Duhaime's Law Dictionary

Freedom of Expression Definition:

Freedom to communicate ideas without restraint, whether orally or in print or by other means of communication.

Related Terms: Expressive Association, First Amendment, Speech, Heckler's Veto, Political Speech

Freedom of expression is a derivative of a basic human right sometimes expressed in more limited language such as freedom of speech, freedom of thought or freedom of the press.

In Canada, the Charter of Rights and Freedoms covers all the bases by stating:

"Everyone has the ... fundamental ... of thought, belief, opinion and expression, including freedom of the press and other media of communication..."

In Edmonton Journal, Justice Cory of Canada's Supreme Court wrote:

"It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized."

In R v Zundel, Justice McLachlin wrote:

"The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false.

"The guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be; adapted to this context, it serves to preclude the majority's perception of truth or public interest from smothering the minority's perception. The view of the majority has no need of constitutional protection; it is tolerated in any event. Viewed thus, a law which forbids expression of a minority or false view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression."

In the United States, Justice Holmes wrote, in US v Schwimmer, that the defendant's defence of pacifism:

"... might excite popular prejudice but if there if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -  not free thought for those who agree with us - but freedom for the thought that we hate."

Ten years earlier, Justice Holmes had written this, in dissent:

"We should be eternally vigilant aganst attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immerdiate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."1

In Reference re Criminal Code, Justice Lamer wrote of Canada's Charter and the fundamental freedom of expression:

"... the Charter protects all content of expression irrespective of the meaning or message sought to be conveyed. The content of expression is conveyed through an infinite variety of forms including the written or spoken word, the arts and physical gestures or acts."

But the freedom is not absolute.

In R v Keegstra (1984), Justice Quigley of the Alberta Court of Queen's Bench wrote:

"Is it in accord with the acknowledgment that freedom is founded upon respect for moral and spiritual values that freedom of expression derived from such an acknowledgment should include the freedom to publicly and willfully promote hatred against a section of the Canadian public distinguished by colour, race, religion or ethnic origin?

"In my view, the only rational answer is No.... (F)reedom of expression ... does not mean an absolute freedom permitting an unbridged right of speech or expression."

In R v Keegstra (1988), Justice Kierans of the Alberta Court of Appeal added:

"(T)he constitutional guarantee of free expression does not, having regard to nature and purpose of that right properly understood, extend to all speech. For example, one can say that calculated falsehood is not protected.... Nothing about the idea of free speech justifies the protection of lies."

French: liberté d'expression.


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