We must not give in to the temptation to force people to say what we believe to be the right thing, writes Leonid Sirota.
By Leonid Sirota, October 27, 2021
Justice A.W. Germain has had it with the Pawlowski brothers, who preach defiance of mask mandates and rejection of the vaccines on the streets of Calgary ― and for good reason. They ignored public health orders during the flare-up of the COVID-19 pandemic in Alberta. They made a spectacle of breaking court orders. They harangued him at the hearing where he considered how they should be punished. You can understand why the judge was angry.
But you should still be troubled by the solution he devised. Henceforth, he ruled, whenever they speak out on pandemic-related matters, in real life or online, they must accompany their own thoughts with a disclaimer that they “may not be views held by the majority of medical experts in Alberta” who support various public health measures and vaccinations. Like a man waving a red flag ahead of a plodding steam vehicle, the Pawlowskis would alert the public to the madness in their methods.
Why is this disturbing? Why is compelled speech ― that is, statements we are required to make by law or, as in the case of the Pawlowskis, by a court order ― a big deal? After all, we file tax returns, fill out all manner of forms, and testify in court, whether we want it or not, because the law requires us. Often enough, it seems, compelling speech is just fine. And yet, we can easily think of cases where it is revolting: Henry VIII’s attempt to get Thomas More to recognize him as head of the Church in England, and execution for failure to obey, is but one notorious example.
There must be a dividing line between mundane and odious examples of compelled speech, although its exact location is a puzzle. And where there are such lines, there are also, always, controversies over whether a given case falls on one or the other side. Indeed, such controversies might be becoming more frequent. Consider some Canadian examples.
In the 1930s, Alberta’s Social Credit government wanted to force newspapers to publish government rebuttals to criticism―not unlike Justice Germain with the Pawloski brothers. One Supreme Court judge wrote that this was an undemocratic attempt to make “[t]he Social Credit doctrine” into “a sort of religious dogma of which a free and uncontrolled discussion is not permissible” by “reducing any opposition to silence or bring[ing] upon it ridicule and public contempt.” The majority of the court found the law unconstitutional on other grounds.
In the 1980s, the Supreme Court considered two cases in which labour arbitrators tried to require employers to say nice things to or about workers. In the first, the Court invalidated an order that the employer express support for the Canadian Labour Code, with a majority of judges agreeing that such demands were “totalitarian and … alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.” One must obey the law but need not support it.
In the second case, though, a majority of the Court upheld an order requiring an employer to provide a factual reference for a former employee, on the basis that requiring the statement of true facts, rather than opinions, was justifiable in the circumstances.
More recently, the Supreme Court also upheld a law mandating tobacco companies to print gruesome health warnings on cigarette packaging, while the Ontario Court of Appeal upheld the requirements that applicants for Canadian citizenship swear allegiance to the Queen and that doctors objecting to providing services such as abortions and assisted suicide refer patients to colleagues who would help them. By contrast, Ontario’s Superior Court recently struck down the government mandate that gas stations display (mis)information about the federal carbon tax.
There have also been lively disputes about compelled speech outside the courts. In the 1990s, the body now called the Law Society of Ontario made the oath of allegiance to the Queen a voluntary part of its licensing process, out of concern that compelling all new licensees to swear it was offensive, especially to some Aboriginal aspiring lawyers. By contrast, in 2016, the society demanded the lawyers whose practice it regulates develop a “statement of principles,” which was originally described as intended “to demonstrate a personal valuing of equality, diversity, and inclusion,” and threatened unspecified sanctions on those who refused. Recalcitrant lawyers voted in a new leadership group which abandoned this policy.
Meanwhile, the federal government demand that groups seeking to obtain funding for its Canada Summer Jobs program fill out an “attestation” of support for, notably, abortion rights. After much controversy (and a lawsuit), the attestation was considerably watered down.
Reading through the cases and the news stories, it is not always easy to make sense of the varying outcomes. How exactly are the courts, let alone elected officials, distinguishing between speech compulsions that are objectionable and those that are not? And how should they do this?
As I explain in more detail in a chapter in a forthcoming collection of essays on freedom of expression, in my view, the principled solution to the puzzle of compelled speech is to recognize the central importance of freedom of conscience and integrity in these disputes. In short, compelling speech is presumptively wrong when the compulsion interferes with its target’s conscience or integrity. By contrast, compelling speech is generally permissible if the compulsion only seeks the disclosure of true facts. Let me explain.
Conscience is the moral faculty that allows us to tell right from wrong and passes judgment on our actions, depending on whether they conform to its definitions. The freedom of conscience is the idea the state must not coerce an individual’s moral reasoning or deny its efficacy by ordering a person to disregard the commands of his or her conscience. The protection of freedom of conscience rests on the recognition that, in Lord Acton’s words, “[t]he knowledge of good and evil [is] not an exclusive and sublime prerogative assigned to states, or nations, or majorities.” It is within the capabilities, and responsibility, of each of us as individuals.
Individual conscience can, but need not, be guided by religious faith. It may be, as Abraham Lincoln famously said, “the right as God gives us to see the right.” But for a non-believer it may be something akin to an internal voice entitled to the same sort of deference and obedience as God would be. Religious or not, we all reason about right or wrong. We should, therefore, be able to understand the torment of a person who has acted against the commands of his or her conscience, and agree that, if at all possible, we should not put others into situations where they must suffer in this way.
Closely related to the idea of freedom of conscience is that of integrity, in the sense of having and acting on consistent principles that are genuinely one’s own. Integrity means not blindly accepting the views of others as authoritative; it frowns upon going along to get along; it requires us to follow through on our moral judgments, including when this is difficult or costly. And, even in those cases where we have formed no final view of our own, it forbids us from resigning our judgment to others, including “states, nations, and majorities.” Conscience allows us to form moral judgments. Integrity demands that we act accordingly.
Conscience and integrity are inherently subjective. Moral beliefs are personal; they are not to be dictated by state authorities. Similarly, what a person considers to be compatible with following his or her conscientious beliefs cannot be decided by others. Although there may exist widespread agreement on such matters, it remains the case that the right and the responsibility to judge belongs to each of us individually. It follows that it does not matter whether others, including the authorities, think that a person’s beliefs about right or wrong are misguided. Actions can be constrained to protect the rights of those whom they affect, but constraint must not serve to impose a belief that the state believes to be right, virtuous, or beneficial.
To repeat, compelled speech is mainly objectionable when the compulsion interferes with the freedom of conscience or the integrity of those whom it targets. It might make them proclaim as true something they believe to be morally objectionable ― for example, values favoured by the authorities but which they do not share, as in the case of the Canada Summer Jobs attestation. It might make them assert as truth something they believe to be factually wrong even though, as a dissenting judge pointed out in the case of the arbitrator dictating a reference letter to an employer, making a factual statement one does not personally believe to be true amounts to lying.
The compulsion might also make them speak under government dictation rather than for themselves, and so undermine their integrity, whether or not they have moral or factual objections to what they are made to say. This was the objection that a number of people, me included, had to the Law Society of Ontario’s Statement of Principles.
There are difficult cases where making people compromise their conscience and integrity seems like the only way to protect the rights of others. The case of doctors asking to assist patients in securing medical procedures to which they object on grounds of conscience may be one of them. But cases of true necessity are rare. Whatever Justice Germain may have thought, it is not necessary to force the Pawlowski brothers to propagate a message they believe to be wrong and to compel them to self-contradiction. There are many other ways in which accurate information about public health can be propagated.
Conversely, speech compulsions that aim at eliciting true facts in the possession of the person being compelled tend not to be objectionable as such. There is, usually, no moral impediment to telling the truth. This is why compelled testimony, tax returns, and requirements that sellers disclose all manner of information about their wares mostly strike us as unproblematic. But there are exceptions, such as the right not to testify against oneself or a spouse. There are also cases where the disclosure of true facts is used to cast a person or product in a misleading light, such as GMO labelling intended to suggest danger where none exists. And there are, of course, disclosure requirements that are simply far too onerous for the good they produce. This objection is a prudential, not a moral one, though this does not make it unimportant.
In light of cases such as the Law Society of Ontario’s “statement of principles,” the Ontario government’s carbon tax stickers and the federal government’s “attestation,” and Justice Germain’s order, it is easy to form the impression that attempts to compel speech are becoming more frequent in Canada. Perhaps it is no more than an impression. Yet one can see why it might be true. As political and moral polarization rise even as social media make it ever easier for us to become aware of our opponents’ views, or caricatured versions of their views, fear of contrary opinions is easy to come by. The temptation to ensure that what is seen as truth fills the public square is strong.
But we must not give in to the temptation to force people to say what we believe to be the right thing. It rarely works nearly as well as one imagines – just ask Henry VIII. It encourages one’s opponents, when they come to power, as they will, to resort to the same brutal tactics. Henry’s daughter Mary would have had something to say about that. But more importantly, it is simply wrong to coerce people into trampling over their conscience and speaking as if they are others’ instruments rather than men and women capable of their own thought, judgment, and speech. A free society recoils from visiting such indignity on its members. It is time we remembered this.
Leonid Sirota is a scholar of public law. From January 2022, he will be Associate Professor at the University of Reading. He is the creator of the Double Aspect blog.