For Me and Not Thee: Critiquing the Abstract Conception of Freedom of Expression Under the Charter
Date
2024-09-03
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Abstract
In this thesis, I argue through a queer, critical lens that the doctrine of freedom of expression under section 2(b) of the Charter and Rights and Freedoms rests on an abstract conception of freedom of expression that inadequately protects individual difference and marginalized expression. This theoretical, doctrinal thesis begins from the observation that the Charter freedom of expression doctrine is failing to respond to social and political issues of expression, stemming from the abstract “ideal of impartiality” that runs through liberal rights which creates problems for the regulatory and social responses to issues of expression, particularly in the digital age. The doctrine, ultimately, fails to articulate an adequate conception of freedom of expression that can protect individual difference and advance social justice. The doctrine abstracts expression and expressive freedom away from its social and emotional roots, and eventually, from social conditions and inevitable moral judgments. Resultingly, the doctrine lacks conceptions of the value of expression and threats to expressive freedom in conceiving expressive freedom as non-interference of the state. This leads to two key problems. First, the doctrine inadequately answers the question of scope and limits of protection: how can freedom of expression be fundamental to the individual and yet limited by social interests? Instead of confronting this problem, the doctrine abstracts it away. Second, stemming from this inadequacy, the broad scope of protection under section 2(b) overprotects expression (here, so-called ‘antiqueer’ expression) that undermines the expressive freedom of others, and the limits under section 1 allow for ideological and moral judgments to impinge on marginalized (here, queer) expression. I conclude by suggesting that we ought to consider expression in relation to the lived experiences of individuals and that oppression is a preferable basis for conceptualizing freedom of expression protection for the digital age.
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Keywords
freedom of expression, free speech, constitutional rights, queer theory, digital regulation, legal theory, constitutional law, Charter of Rights and Freedoms, section 2(b), freedom, polarization
Citation
Byram, J. (2024). For me and not thee: critiquing the abstract conception of freedom of expression under the Charter (Master's thesis, University of Calgary, Calgary, Canada). Retrieved from https://prism.ucalgary.ca.