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The Hateful and the Obscene

The Hateful and the Obscene: Studies in the Limits of Free Expression

L. W. Sumner
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  • Book Info
    The Hateful and the Obscene
    Book Description:

    In a series of landmark decisions since 1990, Canadian courts have shaped a distinctive approach to the regulation of obscenity, hate literature, and child pornography. Missing from the debate, however, has been any attempt to determine whether the legal status quo can be justified by reference to a framework of moral/political principles.The Hateful and the Obsceneis intended to fill that gap.

    L.W. Sumner brings philosophical depth and theoretical rigour to some of the most important and difficult questions concerning free expression. Building on a framework set out by J.S. Mill ? that a legal restriction of expression is justified only when the expression in question is harmful to others and when the benefits of the restriction will exceed its costs ? Sumner shows how the Canadian courts have replicated Mill's framework in their interpretation of the Canadian Charter of Rights and Freedoms.

    The Hateful and the Obsceneis a compelling interpretation of freedom of expression that combines serious philosophical thought with a focus on Canadian law, thus maintaining the breadth to deal with both obscenity and hate literature.

    eISBN: 978-1-4426-8143-9
    Subjects: Philosophy

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-2)
    C.L. Ten
  4. Chapter 1 A Theory of Free Expression?
    (pp. 3-17)

    We all agree that the right to free expression has limits, but we do not agree on where those limits are to be drawn. Issues of the extent and boundaries of the right confront us every day, in the media, in the courts, in the classroom, in our workplaces, in our neighbourhoods. If our convictions on these issues are to reflect more than just the strength of our feelings, then it seems that we must follow C.L. Ten′s exhortation to ground them on ′firm principles′. But why not raise our sights even higher, by trying to construct (what we may...

  5. Chapter 2 Millʼs Framework
    (pp. 18-51)

    Liberals aiming to construct a theory of free expression have two methodologies from which to choose. Thefoundationalapproach involves appealing to some more comprehensive moral/political theory from which principles applicable to this particular issue may be derived. The background theory invoked may be broadly ethical (utilitarian or deontological or contractarian) or more specifically political (a theory of democracy, say, or of justice). Whatever the favoured theory, it is claimed to be capable of both justifying a right to free expression and defining the limits of that right. Most of the major figures in the liberal tradition have employed one...

  6. Chapter 3 The Balancing Act
    (pp. 52-87)

    Hate propaganda is a difficult issue for liberals because it seems to reveal a conflict between their two most cherished values. A liberal society prides itself on its acceptance, even celebration, of cultural pluralism and on its fostering of a climate of equal respect for members of minority communities. It therefore rejects all forms of discrimination on grounds such as race, ethnicity, national origin, religious affiliation, gender, age, disability, and sexual orientation. At the same time, commitment to freedom of expression requires liberals to tolerate the advocacy of opinions which they regard as abhorrent. Hate propaganda therefore threatens to expose...

  7. Chapter 4 The Myth of Community Standards
    (pp. 88-125)

    Whoever would prohibit obscenity must first define it. In Canada the statutory definition of obscenity picks out publications ′a dominant characteristic of which is the undue exploitation of sex′.¹ Ever since the adoption of this definition by Parliament in 1959, the Canadian courts have struggled with the question of when a publication′s ′exploitation′ of sex should be considered ′undue′. The focus of this chapter is not on the conclusions they have reached on this question but on the way they reached them — in particular, on the role that has been played in Canadian obscenity adjudication by the community standards...

  8. Chapter 5 In Harmʼs Way?
    (pp. 126-164)

    In two landmark decisions in the early 1990s the Supreme Court of Canada gave the legal landscape concerning hate speech and pornography a structure which remains intact today.¹ Unsurprisingly, given their subject matter, both decisions were highly controversial. InKeegstra(1990) the court was divided against itself by the narrowest of margins, with lengthy and thorough arguments on both sides of the question. InButler(1992), by contrast, the justices achieved unanimity, but the absence of internal dissent was amply compensated by vigorous external criticism.² In the decade or so that has elapsed since these decisions no social consensus on...

  9. Chapter 6 From Principle to Policy
    (pp. 165-204)

    This book began with the avowed aim of developing a principled framework - a theory of free expression - capable both of grounding expressive rights and of determining the limits to those rights. The preceding chapters have put in place all of the main ingredients of such a theory. Rights, I have argued, are valuable for the interests they protect and promote. Expressive rights are valuable because freedom of expression is intimately connected to two kinds of interests: some of our most basic interests as individuals and as citizens - recognition, self-respect, political participation, empowerment, and the like - and...

  10. Notes
    (pp. 205-246)
  11. Cases Cited
    (pp. 247-250)
  12. Works Cited
    (pp. 251-264)
  13. Index
    (pp. 265-275)