Free Speech the Modern Battlefield

I remember being wakened on the morning of January 23, 2012 by a radio announcer attributing words to Chief Justice Beverley McLachlin in a speech to students at Carleton University. It was stated “she wondered whether fairness and accuracy might be lost in the world of Facebook, Tweets, and instant messaging,” and the justice system must learn to deal with social media such as Twitter and Facebook. These remarks, I thought, must surely misrepresent her views and are probably taken out of context, as I have seen the media do so often with me.

So I decided to wait until I could see the media coverage in more detail. I finally obtained the Globe and Mail article of January 23 which revealed even more startling statements.

The title of the article read “Chief Justice muses about the impact of Twitter, Facebook on Canadian justice,” which caused me to observe on later examination of the articles that judges shouldn’t “muse.”

The premise that immediately leapt out at me was the assertion attributed to the Chief Justice that “the media in general are essential to building trust in the administration of Justice.” Really? I thought the duty of the 5th Estate was to criticize, hold accountable, and question the administration of justice. How much would have had an unjust result if the media viewed its job as building public trust? It was books critical of the justice system which finally reversed the Truscott decision. Too often the public trust built by the media in the justice system gives us a Milgaard case where 25 years too late, an innocent man is released from a false allegation, only by someone who writes and for good cause, undermines trust in the administration of justice when that administration is clearly wrong. But the clarity of the wrong is never clear at the beginning. For 25 years, the system said Truscott, Milgaard, Sophenow, Morin, and many others were guilty, when they really were not. Does the Chief Justice think these injustices only occur in first degree murder cases? Should there always be public trust in the administration of justice? What if the courts are wrong? Why shouldn’t the media point this out? Why should the judiciary be above criticism? I say the media need to criticize the administration of justice.

So why does the Chief Justice require media trust building? Because she is now the authority. Authority always demands protection for itself and it has the means to achieve it.

Chief Justice McLachlin also wondered whether fairness and accuracy might be lost in the world of Facebook, tweets, and instant messaging.

One might equally wonder whether people in conversation are fair and accurate, but should it matter? Where should regulation stop? Don’t we want people to discuss the justice system in their own words, or should they just agree? Should the justice system co-opt and regulate the media of modern discussion: the internet.

As one who is frequently misquoted, misrepresented, and vilified in the media, I would say the media are already unfair and inaccurate. She only has a different view because given her position of power and prestige; the media are always deferential, respectful, and solicitous. The mainstream media and the establishment go hand in hand. The mainstream media have the guile to slant the news to make the establishment look good if they know what’s good for them and they do.

Imagine the attitude of someone who says “Some bloggers will be professionals and academics providing thoughtful commentary and knowledge. Others will fall short of basic journalistic standards.” What a series of fallacies and false assumptions are inherent in these two statements. First, the fallacy of authority, as if academics and professionals are not biased and have no evil intent, but only objectively present analysis. Some do and some don’t. Academia and the professions are rife with political motives, intrigue, and self-serving cliques. I well remember the Milgaard case was seen as so exemplary it was in our evidence text in the late 1960s. Secondly, basic journalistic standards are a problematic assertion. What are they? My experience is that there aren’t any if you are unpopular, and if you are popular or powerful like the Chief Justice of Canada, you just have to mention those words and heads nod in agreement as they do to most of your statements.

Finally, how can “Twitter inform the public accurately or adequately in 140 characters or less the real gist of a complex constitutional decision?” Here to me we see a series of questionable assumptions. Firstly, what Supreme Court of Canada decision lately even hopes to inform the public, being usually in 140 paragraphs or pages, not characters? The various paragraphs, complex language, and conflicting dissents frequently leave lawyers in doubt. Older decisions of the court 60 years or more ago, before the era of cut and paste, were short, simple, and comprehensible, so where do long decisions lead us? To even longer commentary and confusion as well as an intellectually sterile, incomprehensible, technical language, which is better suited to occult societies than public understanding. The use of terms of art so typical of Supreme Court writing is specifically designed to exclude the public and build the professional monopoly of the elite. If the Supreme Court wants “real gist” (which seldom can be found) to be publicly understood, maybe they should write short, comprehensible, simple, and principled judgements rather than criticize much less ban Twitter.

It’s one thing for judges to decide to regulate their own behaviour, perhaps not musing in public, but it’s another for them to tell the public how they can communicate their observations and opinions about the justice system.

The regulation of online publicity is really impossible if you allow one person to communicate to another, because they will do so about the courts and justice as well. The hardest thing is to lose control of the messages, especially about yourself, as I have come to know from the selective, one-sided, seemingly uncorrectable Wikipedia biography of me. But any public figure knows the alternative is worse. To control what others say about you by force of law is impossible except for blatant false statements of fact, which seldom go unpunished. For the rest – fair comment – which usually isn’t fair, we have to grin and bear it. If we do, why should the courts be any better protected? Or does the Chief Justice really prefer an elite of professionals and academics to decide what we think?