Freedom of Expression in the United States — A Case Study in Implied Limitations on Textually Absolute Constitutional Rights
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Section 1 of the Canadian Charter of Rights and Freedoms has been characterized as an invitation to judicial timidity in enforcing the rights guaranteed by the Charter against majoritarian overreaching. It is certainly true that, taken literally, section 1 contains the seeds of the Charter's evisceration, since it is generally possible to construct a post hoc “reasonable” basis for limits on most exercises of constitutionally protected rights by controversial and politically unpopular persons. If every “reasonable” exercise of government authority may “limit” the exercise of a fundamental freedom, the Charter's protection will extend to only two categories of governmental action—action taken in bad faith and action which is irrational. One hardly requires an elaborate Charter of Rights and Freedoms to guard against bad faith or irrational governmental action. A short form constitution of no more than one or two sentences would more than suffice. If the American experience is any guide, however, section 1 need not reduce the Charter to a series of precatory admonitions. I believe that section 1 may—and should—be read as the candid recognition of a truth that, if not explicitly articulated in the text of the American Bill of Rights, is, nevertheless, widely acknowledged by courts and commentators - the fact that in a complex “free and democratic society”, virtually no individual right or freedom can be absolute. Rather than pronouncing absolute “rights”, I believe that a written guarantee of rights in a modern democracy describes a series of activities deemed fundamental to the society and, therefore, immune from governmental interference in the absence of a showing of extraordinary public necessity. My thesis is that most, perhaps all, “rights” as they are described in a modern democratic Charter are less expressions of absolute substantive immunity than the articulation of carefully constructed procedural protections that compel the political majority to persuade an insulated arbiter- usually a judge—that a genuine social necessity requires government action in derogation of the value. Properly applied, the net result of the process should be a dramatic societal deflection of error in favor of the protected value, without loss of the flexibility needed to maintain an ordered society. The degree of error deflection in favor of the fundamental value and the processes by which judges decide whether and how to evaluate government assertions of necessity are the nerve-ends of most constitutional litigation, even when the litigation purports to revolve about a so-called textually absolute right such as free speech in the American system. Thus, far from lamenting section 1 of the Canadian Charter, I applaud it as an invitation, not to judicial timidity, but to judicial candor; for, by focusing public attention on the process by which the inevitable existence of some “limits” on rights must be “justified” in a constitutional democracy, the Charter forces into the open a process that often occurs sub rosa in the United States. In both systems, the ultimate protection of free speech will depend far more on the wisdom and ingenuity of judges in deflecting error in favor of free speech by requiring the political majority to demonstrate a genuine necessity for regulation than on the assertion of a spurious "absolute" right. Section 1 merely urges Canadian judges to be more open in describing the process than their American colleagues. I propose to sketch the degree to which courts in the United States have been forced by the intrinsic complexity of modern democratic life to engraft precisely those “limits” described in section 1 of the Charter onto the textually absolute free speech guarantee contained in the First Amendment, often by the use of questionable thought processes. I believe that, if section 1 did not exist, Canadian judges, like their American counterparts, would have to invent it—probably in less palatable form. At first glance, the First Amendment to the United States Constitution is a poor candidate for any limitations at all. The Founders chose to use absolute language which appears to preclude any attempt to abridge speech. There is, however, an embarrassing weakness in any attempt to read the First Amendment literally—it purports to bind only the Congress - not the President; and it purports to apply only to the federal government—not the states. Indeed, for the first one hundred and thirty years, the Supreme Court read the First Amendment as placing restrictions solely on the federal government. With the advent of the “incorporation” theory, however, the Supreme Court has given the language of the First Amendment a non-literal reading that applies its strictures to state and local governments through the linguistic magic of the Due Process clause of the Fourteenth Amendment, which has been read as '”incorporating” most provisions of the Bill of Rights. Moreover, without benefit of even the dubious linguistic crutch provided by the Due Process clause, the modem Supreme Court has read the First Amendment as applying to the Executive as well as Legislative Branch. As an advocate of broad free speech protection, if asked to choose between a literal reading of the First Amendment that imposed an absolute ban on Congress, but provided no check against the Executive or the states, and a non-literal application of the clause that provided substantial—but not absolute—protection against all levels and branches of government, I would unhesitatingly choose the latter.
Source Publication
The Limitation of Human Rights in Comparative Constitutional Law = La limitation des droits de l'homme en droit constitutionnel comparé
Source Editors/Authors
Armand de Mestral, Suzanne Birks, Michael Bothe, Irwin Cotler, Dennis Klinck, André Morel
Publication Date
1986
Recommended Citation
Neuborne, Burt, "Freedom of Expression in the United States — A Case Study in Implied Limitations on Textually Absolute Constitutional Rights" (1986). Faculty Chapters. 1362.
https://gretchen.law.nyu.edu/fac-chapt/1362
