Can the Supreme Court of Canada get it right on free speech?

The United States Supreme Court ruled last week that the First Amendment of the U.S. Constitution protects a band’s right to trademark an “offensive” name. It was a victory for Asian-American dance-rockers The Slants, who meant their name to be a progressive provocation rather than a disparaging slur (although the word has been used to negatively stereotype Asians).

But does the group’s intent even matter? The U.S. Supreme Court struck down the entire federal law that prohibited registering trademarks that could be deemed disparaging.

The court’s unanimous decision was not predicated on the goodwill behind The Slants’ choice of moniker. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful,” wrote Justice Samuel Alito, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” The justices didn’t all agree on the exact reasoning for striking down the law. But they all agreed the law violated Americans’ right to express themselves, which includes the freedom to say negative or disagreeable things.

As a Canadian I’m envious of the ruling. This country’s free speech jurisprudence explicitly condemns and prohibits “hate speech,” deeming it not only insidious, but also valueless. Our Charter of Rights and Freedoms does protect our right to free expression. That’s better than nothing. But under the Charter’s own terms, the government can violate that right as often as it likes, so long as the violations are considered justifiable in a free and democratic society. The Supreme Court of Canada has already established that banning speech that tends to expose people or groups to hatred is perfectly justifiable, even if what is said is completely factually accurate, and regardless of the speaker’s intent.

Which raises the question of whether The Slants could trademark their name in Canada. Here, there is a prohibition on adopting a trademark that consists of “any scandalous, obscene or immoral word or device.” It’s not a provision the courts have ruled on very much. They’ve given a thumbs-up to “MISS NUDE UNIVERSE” (the court declared nude to be a “perfectly acceptable adjective.”) We’re not sure what they’d say about the mark “Lucky Bastard” or “Lucky Bastard Vodka.” Canada’s Intellectual Property Office has vetoed both. It contends they’d offend religious sensibilities, which seems even less compelling than refusing to register a trademark of a racial epithet.

Legally speaking, the recent trend in Canada has been to show more deference to efforts aimed at curbing intolerance towards racial or under-represented groups, than to protecting traditional religious ideas. It is difficult to imagine, for example, the current Canadian Supreme Court hearing a freedom of expression challenge of our trademark law and ruling that it’s justifiable to restrict a mark like “Lucky Bastard,” on the grounds it would be terribly demoralizing for those who view outof-wedlock births as a moral sin. But stranger things have happened. If I thought the Slants case itself were to make its way to our Supreme Court, the results would be harder to predict.

On the one hand, unlike the U.S. trademark law, the wording of our trademark restrictions suggests a focus on avoiding scandalized, “Oh dear!” reactions from a public with delicate sensibilities, rather than on preventing people or groups from being disparaged. You get the feeling the goal was to shelter society from being barraged with coarse language more than anything else. On the other hand, unlike the U.S. Supreme Court, which considers “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability ” objectionable but not the government’s business to censor, the Canadian Supreme Court thinks its job is to rid the country of every instance of such rot, no questions asked.

It would be very tempting for the Canadian Supreme Court to back the refusal to register a mark like “The Slants,” or better yet, a mark like “The Redskins,” based on potential prospective hurt to vulnerable groups (for example, by causing discrimination), even if the harm was unintended. The court used similar reasoning in its 2013 Whatcott decision, in which they emphasized that no actual proof of harm needed to be shown to cut off the speech.

Canadians are sometimes proud of how reasonable and middle-of-the-road our freedom of speech jurisprudence is: we recognize freedom of expression when what’s being said is mild or a touch bothersome, but if we think expression may marginalize a group, we step in and cut it off. The problem is that this cautious approach essentially comes down to allowing government to guess about how speech will affect others, which could easily lead to groups like The Slants (who are the others) getting caught up in the web of censorship.

As the U.S. Supreme Court said in The Slants case, “a speech burden based on audience reactions is simply government hostility and intervention in a different guise.” It’s too bad that’s exactly the speech burden all Canadians bear.