The limits of free speech

I've been asked to clarify whether or not I believe there ought to be any limits on free speech. I've done so several times before, and I'm happy to do it again. Of course there ought to be.

For example, I support the Criminal Code prohibitions against uttering death threats; fraud; forgery; engaging in a conspiracy to commit a crime; incitement to riot. I'm against the criminalization of blasphemy, which remains on the books but has fallen into disuse. I'm against the so-called "hate speech" provisions of the criminal code, the ones that were used to persecute David Ahenakew.

I also don't think that defamation ought to be a criminal offence, though it is. It belongs exclusively in civil law, as a tort to be prosecuted privately, at the expense and risk of private parties, not by the government. I believe in copyright law, trademarks and patents, each of which is a limitation on expression, and I believe in intellectual property in general, though I admit I'm as befuddled as anyone as to how those laws should adapt to the new technologies such as file sharing.

On defamation law, I've written recently about the new Supreme Court ruling, the most significant reform of the law in thirty years. It essentially ends the tort of defamation when the words complained about are a defendant's opinion, restricting defamation suits to cases where the defendant gets his facts wrong. A simple example of this difference would be: "he's a detestable idiot" vs. "he stole from the cash register". The first is an opinion; it's neither true nor false. The second is a fact; it's either true or false. The law now accepts almost any opinion as reasonable, including "outrageous" or "ridiculous" opinions. I tell prospective defamation plaintiffs that, unless their defamer has a material fact wrong, there's really no point in suing.

I am for those limits, and perhaps a few other, similar ones. But each of those limits has centuries of jurisprudence behind it, including centuries of defences. In defamation, for example, truth and fair comment are defences; not so in human rights "hate speech" cases. I've outlined the other important differences before, too.

Here are my comments on the limits of free speech, as told to my human rights interrogatrix, Shirlene McGovern, in January: