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Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality

Published online by Cambridge University Press:  20 July 2015

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This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.

After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2013

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Many thanks to Larry Alexander, Daphne Barak-Erez, Corey Brettschneider, Susan Brison, Andrew Geddis, Dan Meagher, Margot Young, Kent Roach, Adrienne Stone, Luc Tremblay, and anonymous referees for very helpful comments and conversations. This article also benefitted from comments by participants at the 2011 Freedom of Speech Workshop at Melbourne Law School, the 2012 Law and Society Association Annual Meeting, and the 2012 Beetz-Laskin Colloquium at the Faculty of Law, University of Montreal. I am also grateful to Richard Bronaugh and the staff at the Canadian Journal of Law and Jurisprudence for very helpful editorial suggestions.

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17. Ibid at 15.

18. Fiss, Owen M, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder: Westview Press, 1996) at 5 Google Scholar [Fiss, Liberalism].

19. Fiss, Irony, supra note 5 at 15-16.

20. Fiss, Liberalism, supra note 18 at 4-5.

21. Fiss, Irony, supra note 5 at 16. Fiss argues that there are two objectives behind the regulation of campaign finance. The first is to put the less affluent on an equal footnoting with the wealthy, and the second is to minimize the effect of this disparity on the public discourse. Fiss, Liberalism, supra note 18 at 6.

22. Fiss, Irony, supra note 5 at 2.

23. Fiss, Liberalism, supra note 18 at 4.

24. Ibid at 5.

25. Dworkin, supra note 6 at 121.

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27. Ibid at 182.

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29. Ibid at 183.

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55. Ibid at 150.

56. Ibid at 666.

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59. Libman v Quebec (AG) [1997] 3 SCR 569 [Libman].

60. Ibid at para 1.

61. Ibid at para 14.

62. Ibid at paras 2, 27.

63. Ibid at para 18.

64. Ibid at paras 35, 85.

65. Ibid at para 28.

66. Ibid at para 29, quoting R v Keegstra, [1990] 3 SCR 697 at 763-64, Dickson CJC [emphasis in Libman removed].

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68. Libman, supra note 59 at 596.

69. Ibid at para 47.

70. Ibid.

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72. Although the Court had struck down expenditure limits for individuals in Buckley v Valeo, it did not touch the spending bans on corporations and unions. Citizens United, which was a non-profit corporation, produced a film entitled “Hillary: The Movie” that it wished to release as a “video on demand” through a digital cable provider. The release of this documentary would have violated BCRA section 203 which prevented corporations and unions from making independent expenditures from their general treasury funds to support or oppose a candidate. Citizens United wished to pay the cable fee from its general treasury funds. Although the documentary contained no express advocacy, the FEC found that the video was the functional equivalent of express advocacy.

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81. Ibid at 970.

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83. Citizens United, supra note 71 at 975-76.

84. Sullivan, supra note 82 at 145. Sullivan’s two categories—free speech as liberty and free speech as equality—are the same as the conventional “libertarian” and “egalitarian” approaches to free speech.

85. Ibid.

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95. Ibid at para 66.

96. Ibid at para 121.

97. Ibid at para 4.

98. Ibid at para 7.

99. Ibid at para 35.

100. Ibid at para 35, McLachlin CJ & Major J (dissenting).

101. Ibid at para 19.

102. Ibid at para 2.

103. R v Bryan, 2007 SCC 12 Google ScholarPubMed [Bryan].

104. Ibid at para 2.

105. Ibid at para 133.

106. Ibid at para 14.

107. Ibid at para 35.

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115. Ibid at 504.