A bad day for the Supreme Court

Here’s how bad things have got at the Supreme Court: as the judges grappled with what to do about the law banning reporting election results from one part of the country to the other, they had to call in Rosalie Abella to be the voice of reason....

Alas, even Judge Abella’s powers of persuasion proved inadequate to prevent the court’s majority from upholding a law of uncertain purpose, dubious necessity and zero enforceability. That it also makes it a crime for citizens in a democracy to talk about how their fellow citizens have voted is perhaps an afterthought to the Court, which has a notably muddled record on freedom of speech issues, but it ought to be the starting point for any such discussion.

Any time the state presumes to punish you for the words that come out of your mouth, or the thoughts you commit to paper, whether in the end we decide it is justified or not, it ought at least to be recognized for what it is: a major intrusion on the freedom of the individual. Acts we are accustomed to regulating, though there is far too much of that for my tastes. But speech is supposed to be special, the first of the civil liberties, the one on which all others depend. 

What we say is so intimately related to what we think, and what we think so close to who we are, that it is not too much to say that to forbid someone from speaking is to destroy a little bit of that person. A democracy, moreover, made up as it is of a thinking, deliberative body of citizens, must be ever vigilant against any law that would diminish it in that capacity, including its ability to recognize itself as such. Every time we permit the state to tell us what we may or may not say or write or watch or read or hear, we are being taught to believe that we are too stupid to manage these things for ourselves. And the more times we absorb this lesson, the less we are able to avoid the question: Can a people so stupid really be trusted with self-government?

So it is always incumbent on those who would restrict our ability to speak freely to prove its necessity: to prove there is a problem, first of all, to which banning speech is the solution; to prove that there is not some less intrusive solution; to prove that the harm done to liberty is proportionate to the good thereby achieved; if nothing else, to prove that there is even some prospect of the ban being put into effect, except in the most haphazard and arbitrary ways. It is never up to the speaker to prove that his speech is valuable or beneficial to society, any more than it is up to the accused in a criminal trial to prove his innocence. 

In the present case we have a law that forbids the publication of election results from one part of the country while the polls are still open in another. The intent is to prevent citizens in the latter region from enjoying an advantage over those in the former, on the theory that the latter group might use the information thus obtained to guide their vote in some way not given to the former. Is there any evidence that anyone, in fact, does this? Or that anyone has suffered from it? Is there evidence on either score, sufficient to justify keeping the whole country under a blanket of ignorance? 

No, there is not. As Judge Abella wrote for the minority, the argument is “a combination of speculation and theory, unsubstantiated by cogent evidence.“ Indeed, it’s not clear how, even in theory, this information would be of any use, especially given the narrow timeframe open for its exploitation. Since the introduction of staggered voting hours -- a more measured response to the same problem, if it is one -- the voter in British Columbia, once apprised of the results from Ontario and Quebec, would have exactly one-half hour to act on this information before the polls close. Strategic voting calculations are hard enough, without that kind of pressure.

To the majority, this did not matter. What mattered was the principle of “information equality.” (The principle of freedom of speech ranked rather further down the list of their concerns.) But equality for whom? As with another law to come before the Court, prohibiting the publication of polls during elections -- on the theory that strategic voting should be forbidden, not just to some, but to all -- to prohibit something from being done in public does not mean it will not be done in private. 

Some people in western Canada will be prevented from knowing the results from the East: those who get their information exclusively from the radio, or television, or the tonier sorts of web sites. Countless others -- including, one presumes, those most bent on using this information -- can get it easily enough: by email, on any number of less reputable websites, from traditional broadcasters across the border, even (don’t tell anyone) by phone. 

The unenforceability of such a law, in the age of the internet, must be obvious to the most blinkered observer. But not, alas, to the Supreme Court of Canada.