpetrators of victimless "crimes", 
• to overbearing and formalized lobby-influence on politicians at every level, 
• to the implementation of complete surveillance, 
• to increasing incarceration rates and increasing sentences, 
• to the militarization of police training, 
• to global witch hunts against whistle blowers, etc. 

-- is considered here.

The present article is a cursory survey of the mechanisms of select legal instruments in the current palpable increase in totalitarianism, as viewed from the perspective of direct state interference in individual thought and expression, occurring in the US and US-aligned countries, Canada in particular.

An Elaborate Edifice of Sophistry to Counter the Threat of Democracy

A society is totalitarian to the exact degree that the individual is prevented from effectually expressing his/her opinions and beliefs. Suppression of expression intended to exert influence is an accurate gauge of totalitarianism.

The elemental opposing force against runaway hierarchical dominance is the balancing force of the individual seeking freedom by attempting to exert influence. [a]

Nothing can be clearer about societal organization. The violent oppression that necessarily accompanies society's dominance hierarchy is countered only by the individual's efforts to have influence, to have a significant say in his/her own life and in the life of his/her community.

The individual, acting alone or in association with other individuals, is the essence of the protection against totalitarianism, fascism, and oligarchic plutocracy, and this is as true in the so-called "free and democratic societies" as anywhere else.

The establishment that manages the dominance hierarchy [1], uses an elaborate edifice of sophistry to artificially dissociate individual expression from the natural right to practice influence by expression. In this way, expression can be controlled where its potential influence is judged undesirable, or where it is feared to have a potential cascading effect on public perception.

Trusting that ideas can be left to be evaluated by individual citizens would be to leave the priorities of society to be decided by people. The resulting risk of popular influence is intolerable to any dominance hierarchy, by definition.

Therefore, for example, despite it being universally accepted, at least on paper and thanks to a residual sway of reason in the present era, that the right to have an opinion is absolute [2], virtually all the statutes, covenants, and legal-establishment treatises nonetheless codify that the right to express an opinion is not absolute, but rather is subject to "reasonable and necessary limits" that can be imposed by the courts that are maintained by the state. The "authorities" go on to pronounce that by imposing "reasonable limits", one achieves a "balance" between the competing interests of expression and of minimizing harm from expression, without ever acknowledging any cognitive malaise from admitting a "right" to freedom of expression while contributing to the massive legal apparatus that controls which expression can actually be free.

The elaborate edifice of sophistry, with its many arms and legs, that is used to assuage discomforts in the legal mind regarding suppression of individual expression is worthy of study and should be explicitly described. To no one's surprise, the needed study is not an exercise for which legal scholars have exhibited much enthusiasm.

The Device of Giving Institutions and Corporations Human Rights to Counter Human Rights

In one branch of the said edifice of sophistry, the court rulings expressly admit that human freedom of expression is essential to human existence and fulfillment, and "constitute[s] the foundation stone for every free and democratic society" [3], yet completely fail to discern expression of the individual from expression of multinational corporations and of powerful individuals representing institutions and nations. As a result, individual expression critical of corporations or critical of officials representing large institutions is scrutinized and carries life-changing consequences whereas mass advertizing, media control, and government propaganda are protected under a contrived umbrella of "freedom of expression", and are not constrained to prevent skewing the democratic process, undue concentrated influence, and suppression of individual freedoms.

On the one hand, there is an absolute paper-right to holding, developing, and changing one's opinion, but on the other hand there is virtually no individual recourse or protection against the dominant practice of top-down social engineering of identities, attitudes, and beliefs. The fringe counter-movements of home schooling and "going off grid" are heavily regulated and come at a high price. And there is no individual protection against employer demands for ideological conformity, especially among professional workers [4].

When a judge is tasked with "balancing" the individual's right of free expression against "reasonable limits" in a "free and democratic society", it never enters his/her legal mind that the powerful individual screeching "defamation" and whose extravagant legal costs are entirely paid by a corporation or using public money should suck it up and adjust accordingly, that the whole idea of a democracy is that there will be a cacophony of criticisms from individual citizens in addition to organized messaging and all the rest.

Instead, typically, the judge will apply the common law of defamation, which evolved to protect the sensitivities of the privileged against false rumours, and to protect the powerful against the democratizing effects of the emerging technology of the printing press, prior to the modern legal enshrinement of the universal principles of human rights.

A Tenacious and Regressive Common Law of Defamation That Is Refusing To Go Away

Even a superficial look at the tenets of the common law of defamation would be enough to make any reasonable person admit that such a structure is incompatible with finding a "balance" that justifies suppressing an individual's expression. Not so for our highest judges [5].

How is the common law of defamation incompatible with the right to free expression? It is not difficult to see, unless you are trained in law [6]:

"[Defamation] is the only common law tort (or cause of action) where damages — actual damage to reputation — and malice (malice of defamation) are assumed, and need not be proven in court. The result is a presumption of guilt — regarding falsity of the expression, malice of the defendant, and damages to the plaintiff — that can only be overturned if the defendant can prove one of the available defences, which are strictly limited and codified. ...

Defamation law is structured such that if a complained of criticism, comment, or opinion is ruled by the court to have the tendency to reduce the social reputation of the plaintiff, in the mind of a fictitious “reasonable person”, then damage to reputation is assumed and a financial award for damages is due, even in a total absence of evidence of actual damage to reputation (such as: lost fans of an artist, lost clients of a service provider, lost social connections, loss of employment, fewer invitations to social or business functions, etc.). The criticism complained of is all that is needed to obtain damages. Guilt is automatic, and the only possible defences are strictly limited and codified, carrying the names of “truth”, “privilege”, “fair comment”, and “responsible reporting”. The presumed-guilty party has the onus to prove an allowed defence."

A minority of Canadian legal scholars, the exceptions that prove the rule, have correctly argued that the presumptions of falsity, malice, and damages structurally inherent in the common law of defamation should be abolished [7].

The OCLA report adds [8]:

"All of this is exacerbated by the fact that there is no practical need for the tort of defamation because there are other common law torts that sufficiently protect against unjustified attacks to personal reputation, and which correctly require proof of harm and of malice. These include the torts of: malicious falsehood, intentional infliction of mental suffering, conspiracy to harm, and so on."

There you have it, in the face of both Canada's international obligations and Canada's own constitutional Charter, its highest court irrationally clings to a defunct common law that most-conveniently suppresses individual expression (Hill v. Church of Scientology, see Endnote-[5]). In the case in question, the Supreme Court even ruled that the fact that the plaintiff (a Crown prosecutor) had "received promotions, was elected a bencher and eventually appointed a trial judge in the General Division of the Court of Ontario" following suffering the alleged possible harm to reputation was simply not relevant in any way [9].

The Device of Attributing Diffuse and Distributed Human Rights to Remove Actual Human Rights of Individuals

Outside of applications of the common law of defamation, the highest courts are further eroding the principle of free expression, rather than moving towards recognizing it as a true right, even when the question before the court is not one of defamation.

A terrifying example has occurred recently (2013) in Canada's supreme court. The legalistic catastrophe was astutely described by social-scientist Professor Peter J. McCormick [10]. In Saskatchewan (Human Rights Commission) v. Whatcott the court somewhat diverged from its own past applications of and tentative skirmishes with the proverbial "balance", and definitively parted from the universally accepted doctrine that expression can be suppressed only to the degree shown to be necessary [11], by finding that "All rights guaranteed under the Canadian Charter of Rights and Freedoms are subject to reasonable limitations" [12], not "necessary limitations" but instead "reasonable limitations".

"Reasonable" means that the court can decide, on the basis of its subjective evaluation, what expression can "reasonably" be suppressed, rather than be burdened by the objective and evidence-based criterion of necessity. And the court did exactly that.

The court even went so far as to find that truth should not be an absolute defence against the state's suppression of an expressed statement that is both truthful and sincerely delivered, and that it can be "reasonable" to suppress such a statement in a "free and democratic society", without needing to make an objective and evidence-based evaluation of whether the suppression is necessary. There can be no substitute for the court's own words, when trying to fully appreciate the sophistry needed to achieve the goal [13]:

139. Critics find the absence of a defence of truth of particular concern, given that seeking truth is one of the strongest justifications for freedom of expression. They argue that the right to speak the truth should not be lightly restricted, and that any restriction should be seen as a serious infringement.

140. I agree with the argument that the quest for truth is an essential component of the “marketplace of ideas” which is, itself, central to a strong democracy. The search for truth is also an important part of self-fulfillment. However, I do not think it is inconsistent with these views to find that not all truthful statements must be free from restriction. Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.

141. As Dickson C.J. stated in Keegstra, at p. 763, there is “very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world”. To the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects on the vulnerable groups that false statements can provoke. The vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message. In not providing for a defence of truth, the legislature has said that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.

142. Some interveners argued that there should be a defence of sincerely held belief. In their view, speech that is made in good faith and on the basis of the speaker’s religious beliefs should be given greater protection, or constitute an absolute defence to any prohibition. These arguments anticipate the question still to be considered of whether an infringement of s. 2(a) of the Charter by s. 14(1)(b) would be justified under a s. 1 analysis. It is sufficient here to say that if the sincerity of a religious belief would automatically preclude the finding of a contravention of s. 14(1)(b), the s. 1 analysis would be derailed with no balancing of the competing rights.

143. Apart from that concern, the fact that a person circulates a hate publication in the furtherance of a sincere religious belief goes to the question of the subjective view of the publisher, which is irrelevant to the objective application of the definition of hatred. Allowing the dissemination of hate speech to be excused by a sincerely held belief would, in effect, provide an absolute defence and would gut the prohibition of effectiveness.

This kind of extreme judicial activism towards suppression of expression, in the face of an international covenant ratified by the home state, typically occurs in cases where the issue before the court is one that opposes an unpopular minority defendant (here a religious anti-gay fanatical pamphleteer) against a strident majority view that enshrines "political correctness". In Hill v. Church of Scientology (above, and Endnotes [5] and [9]), the defendant was an unpopular religious group widely considered a "sect", directly attacked by the Crown whose legal costs were paid by the state. The action lead to the largest award of unproven "damages" ever seen, and to the above-described sophistic findings about the common law of defamation.

Occasionally, the alignment of societal-mobbing circumstances works the other way. In WIC Radio v. Simpson [14], the plaintiff was in the minority as a public critic of gay-rights content in school curricula and the defendant was a radio station and its talk-show host who had compared the plaintiff to Hitler and stated that she was personally inclined towards violent methods in advancing her campaign, none of which had any demonstrable basis in fact. In that case, Canada's supreme court made the strongest defence of the right to free speech in its post-Charter history, which gave a needed boost to the so-called "fair comment" defence in the common law of defamation, while of course preserving the above-described absurd tenets of this common law.

The Aggressive Assault of Criminalizing "Hate Speech"

The situation is even more alarming when it comes to "hate speech crime". "Free and democratic societies" such as those in Canada, France, and Germany, have "hate speech" instruments in their criminal codes. Here sophistry is barely needed. The state need only prescribe which utterances are criminal and decide which targets will be prosecuted.

"Hate speech crimes" are remarkable "crimes", in that there are no identified victims and no proven harm. Those charged can be sentences to jail, the ultimate suppression of freedom (barring execution), without the prosecutor being required to prove harm or intent to do harm or that there was a single actual victim.

The unusual features of these criminal codes do not appear to ruffle the cognitive serenity of the managers of law and order. Judges are bothered by the victimless nature of these extraordinary "crimes" as much as they are vigilant regarding the remarkable statistical coincidence that every time a frail victim of police brutality is beat to a pulp the police file charges of "assault" by the victim, which are duly prosecuted by the Crown. Smart-phone cameras and web-postings are making such a judicial blind spot more and more difficult to maintain. But with "hate crimes" the prosecutors need only find sufficiently unpopular targets to make burn-at-the-stake examples that serve the state propaganda for war or whatever campaign of international exploitation.

"Hate crime" codes are intrinsically political, and are a direct affront against human rights. In Canada, a "hate crime" can only be prosecuted with the explicit and statutory permission of the government (Attorney General) [15].

The criminal-code excesses that are increasingly present in Canada were foreseen by international law, thanks to excesses observed in "less democratic" states. For example [16]:

States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising”, “glorifying”, or “justifying” terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression.

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.116 The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20. 

The modern practice in Canada, France, and Germany towards explicitly making so-called "holocaust denial" a crime punishable by incarceration is a shocking testament to stupidity and to a crass special-interest fetish tied to geopolitical projects. It appears to be too much to ask that law makers actually read the unassailable academic work of Professor Norman Finkelstein on the question of the exploitation of the Nazi holocaust by powerful special interests [17], which was endorsed by the world's preeminent scholar of the Nazi holocaust, Professor Raul Hilberg [18], before the said law makers vote for such embarrassingly stupid laws. 

If Canada cared about historical genocides, it could respect its treaty obligations and pay reparations arising from its own most-efficient genocide of native peoples, the persistent consequences of which are repeatedly documented in United Nations reports. Likewise, France could pay due reparations to Haiti, for a start. All of this can be done without violating free expression rights. Instead, these "free and democratic societies" pass criminal codes that would, on their letter, put both Norman Finkelstein and Raul Hilberg (if he was not already dead) in jail for, among other things, publicly contradicting or criticizing the dogma of the "6 million deaths" figure. Unbelievable. You could not make this up.

Freedom Is Better

All of these legal instruments of intimidation against free expression (political correctness codes, defamation law, and hate-speech criminal codes) represent massive systemic repression against individuals, both directly and psychologically. The resulting harm to human development, the resulting quashing of societal creativity, and the resulting damage to the human spirit are impossible to imagine qualitatively, let alone gauge in magnitude. As a result of the overall regime of thought control, codified by these legal instruments against free expression, we are individually stunted and made capable of participating in horrendous crimes of state, including hugely asymmetric wars of aggression and wholesale destruction of distant nations.

The opposite is liberty. In an actual free society, expressed ideas -- no matter how insulting or insensitive or perceived-as-threatening to our values and identities -- are debated, ignored, developed, forgotten, recorded, reacted to, rejected, embraced, or whatever, but expression itself is never suppressed at the source; because the source is a human being, and one's emotional reaction belongs to the person having that reaction, who in turn also has a right to freedom of speech.

For example, evolution-theory is threatening to the identity and beliefs of many people. Therefore, should it be criminalized? Likewise, creationism is threatening to the beliefs and world views of many people. Therefore, should it be criminalized, suppressed with fines, or not allowed in schools? Homosexuality is threatening to the beliefs and identities of many people. Therefore, should expression about homosexuality be banned? Should the gay reality of society be celebrated and taught in schools, or should it be forbidden talk in the classroom?

If what is taught in school is received uncritically by children, then the problem is not what is taught, but rather school and parents themselves. In a free society, children and adults are not so gullible because they constantly practice speech and are subjected to different opinions, and therefore think for themselves about things that matter to them. In a free society, children bring much of the curriculum with them into the classroom, and parents are allowed into that sacred place. Fights over the content of the indoctrination material, whether the material is from the dominant paradigms or from opposing paradigms, are largely fights over the kind of zombie one hopes to create.

The thinking person is not afraid of expressed opinions and does not waste time arguing about form rather than meaning. The independent thinker does not need others to be gagged and punished for their opinions, or for the manner in which those opinions are expressed. The listener's loss of interest and the loss of engagement are punishments enough for the communicator, in a healthy society.

The state instruments of suppression of speech erode human relations, impoverish the human experience, and deprive us of individual influence and political engagement. We have a natural right to speak and to hear others speak. No entity has a legitimate right to silence individuals. The damage done by the legal instruments of suppression of speech is immeasurable. 


Endnotes

[a] See: Rancourt, Denis G., Hierarchy and Free Expression in the Fight Against Racism, Stairway Press, 2013.

[1] There is a broad scientific and sociological research literature on the established fact that humans are primates that establish and maintain societal dominance hierarchies. For example, in the area of medical research, stress from the dominance hierarchy is a dominant determinant of individual health, see the review: Sapolsky, Robert M., The Influence of Social Hierarchy on Primate Health, Science 29 April 2005: Vol. 308 no. 5722 p. 648-652, DOI: 10.1126/science.1106477

[2] International Covenant on Civil and Political Rights, Article 19(1); and General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, paragraphs 9 and 10

[3] For example, many rulings give lip service to General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, at paragraph 2 (emphasis added)

[4] See: Schmidt, Jeff, Disciplined Minds: A critical look at salaried professionals and the soul-battering system that shapes their lives, Rowman & Littlefield Publishers, 2001

[5] In Canada, after the Canadian Charter of Rights and Freedoms was introduced, the Supreme Court found it wise to opine "In conclusion, in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it.": Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC), paragraph 141, which has had the regressive effect of essentially closing that door.

[6] Ontario Civil Liberties Association, OCLA position paper on Bill 83: The tort of defamation must be abolished in Ontario, January 2014, http://ocla.ca/our-work/reports/report-bill-83/

[7] Ibid., at endnote-2: "Bayer proposes that the plaintiff should be required to prove that the words complained of are false, did indeed cause damage to reputation, and that the defendant acted with actual malice or negligence: Carolin Anne Bayer, Re-thinking the common law of defamation: Striking a new balance between freedom of expression and the protection of the individual’s reputation, thesis, Master of Laws, University of British Columbia, 2001. See also: Hilary Young, “But names don’t necessarily hurt me: Considering the effect of disparaging statements on reputation”, Queen’s Law Journal, 37:1, 2011."

[8] Ibid., in the body of the report

[9] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC), at paragraph 177

[10] McCormick, Peter J., The End of the Charter Revolution, University of Toronto Press, 2015, pages 155-158

[11] International Covenant on Civil and Political Rights, Article 19(3); and General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, paragraphs 27, and 33 to 36

[12] Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467, 2013 SCC 11 (CanLII), at paragraph 1

[13] Ibid., paragraphs 139 to 143

[14] WIC Radio Ltd. v. Simpson, [2008] 2 SCR 420, 2008 SCC 40 (CanLII)

[15] See, for example, one of the efforts of the Ontario Civil Liberties Association: September 24, 2014, Letter to the Attorney general of BC; and OCLA campaign page.

[16] General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, at paragraph 46, and paragraph 49

[17] Finkelstein, Norman, The Holocaust Industry, Verso, 2003 (Second edition)

[18] "Raul Hilberg - Historian prepared to risk his career to expose the Holocaust", The Guardian, September 25, 2007; "Raul Hilberg, 81; scholar was an authority on the Holocaust", Los Angeles Times, August 7, 2007


The author's own difficult adventure with the legal system of language control is described, in part, here: Rogue Courts in Canada Trample Self-Represented Litigants

Dr. Denis G. Rancourt is a former tenured and Full Professor of physics at the University of Ottawa, Canada. He is known for his applications of physics education research (TVO Interview). He has published over 100 articles in leading scientific journals, and has written several social commentary essays. He is the author of the book Hierarchy and Free Expression in the Fight Against Racism. While he was at the University of Ottawa, he supported student activism and opposed the influence of the Israel lobby on that institution, which fired him for a false pretext in 2009: LINK.