La Oscura

The Literary Review of Canada recently published a review of my book The Life and Death of Freedom of Expression. While I am grateful for any attention given to my writing, the review says very little about the book, and what it does say is either misleading or wrong.

While the review does not engage with the book’s larger arguments, it seems to suggest that the book adopts a U.S. libertarian approach to the freedom. This is not something that has ever before been suggested about my writing on free expression. The book offers a social or relational account of the freedom, which I first put forward in the 1990s. I argue that freedom of expression is valuable because human agency and identity emerge in discourse — in the joint activity of creating meaning. Human reflection and judgment are dependent on socially created languages, which give shape to idea and feeling. We become individuals capable of thought and judgment when we join in conversation with others and participate in collective life. I further argue that recognition that individual agency and identity emerge in communicative interaction is crucial to understanding not only the value of expression but also its potential for harm. This does not sound like a libertarian account of the freedom.

Someone who reads the review might think, for example, that I am opposed to the restriction of hate speech. Yet, in one of the longer chapters, I argue that the restriction of hate speech is important and compatible with the free expression right. I do, however, suggest that, in the online world, traditional legal responses are inadequate to address the wide and rapid spread of hate speech: “The shift to social media as the principal platform for public engagement has added to the ways in which speech can be harmful, while at the same time undermining the effectiveness of traditional legal responses to harmful speech.”

The reviewer makes a number of points that are simply inaccurate. These may seem trivial, but they are unfortunately the only specific points the reviewer makes about the book. They illustrate the reviewer’s careless reading of it and of the case law. For example, the reviewer says that I am wrong when I say that the Supreme Court of Canada held that the provision in the Quebec sign law requiring that commercial signs include French was a justified restriction on the section 2(b) freedom of expression right. This is from the headnote of one of the SCC decisions I discuss: “The requirement of either joint or predominant use [of French] is justified under [section 1 of the Charter].”

The reviewer also says that I wrongly claim that the SCC has adopted a version of the U.S. public forum doctrine in access to public property cases, writing, “The Supreme Court of Canada rejected this doctrine in a case known as Commonwealth of Canada . . . though [Moon] suggests in his book that the court has adopted the public forum doctrine.” The reviewer, however, does not mention the leading case on the issue of access to government property, Montréal (City) [By-law] v 2952-1366 Québec Inc, from 2005, which is fully discussed in the book. In that case, Justice Beverley McLachlin, writing for the majority of the SCC, said that access to state-owned properties that have historically been open to the public or that function in a way that is compatible with open public expression will ordinarily be protected under section 2(b). This test, she said, provides a “preliminary screening process,” in which it is determined that some locations fall within, and others outside, the scope of section 2(b) protection, allowing people to “know where they can and cannot express themselves.” This looks to me a lot like the U.S. public forum doctrine. The book, of course, goes on to discuss the challenges raised by the adoption of such an approach.

I hope that some readers of the review will also read the book to see what it actually says.

Richard Moon is right to highlight the social and relational dimensions of free expression, which are central to his thinking, an issue that my review raises. However, Moon is wrong to attribute words and ideas to the review that it does not contain.

My review does not “suggest” that he supports libertarian views or opposes restrictions on hate speech. Moon’s role in the hate speech debates is mentioned, but that does not imply that he holds extreme views. Indeed, my review describes how extremists turned on Moon during those debates.

Nor do I say that Moon was “wrong” about the Supreme Court of Canada’s decision in the Ford case. But he did write, “The court found that the compulsion to use French was justified.” The court, though, decided that the provisions of Bill 101 that required the sole use of French infringed free expression and were “not justified under s. 1 of the Canadian Charter Rights and Freedoms.” By glossing over the court’s focus on the compulsion to use French alone and the resulting infringement of the right to use other languages, Moon misses an important nuance that is hardly “trivial,” at least for English‑speaking Quebecers.

Finally, while the review raises issues that, in my view, deserve more attention and fresh thinking than they have received to date, it is unfortunate that Moon overlooks positive comments about the book’s even-handed and careful approach and the wealth of information it offers.