Hey, is it accurate to say that Canadians have “constitutionally guaranteed rights to free speech”? I don’t think we do, at least not in the American sense, but this part of my school memory is completely hazy.
We call them “charter rights” rather than constitutional rights. The Charter of Rights and Freedoms is part of the Constitution Act of 1982, so it’s not far off the mark.
The Americans have “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
We have “Everyone has the followinbg fundamental freedoms . . . freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
Here is a link to the Charter:
http://lois.justice.gc.ca/en/charter/index.html
What you are looking for is at s. 2(b).
The most significant difference between the two nation’s versions is that in Canada our Charter Rights and Freedoms are always placed within context by the s.1 limitation clause: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that although everything that can even be remotely construed as expression is protected, any protection can be limited if reasonable. To see how reasonable restirction may be made, have a look at how the Oakes test has been used in SCC decisions on freedom of expression. What it comes down to is that freedom of expression is one of, if not the most, closely protected rights in Canada.
The Americans have no such limitation, which has resulted in American courts at one time or other having to find that certain expressions are not speech (falsehoods, insults, profanity, fighting words, obsenity, and commercial advertising). Over time, however, the American courts have pretty much backed away, and now for the most part protect all expression except obscenity.
At the same time, the American courts have also had to find that expressive conduct (refusal to salute the flag, burnig the flag, burning a draft card) is symbolic speech, and is thus protected.
Although the American decisions on freedom of speech are Byzantine, given their lack of a limiting provision, they are quite good at twisting the black letters to fit what society expects today.
Thus I would suggest that although on its face the Canadian protection of expression is broader than the American protection of speech, at the moment there is really no significant difference between the protections in either nation. In both nations freedom of expression is at the core of both societies, and is highly protected.
The US Bill of Rights may not have s.1, but the jurisprudence in the US has pretty well developed the same way as if it did. And that jurisprudence is no more or less byzantine than ours!!!