When someone says “it’s not about freedom of speech,” it’s definitely about freedom of speech

The Trudeau government may extend the fight against COVID-19 to limiting what you and I can say about it:

The federal government is considering introducing legislation to make it an offence to knowingly spread misinformation that could harm people, says Privy Council President Dominic LeBlanc.

LeBlanc told CBC News he is interested in British MP Damian Collins’s call for laws to punish those responsible for spreading dangerous misinformation online about the COVID-19 pandemic.

LeBlanc said he has discussed the matter already with other cabinet ministers, including Justice Minister David Lametti. If the government decides to follow through, he said, it could take a while to draft legislation.

“Legislatures and Parliaments are meeting scarcely because of the current context of the pandemic, so it’s not a quick solution, but it’s certainly something that we would be open [to] as a government,” said LeBlanc.

NDP MP Charlie Angus said he would support legislation to fight online misinformation.

“Extraordinary times require extraordinary measures and it is about protecting the public,” he said.

“This is not a question of freedom of speech. This is a question of people who are actually actively working to spread disinformation, whether it’s through troll bot farms, whether [it’s] state operators or whether it’s really conspiracy theorist cranks who seem to get their kicks out of creating havoc.”

Leonard Sirota, a Canadian now teaching constitutional law in New Zealand, describes the damage this would do long after the coronavirus pandemic has passed:

It is far from clear just what these restrictions are meant to accomplish. The CBC report quotes a spokesperson from the Communications Security Establishment, an intelligence agency, as warning about “cybercriminals and fraudsters” who “encourage victims to visit fake web sites, open email attachments and click on text message links” that purport to provide health information. But fraud, for example, is already a crime; there is no need for “extraordinary measures” to prohibit it, or for broadly defined bans on “misinformation”. The report also says that “Health Canada … is sending compliance letters to companies it finds making false or questionable claims about COVID-19”. It is not quite clear what sort of compliance is in question here, but presumably ― or at least hopefully ― it’s compliance with existing laws, perhaps ones having to do with advertising, or specifically advertising of health products. If so, then why is more legislation necessary?

For his part, the NDP MP tells, darkly, of “troll bot farms, state operators or … conspiracy theorist cranks who seem to get their kicks out of creating havoc”. State actors with troll bot farms at their disposal are unlikely to be deterred by Canadian legislation. At most, then, it will be targeting conspiracy theorists… and giving them more ammunition for believing the government is hiding things. Is there any evidence at all, actually, that “conspiracy theorist cranks” ― especially ones within the reach of Canadian laws, and not the one domiciled at 1600 Pennsylvania Ave., Washington, DC ― are having a real effect on Canada’s response to the plague?

And on the other side of the scales, there will be real costs to this proposed legislation. Even if it includes the mens rea requirements of knowledge, wilfulness, and malice ― which, if applied, would result in good faith conspiracist cranks being off the hook ― the law is likely to produce chilling effects. Worse, attempts to enforce it, even if they do not ultimately lead to convictions, will target the politically unpopular, or simply those who happen for one reason or another, to incur the displeasure of police services and prosecutors. …

[…]

Once the plague is over, it will be all too tempting to declare something else the next great public emergency, and to repurpose, instead of abolishing, the censorship mechanisms that allow government to silence those who question or undermine its response ― even if stupidly.

If there is there one thing we’ve learned from events of barely a year ago, it’s that clerks of the Privy Council are not always imbued with a great respect for constitutional propriety, or immune to the temptation to shill for their political masters. I would not trust one of them with the job of a Minister of Truth. Nor would I trust the public health authorities, which themselves at times seem quite confused about what the truth is. Indeed, this confusion only serves to underlie the fact that a government that is entitled to impose the truth on its subjects ― who can no longer be counted as citizens ― is also a government that is empowered to lie to them. No one, after, is allowed, and at length able, to tell the difference. The Canadian government needs to reverse course before it becomes a government of this sort.

Whenever I come across a political partisan promoting such restrictions on freedom of expression, I ask them if they’re prepared to trust these tools in the hands of the other team. You guys won’t be in power forever. When it’s your side being told what they can and can’t say, don’t whine about how you weren’t warned.

One thought on “When someone says “it’s not about freedom of speech,” it’s definitely about freedom of speech

  1. M says:

    Since existing laws already cover the matter and plenty of misinformation is still available from non-Canadian internet sources, the only effect of new laws would be to restrict Canadian freedom of speech. That feels very uncomfortable. People who choose to believe bad sources would still find them elsewhere, while those with something to say would be restricted, at least in their sense of freedom to speak if not more. As such essential freedoms seem to erode elsewhere, it’s all the more important for Canada to set a positive example.

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