Failure to Safeguard Free Speech Is Always a Problem

Recent crackdowns on free assembly are a reminder that the state will always finish first in deplatforming contests. Parts of Canada’s Online Harms Bill may be a massive overreach that chills speech at the worst time possible.

Pro-Palestine students and activists face police officers at Portland State University in Portland, Oregon, on May 2, 2024. (John Rudoff / AFP via Getty Images)

Campuses throughout the United States and Canada are witnessing a surge of free expression and assembly that is being met with repressive crackdowns. Largely driven by calls for justice in Gaza, for a lasting cease-fire, and for a free Palestine, students have occupied buildings, set up encampments, and held protests.

Responses to the action have varied in intensity, from state monitoring to snipers on rooftops and police violence against students and faculty. But all of it amounts to direct attacks on freedom of assembly and speech.

Free Speech Under Fire

Free speech is fundamental to democratic self-government. In the West, we tend to keep some distance between our democracy and our capacities to direct it, which is to say “self-government” is at best action at distance. Our politics are driven by representatives and state institutions rather than citizens. The former typically chart the course and navigate it. The latter vote every so often in an election.

From time to time, the many make themselves heard, often when they believe the state — or other power brokers — are condoning or actively participating in heinous violations of the principles of justice. Campus protests are a barometer for outrage. They are a signal that a line in the sand has been crossed. In recent decades, such protests have rallied against the Iraq War and against the bankers — and the 1 percent — and the politicians who shilled for them in the aftermath of the 2008 financial crisis.

Now, as before, free speech is under fire as citizens assert their right to assemble and demand something from their government. However, the tension between free expression and efforts to curb it extends beyond campus actions. In Ontario, the legislature banned the wearing of a keffiyeh, calling it “political.” Meta has been accused of silencing support for Palestine on its platforms. In a chilling instance of stifling free press, the Israeli cabinet recently shut down Al Jazeera’s operations in Israel. And lest anyone think the matter is merely a left-wing issue, in Brussels, local politicians attempted to shut down a radical right-wing conference with police, citing a threat to public safety, before a court ordered them to let the event proceed.

President Joe Biden is siding with the reactionary right and a slew of other politicians on curbing assembly and speech as police crack skulls and arrest protesters across the country. In Canada, one Liberal MP called for “university administrators, police,” and, as necessary, governments, “to act” against campus encampments. The state of free speech and assembly appears to be at a nadir — and these liberties need defenders to step up and advocate for broad and deep commitments to each.

The Online Harms Act

In Canada, the government is considering its Online Harms Act, Bill C-63, which is meant to deal with the sprawling problem of various threats that emerge from the internet, including hate speech, incitement to violence, counseling harm, nonconsensual sharing of intimate content, bullying children, and content that sexually victimizes minors.

Against the backdrop of ailing free-speech rights, the appearance of this bill, or some elements of it at least, is inauspicious, even as other bits are utterly essential. The bill may be seeking regulatory and criminal solutions for some of the most heinous and harmful behavior imaginable, but it is fraught with potential problems, as internet expert Michael Geist notes, since “the challenge will be to ensure that there is an appropriate balance between freedom of expression and safeguarding agains[t] such harms.”

Geist points out that the bill covers “obvious harms,” which it does. But he notes that “there are clearly risks that these definitions could chill some speech and a close examination of each definition will be needed.” While prohibitions and penalties will be more obvious and defensible in some cases (sharing intimate images without consent, for instance, or creating, storing, or sharing abusive material involving children), they will be far trickier in other instances (hate speech, or even incitement).

While existing Canadian jurisprudence addresses speech-related issues, Open Media, a digital-rights advocacy organization, warns that the tribunal process included in the bill for certain offenses “is not obligated to follow normal rules of evidence in court, or evaluate whether the offending speech was true.” There is also worry that Bill C-63 is too broad, too punitive with carceral and financial penalties, too far reaching, and too open to abuse.

The Canadian Civil Liberties Association is calling for “substantial amendments” to the bill, as it worries a provision on speech restriction in the bill “has the potential to censor strong opposition to political authorities.” Beverly McLachlin, former chief justice of the Supreme Court of Canada, suspects that the bill, if passed, will face court challenges.

In sum, it’s a critical moment for speech rights in the United States and Canada, and potentially a critical juncture in which free speech maximalists across the ideological divide have a reason to come together to protect fundamental rights necessary for democracy. As a rule, the state will clamp down on speech that threatens the status quo and elite hegemony, especially if that speech has the potential to sway public opinion and policy. However, while the state has supreme power to disperse and deplatform, it isn’t the only threat.

The Boomerang Risk

In recent years, voices from the liberal chattering class and the campus left have been far too ready and eager to silence critics and opponents, often foreclosing discussion and debate on spec and thus inviting the same treatment in return. At times, this effort to redact opinions and ideas that are deemed offensive has reached absurd heights, as with the school library that removed all materials published before 2008 in an effort to delete objectionable material from the prejudiced past.

Yes, certain speech crosses the line and becomes so odious that it genuinely oppresses, harms, and prevents others from taking part in social, economic, political, or cultural life. But these are extreme cases. While this speech is still protected under the First Amendment in the United States — unless it is a direct incitement to harm — hate speech is regulated in Canada.

There has been a concerning expansion of what counts as extreme, as the liberal-left has come to abandon a commitment to free speech. This shift risks boomeranging repercussions, as we witness now in legislature, on campuses, and in the streets. The net result is a more anemic democracy, a less engaging public sphere, and a weaker pro–free speech movement that ought to be secure and ecumenical.

Robust free speech protections also open space for debate, discussion, and deliberation that may change minds, but there’s more to speech than persuasion. When free speech is protected, the rights of individuals and groups to struggle for their conception of justice is protected, and their capacity to extract better policies and outcome from the state is bolstered. Speech isn’t merely about debate; it’s about connection, mobilization, communication of preferences, and the struggle for change among those who know what they want.

The impulse to shout down anyone who agrees with us or, worse, to crack down on them with force, compromises free speech and assembly for everyone. We should refrain from such behavior and instead prioritize safeguarding the rights of those with whom we disagree. This approach is not only principled but also strategically useful — we strive to uphold these rights for ourselves as much as our opponents. If there ever was a time to double down on a broad commitment to speech and assembly rights, it’s now.