Protecting Freedom of Expression: My Heritage Committee Appearance on the Chilling Effect of Antisemitism

Why taking action against hate enhances expression rather than detracting from it.

The Standing Committee on Canadian Heritage is in the midst of conducting a study on protecting freedom of expression that has opened the door to discussing a wide range of issues. I appeared as a witness before the committee yesterday and divided my opening remarks into two issues. First, I discussed the way digital policies (notably including Bills C-11, C-18, C-63, and S-210) all intersect with expression in either directly or indirectly, arguing that we haven’t always taken the protection of expression sufficiently seriously in the digital policy debate. Second, I focused on the challenge of when expression chills others expression,  using antisemitism as a deeply troubling example.

I will likely devote a future podcast to the full appearance and my exchanges with MPs, who wanted to learn more about both the speech implications of digital policy and some of the suggestions for addressing antisemitism. In the meantime, my opening comments are posted below in text with a video on the chilling effect of antisemitism. I discuss the myriad of concerns and identify steps that could be taken to mitigate against the harms, including clearly defined policies, such as the IHRA definition of antisemitism, active enforcement of campus policies and codes, principled implementation of institutional neutrality, leadership in speaking out against conduct that creates fear and chills speech, as well as time and place restrictions and bubble zone legislation to strike a much needed balance.

Appearance before the House of Commons Standing Committee on Canadian Heritage, November 18, 2024

Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear in a personal capacity representing only my own views.

I’d like to start by emphasizing that freedom of expression is rightly and widely recognized as foundational to robust, accountable, inclusive democracy. That said, there is always a balance to be struck. I’m sure we would all agree that there are limits where expression is viewed as so harmful such that it should be restricted or rendered unlawful. Obvious examples include child pornography, defamation, or terrorism related offences.

The difficulty does not lie with those kinds of cases. I’d like to focus on two cases that are much tougher: digital policy and the challenge of when expression chills others expression.

First, digital policy. Bills C-11, C-18, C-63, and S-210 all intersect with expression in either directly or indirectly.

The direct examples are Bill C-63 and Bill S-210. These bills by design have expression implications. Bill C-63 identifies seven harms that are defined as a kind of “content” but each is a form of expression. This expression causes harm – revenge porn, inciting terror or bullying for example. While I have some enforcement concerns, I think the bill identifies real harms and seeks to establish a balance in addressing them. More problematic are the Criminal Code and Human Rights Act provisions that are overbroad, may weaponize the human rights system, and have a chilling effect.

Bill S-210 is even more direct in limiting expression as it literally provides for federal court blocking orders of lawful content. And it envisions requiring Canadian Internet providers to do the blocking. This is a dangerous bill that should go back to the drawing board.

I think Bills C-11 and C-18 both have indirect effects on expression. In the case of Bill C-11, supporters were far too dismissive of the implications of regulating user content, with some going so far as to deny it was in the bill only to later issue a policy direction that confirmed its presence. Bill C-18 not only led to the blocking of news links, but it failed to recognize that linking to content is itself expression. The net effect has been to cause harm to news-related expression in Canada.

We need to do better when it comes to digital policy as we haven’t always taken the protection of expression sufficiently seriously in the digital policy debate.

Second, there is expression that chills other expression. This can occur where the expression includes harassment or strikes fear in some communities, invariably leading to a chill in their ability to express themselves. My own community – the Jewish community – is a case in point as the rise in antisemitism in a manner not seen in Canada in generations has sparked safety fears and chilled expression. No community has been the target of more hate crimes than ours.

On campuses, this manifests itself with students and faculty concealing their identity by hiding their religion, political beliefs, or fearing speaking out in class. I’m wearing a bring the hostages home pin today – a form of expression – but many would be reluctant to do so on our streets and campuses. Encampments, graffiti, vandalism, doxxing, online threats, the abandonment of institutional neutrality, and the exclusion of those who believe in zionism from classes or parts of campus have become too commonplace and have had a corrosive effect on those targeted and undermine their expression rights.

Universities, workplaces, and other communities have long recognized the harm of expression chilling other expression. It is why we have codes designed to ensure not just physical safety but also freedom from abusive or demeaning conduct that constitutes harassment and may limit the expression of others.

In a committee study focused on protecting freedom of expression, there are many things that can be done: ensuring we have clearly defined policies, such as the IHRA definition of antisemitism, active enforcement of campus policies and codes, principled implementation of institutional neutrality, and leadership in speaking out against conduct that creates fear and chills speech.

In our broader communities, time and place restrictions such as those included in the court ruling involving the encampment at the University of Toronto preserve the rights both of those to protest and those for whom the encampments created harms and chilled their expression. Similarly, bubble zone legislation to safeguard schools, community centres, and places of worship strike a much needed balance. 

The past year has served as a wakeup call for many. Taking action against hate enhances expression rather than detracting from it and we must all do our part in this fight.

Thank you for attention. I look forward to your questions.

Post originally appeared at https://www.michaelgeist.ca/2024/11/protecting-freedom-of-expression-my-heritage-committee-appearance-on-the-chilling-effect-of-antisemitism/

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