© 2001 Karen Selick
Free Speech, Yes--Trespassing, No
An edited version of this article first appeared in the April 16, 2001 issue of The National Post.  If you wish to reproduce this article,click here for copyright info.


 Free Speech, Yes--Trespassing, No

As the barricades go up in Quebec city in anticipation of the Summit of the Americas conference, many who fancy themselves champions of free speech have decried the security precautions as a denial of civil liberties. For instance, Murray Dobbin wrote recently in the Financial Post of the "criminalization of democratic dissent."   Quebec lawyer Marc Tremblay has gone to court seeking an injunction against the fence.

All too often, self-styled advocates of freedom of expression fail to draw a crucial distinction between the content of what is said and the resources that speakers can use in making themselves heard. The guarantees of free expression and free assembly that Canadians regard as cornerstones of our liberty were traditionally intended to protect content. No matter how unpopular your beliefs, or how far they diverged from or insulted the faction in power, you were guaranteed the right to speak them, and the right to do so in the company of others. 

But this was never supposed to give you the right to shout anti-free-trade slogans (or even pro-free-trade slogans) in my living room, on my front lawn, or in my office. In fact, you don’t have the right to shout anything on my property unless I’ve invited you there. If you do it against my express wishes, you’re trespassing. 

Similarly, your freedom of assembly doesn’t mean you can hold an audience captive and make them listen to you against their will. You can’t demand others’ time and energy as your right. If they won’t give it voluntarily, you’re out of luck.

In short, you should be free to express your opinions, however bizarre or vile they may be, so long as you use your own resources to do so, and don’t try to commandeer anybody else’s resources in the process.  

This may seem simple enough to understand, but in fact it has gone completely over the heads of those who think that free expression should come with a side order of free lunch. Their position is best encapsulated by the familiar catch-phrase: "Freedom of the press is guaranteed only to those who own one."  The implication is that those who don’t own one should be entitled to usurp other people’s resources through state coercion so that they too can have "free" speech.

It doesn’t help that Canada’s highest legal authority, the Supreme Court of Canada, has repeatedly come down on the wrong side of both branches of the issue. In decisions such as R. v. Keegstra, Canada (Human Rights Commission) v. Taylor and Ross v. New Brunswick School District No. 15, the court gave its seal of approval to laws which abrogate Charter-guaranteed freedom of expression. All three cases clearly involved the content of speech—specifically, anti-Semitic propaganda. While utterances of this kind should be thoroughly repugnant to every decent person, they are precisely the kind of thing the free speech guarantee is designed to protect. The whole point of the guarantee is to prevent us from unwittingly transforming ourselves into the repressive society that these repulsive speakers advocate. If we abandon our principles so readily in the face of every odious challenge that comes along, we hand a victory in principle to the fascists and neo-Nazis. We’ve endorsed the right of those in power to repress speech—the only task remaining for the totalitarians is to gain hold of the reins of power. 

On the resource branch of the issue, the Supreme Court has also muddied the waters, holding that a government-owned airport violated freedom of speech when it prohibited all advertising and soliciting on its premises, regardless of content. In effect, the court created a right to use government property for the purpose of expressing oneself. Justice L’Heureux-Dube even endorsed the need for the state to subsidize citizens’ self-expression, saying: "If members of the public had no right whatsoever to distribute leaflets or engage in other expressive activity on government-owned property…only those with enough wealth to own land, or mass media facilities…would be able to engage in free expression."

This, of course, is manifestly untrue. Those lacking the wealth to own land can (and generally do) rent some at a fraction of the cost. They can then freely express their opinions through meetings or signs on their leased premises. In fact, the People’s Summit scheduled to occur in Quebec the same week as the Summit of the Americas is a perfect example. 

Furthermore, the opinion page of this newspaper demonstrates daily that the owners of mass media facilities are quite prepared to publish viewpoints from either rich or poor, left or right, provided that contributors can make cogent and interesting arguments. The greedy capitalist pigs just want to sell as many newspapers as possible. Diversity of opinion simply makes good business sense. And for the occasional mass-media owner who perversely remains biased, there are competitors willing to woo readers and advertisers with different opinions.

But back to Quebec. The claims of protest organizers that the demonstrations will be peaceful are unrealistically sanguine. Even if organizers wanted them to be, the excitement of Seattle, Prague and Washington will inevitably attract some elements who will simply be looking for an excuse to rumble. So when police block off the streets, it will have nothing to do with the content of the protesters’ message. After all, how much content is there in "Hey hey, ho ho, globalization’s gotta go?" In fact, the streets will be equally inaccessible to those wanting to protest in favour of free trade. (And yes, I actually know of a group of libertarian students who are planning to do just that—rather imprudently, in my opinion.) 

Access to Quebec streets really isn’t a free speech issue at all. It’s just another example of the age-old problem of who gets to control public property. Who owns the streets?  Nobody—and everybody. So who gets to decide what use will be made of them? Without private ownership, the answer is inevitably a political one. The government of the day decides. Supposedly, it represents the will of the majority. The protesters, in this case, don’t happen to be part of that majority. 

Can’t they recognize the irony? Their whole argument against free trade and globalization is based upon an unbounded confidence in the benevolence and wisdom of government. Government is supposed to be the knight in shining armour who will hold the power of evil multinational corporations in check. Government is the caring, sharing institution standing up for the poor and the downtrodden. Government is equality, social justice, and brotherly love. Doesn’t it give them even a moment’s pause when they see their beloved government turning on them like this?  Can it have escaped their notice that their reasoned arguments against globalization—assuming they have any--will get better play in this capitalist pig newspaper than on the people’s streets of Quebec?

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July 31, 2001