Who's Afraid of the Big Bad Net?

Prof. Jeffrey Shallit

Department of Computer Science

University of Waterloo

Talk for the Computer Science Club, University of Waterloo, October 26, 1995.

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Most recent update: January 26 2000


Who's afraid of the big bad Net? IHAC Chairman David Johnston, Liberal MP Rey Pagtakhan (Winnipeg North), Reform MP Myron Thompson (Wild Rose, AB), Reform MP Keith Martin (Esquimault -- Juan de Fuca), the Simon Wiesenthal Centre, UW President James Downey, UW Provost Jim Kalbfleisch, and the UW Ethics Committee, that's who.

New media have always posed a threat to the established order; that's why the fight against censorship is a constant battle. In this talk, I'll discuss freedom of speech and the Internet: what "freedom of speech" means in this context, why it's a good thing, what the limits should be, and who exactly is opposed to it.


  1. What is Freedom of Speech?
  2. Freedom of Speech: The Canadian Experience
  3. Free Speech and the Internet
  4. Censorship at the University of Waterloo
  5. Unsolved Problems
	"Censorship is the strongest drive in human nature; sex is a
	weak second." -- Phil Kerby, quoted in Hentoff [25], p. 1.

1. What is Freedom of Speech?

I'd like to start by discussing what freedom of speech is and isn't. To me, part of the notion of freedom of speech is that the State or its agents have no authority to limit speech on any topic, provided that speech does not pose an imminent, tangible, compelling, and serious harm to others. This definition has its historical roots in the work of John Stuart Mill (1806-1873), who wrote:
	If all mankind minus one were of one opinion, and only one
	person were of the contrary opinion, mankind would be no more
	justified in silencing that one person than he, if he had the
	power, would be justified in silencing mankind.   [1]
Mill's appeal, of course, goes back even further -- at least to John Milton (1608-1674) and his Areopagitica (1644):
	Give me the liberty to know, to utter, and to argue freely
	according to conscience, above all liberties...

	Let her [Truth] and Falsehood grapple:  who ever knew Truth put
	to the worst, in a free and open encounter? [2]
Of course, there are limits to freedom of speech. (This truism is often trumpeted triumphantly by those in favour of censorship, but to me it is as evident as saying "there are limits to your budget".) I don't know of anyone that believes that freedom of speech protects the right of a Mafia boss to order his henchmen to kill someone. Here are just a few of the historical limits to freedom of speech that many countries have imposed:
  1. Libel and slander.
  2. Obscenity.
  3. National security.
  4. Invasion of privacy.
  5. False advertising.
  6. Age limits.
  7. Solicitation of murder.
  8. Fraud.
I like to think that reasonable people can disagree on where the lines should be drawn in each of these categories. I imagine that most people, for example, would agree that speech in categories (7) and (8) is not completely protected. So I am not a free speech absolutist; indeed, I've never met any absolutists, and I suspect that they exist only in the minds of those who wish to argue that the particular flavour of censorship they approve of is really not that bad after all.

But freedom of speech means even more to me. It is not simply a restraint on government -- it is also a societal attitude. It is an attitude that says, "We as a society are committed to free and open debate on all subjects. We do not simply defer to authority when it comes to establishing what is true." It is an attitude that the proper way to combat bad speech is not with censorship, but with more speech: with good speech, speech that educates and informs.

Now, I see public universities as having special places in an open society. After all, university professors are supposedly engaged in the search for truth, no matter where that search lies. Supposedly, originality in thought is valued, and ideas are not accepted merely because they are orthodox, but because they are backed by evidence. I see universities as places where all ideas, no matter how controversial, can be debated. Because of this special role, university communities must be open to hearing and debating the ideas of even the most repulsive people in our society. Yes, some will be offended. But the search for truth is guaranteed to offend people. As Yale University President Benno Schmidt said:

	A university, by reason of its special character, ought to be
	more devoted to freedom than the larger civil society, which
	has other goals that compete with the search for truth.  This
	search is the paramount end of the university, its very reason
	for existence.  Moreover, universities have a special capacity
	to answer obnoxious speech.  The communal character of the
	university, the fact that it is replete with opportunities for
	expression, the capacity of students, the faculty, deans and
	presidents to answer forcefully and promptly, all present
	manifold opportunities to counter offensive expression.  [26]
In fact, it is precisely when speech is offensive that it needs protection. It's not personally risky to defend innocuous speech; no one, to my knowledge, has tried to ban Winnie The Pooh or Heidi. But speech that offends or enrages -- that is precisely what we must defend. As US Supreme Court Justice Oliver Wendell Holmes said in 1925,
	Every idea is an incitement. [21]
And further:
	If there is any principle of the Constitution that more
	imperatively calls for attachment than any other it is the
	principle of free thought -- not free thought for those who
	agree with us but freedom for the thought that we hate.  [20]
Some have argued that the University should not appear to be endorsing hateful views. They say, for example, that banning offensive speech on campus is not a censorship issue; it's a matter of human rights. This brings me to a rule that I modestly call Shallit's First Law of Censorship:
	If someone says, "This isn't a censorship issue", you can be
	pretty damn sure it really is.
There's also a competing First Law of Censorship, Donham's First Law [24]:
	Most citizens are implacably opposed to censorship in any form
	-- except censorship of whatever they personally happen find
I've spoken about what freedom of speech means to me. Now, a word about what it doesn't mean. While it means I defend your right to speak, no matter how controversial your speech, it doesn't mean that I personally have to provide you with a forum. If I, as a private citizen, own a hall, I don't have to rent it out to neo-Nazis if I don't want to. If I, as a private citizen, own a bookstore, I don't have to stock books on Satanism if I don't want to. And if you don't like my policy, you're free to shop elsewhere or to organize boycotts of my business. As I've stated above, however, I see universities as essentially public institutions that, by their nature, have a special obligation to provide opportunities to hear speakers from a wide spectrum of opinion. This is not a popular view in Canada, but I think it is a realistic one. After all, universities are theoretically open to all, and large portions of their budgets come from public funds. If universities guarantee free speech only to uncontroversial speakers, the public is not being served.

Freedom of speech also doesn't mean that simply because you speak, your ideas necessarily merit being taken seriously. Some religious fundamentalists have appealed to "equal time" to get creationism taught along with evolution in biology classes [65]. (Oddly enough, they are usually opposed to the flat earth theory being taught in astronomy classes). While the argument is superficially appealing, the fallacy here is that freedom of speech only ensures that ideas are not prevented from having access to the marketplace of ideas; the principle doesn't guarantee the success of any particular idea in that marketplace.

Are there any philosophical justifications for freedom of speech? I know of at least three [4]; probably there are more.

First, there is the "marketplace" theory I've just alluded to: the search for truth is best advanced by free trade in ideas. To quote Holmes one more time:

	When men have realized that time has upset many fighting
	faiths, they may come to believe even more than they believe
	the very foundations of their own conduct that the ultimate
	good desired is better reached by free trade in ideas -- that
	the best test of truth is the power of the the thought to get
	itself accepted in the competition of the market ...  [5]
Free trade in ideas doesn't guarantee truth, but it does guarantee the integrity of the process by which truth is arrived at. [27]

Second, the "human dignity theory": freedom of speech is essential to human dignity. As US Justice Thurgood Marshall said,

	The First Amendment serves not only the needs of the polity but
	also those of the human spirit -- a spirit that demands
	self-expression. [6]
Third, the "democratic self-governance" theory: freedom of speech is the means of participation in the political process. It allows people to pursue political truth, it facilitates majority rule, it provides for stability by allowing the populace to blow off steam, and it sheds light on corruption and bad government.

Note that these three theories are not necessarily mutually exclusive.

Now let's look at the other side. The opposite of freedom of speech is censorship. Why is it undesirable? Here are four reasons, and I'm sure you can come up with many more.

First, censorship puts the authorities in the position of determining what is true. I don't know about you, but I don't want Mike Harris or, worse, Preston Manning telling me what the truth is. As US Supreme Court Justice Potter Stewart once remarked,

	Censorship reflects a society's lack of confidence in itself.
	It is a hallmark of an authoritarian regime ... [3]
Second, proscribed material is often difficult to specify precisely, and so it allows wide latitude to prosecutors to harass unpopular groups. An example of this is the harassment of gay and lesbian bookstores such as Glad Day in Toronto and Little Sister's in Vancouver. And groups that are in the majority today may prove to be unpopular tomorrow.

Third, in the case of speech by extremists that is nearly universally condemned, censorship publicizes and brings attention to people whose ravings would otherwise go unnoticed. An example of this is the publicity afforded to Ernst Zuendel and his claims that the Holocaust never happened. Repugnant? Surely so. But if he had not been prosecuted for "spreading false news", would his name be a household word in Canada? Doubtful.

Fourth, I want to suggest that censorship is anti-democratic. Everyone can be their own censor simply by refusing to patronize authors and artists whose work they disapprove of. As Charles Rembar noted,

	Literary censorship is an elitist notion:  obscenity is
	something from which the masses should be shielded.  We never
	hear a prosecutor or a condemning judge (and rarely a
	commentator) declare his moral fiber has been injured by the
	book in question.  It is always someone else's moral fiber for
	which anxiety is felt.  It is `they' who will be damaged [22].
Dramatic illustration of this can be found in a recent issue of Wired:
	[There is] a recent study of [Canadian] customs
	officers, those servants of decency responsible for halting
	perverse material that might tarnish the minds of the
	northernmost North Americans.  Commissioned by Canada's customs
	service, the study was conducted to ensure that these brave
	officials were not in any way affected by the material they
	handle on the job.  Conclusion: customs officers "are not
	haunted by deviant thoughts or desires" and do not "worry about
	what they might do sexually."  Apparently, Canadian customs
	officers are morally superior to normal Canadian citizens, who,
	we can only imagine, are easily corrupted by porn. [23]
Now some have argued that censorship is beneficial when it protects the interests of minority groups. What this side fails to admit, however, is that laws whose intent was to protect minorities through censorship have invariably later been used to harass minorities. For example, 1920's Germany had a "group libel" law that prevented subjecting a racial or religious group to ridicule. But to the consternation of those who had lobbied for such a law, it was then used to prosecute Jews who objected to their foul treatment under the Nazis. Similarly, feminists who lobbied for the Canadian Supreme Court to uphold Canada's obscenity law were then surprised to find that the law was used to harass lesbian bookstores [28].

Others have argued that free speech is an illusion, since powerful corporations can control public discourse. While I have some sympathy for this position, the truth is that corporations simply do not have the resources of government. Corporations cannot put you on trial for expressing heretical thoughts, and they cannot try you over and over again when they lose, as the state can in Canada. Corporations, unlike governments, cannot enforce criminal sanctions against those who express opinions they dislike [29]. Furthermore, history shows us that ideas, even when distributed only by leaflets passed out in the streets, are extremely powerful. Look at those who led the battle against segregation in the Southern US in the 1950's and 1960's. They were unarmed, and were opposed by government, corporations, and much of the Southern media. Despite this opposition, and because they had the right to express their opinion, their ideas eventually won the day.

2. Freedom of Speech: The Canadian Experience.

Now I'd like to turn to a brief summary of the history of freedom of speech in Canada. The story is a sad, even pathetic one, although in the 1990's there is some reason to be optimistic.

First, a brief legislative history. As you know, the Constitution Act (formerly called the B. N. A. act) of 1867 created the Dominion of Canada. Unfortunately, it contained no explicit guarantees of fundamental freedoms, such as freedom of expression. The Constitution Act offered a "Constitution similar in principle to that of the United Kingdom", but there were also no enumerated freedom of speech guarantees in England, except for members of Parliament (contained in the British Bill of Rights (1689)).

Furthermore, for most of its history the Canadian Supreme Court was not able to rule on questions about fundamental freedoms. Its scope was very restricted, largely dealing only with issues involving provincial vs. federal jurisdiction.

For individual rights, things got a little better with the passage of the Canadian Bill of Rights (1960). This bill stated:

	It is hereby recognized and declared that in Canada there have
	existed and shall continue to exist without discrimination by
	reason of race, national origin, colour, religion or sex, the
	following human rights and fundamental freedoms, namely,

	(a) the right of the individual to life, liberty, security of
	the person and enjoyment of property and the right not to be
	deprived thereof except by due process of law;

	(b) the right of the individual to equality before the law and
	the protection of the law;

	(c) freedom of religion;

	(d) freedom of speech;

	(e) freedom of assembly and of association; and

	(f) freedom of the press.
Unfortunately, the Bill of Rights was merely an act of Parliament and could be repealed at any time. Furthermore, the Canadian Supreme Court did not take to a rights-based jurisprudence. In fact, one of their first post-Bill of Rights actions was to uphold the Lord's Day Act (demanding Sunday closure of most businesses), reasoning that since in Canada there had been no historical right to sell goods on Sunday, it could not have possibly been a right guaranteed by the 1960 Bill of Rights. Mr. Justice Ritchie wrote
	It is to be noted at the outset that the Canadian Bill of
	Rights is not concerned with "human rights and fundamental
	freedoms" in any abstract sense, but rather with such "rights
	and freedoms" as they existed in Canada immediately before the
	statue was enacted ... [7]
Things got a little better with the passage of the Canada Act and the Charter of Rights and Freedoms in 1982. The Charter said in section 2 that
	2. Everyone has the following fundamental freedoms:

		(a) freedom of conscience and religion;

		(b) freedom of thought, belief, opinion and expression,
		including freedom of the press and other media of

		(c) freedom of peaceful assembly; and

		(d) freedom of association.
Unfortunately, what was given with one hand was taken away with the other, in that Section 1 these freedoms were tempered by
	1. The Canadian Charter of Rights and Freedoms guarantees the
	rights and freedoms set out in it subject only to such
	reasonable limits prescribed by law as can be demonstrably
	justified in a free and democratic society.
In other words, in Canada freedom of speech is balanced against other perceived interests of society. The only problem with this balancing act is that the societal good provided by freedom of speech is often so intangible that, in the words of American critic Nat Hentoff, free speech gets balanced "into the back of the bus". [24; 25, p. 151] As Parker Barss Donham has noted, the Supreme Court of Canada has spent hundreds of pages explaining why free speech has to defer to other competing interests, but how many pages have they spent explaining why free speech is an important societal good? [24, 38]

Even worse, in the "notwithstanding clause", the Charter gave provinces the ability to pass legislation that violated fundamental freedoms:

	33. (1) Parliament or the legislature of a province may
	expressly declare in an Act of Parliament or of the
	legislature, as the case may be, that the Act or a provision
	thereof shall operate notwithstanding a provision included in
	section 2 or sections 7 to 15 of this Charter.

	(2) An Act or a provision of an Act in respect of which a
	declaration made under this section is in effect shall have
	such operation as it would have but for the provision of this
	Charter referred to in the declaration.

	(3) A declaration made under subsection (1) shall cease to have
	effect five years after it comes into force or on such earlier
	date as may be specified in the declaration.

	(4) Parliament or the legislature of a province may re-enact a
	declaration made under subsection (1).

	(5) Subsection (3) applies in respect of a re-enactment made
	under subsection (4).
The notwithstanding clause was invoked most notably in the case of Quebec's language law.

That's a brief summary of the legal protections for free speech in Canada. Now let's examine how those protections have been applied in practice.

The story is, in a word, pathetic.

Here are just a few incidents from Canadian history. My guess is that these are the kinds of things you don't learn about in school.

The Padlock Law:

This infamous piece of legislation was passed in Quebec under quasi-fascist premier Duplessis (1937-1959). Under this law, anyone who used a building to "propagate communism or bolshevism" could have the premises padlocked for up to one year, without a trial or hearing before a judge. One could appeal the padlocking, but it was up to the accused to prove himself innocent of the crime of possessing communist literature. The term "communist" was not defined; one of Duplessis' cabinet ministers explained that this was because they wanted to apply the law to "the many who are Communists without knowing it". [47]

The padlock law was used by Duplessis and his henchmen to attack anyone that threatened the Catholic Church's domination of the Province, including Jehovah's Witnesses, Jews, and of course Communists. Among the buildings padlocked under this law was the Cultural Centre of the United Jewish People's Order and Maxim Gorky Club. A Quebec City family with small children were evicted and their premises padlocked. A man's car was seized, despite the fact that the law did not apply to automobiles.

Duplessis' reign did not end until 1959.

Press Censorship:

Canada Customs has long banned the importation of certain books and magazines, including:
	Honore de Balzac, Droll Stories (1914)
	D. H. Lawrence, Lady Chatterly's Lover (1930)
	James T. Farrell, Bernard Clare (1946)
	Norman Mailer, The Naked and the Dead (1949)
	William Faulkner, Sanctuary (1949)
More recently, Canada Customs has seized (and sometimes later released)
	Kathy Acker, Empire of the Senseless (1988)
	Salman Rushdie, The Satanic Verses (1989)
	Marguerite Duras, The Man Sitting in the Corridor (1993)
	Carol Adams, The Sexual Politics of Meat:
		A Feminist-Vegetarian Critical Theory (1994)
Looking at these titles, one is reminded of the saying of John Aikin (1747-1822):
	To choose a good book, look in an inquisitor's prohibited
In 1983, Canada Customs even seized a film on male masturbation addressed to the University of Manitoba medical school. [63]

Canada Customs' ability to censor books and magazines is currently the subject of a suit by Little Sister's bookstore in Vancouver, British Columbia.

Obscenity Law:

Section 163 of the Criminal Code states
	163. (1) Every one commits an offence who

	(a) makes, prints, publishes, distributes, circulates, or has
	in his possession for the purpose of publication, distribution
	or circulation any obscene written matter, picture, model,
	phonograph record or other thing whatever; or

	(b) makes prints, publishes, distributes, sells or has in his
	possession for the purposes of publication, distribution or
	circulation a crime comic.

	(2) Every one commits an offence who knowingly, without lawful
	justification or excuse,

	(a) sells, exposes to public view or has in his possession for
	such a purpose any obscene written matter, picture, model,
	phonograph record or other thing whatever;

	(b) publicly exhibits a disgusting object or an indecent show;

	(c) offers to sell, advertises or publishes an advertisement
	of, or has for sale or disposal, any means, instructions,
	medicine, drug or article intended or represented as a method
	of causing abortion or miscarriage; or

	(d) advertises or publishes an advertisement of any means,
	instructions, medicine, drug or article intended or represented
	as a method for restoring sexual virility or curing venereal
	diseases or diseases of the generative organs.

	(3) No person shall be convicted of an offence under this
	section if the public good was served by the acts that are
	alleged to constitute the offence and if the acts alleged did
	not extend beyond what served the public good.
The terms "crime comic" and "obscene" are defined as follows:
	(7) In this section, "crime comic" means a magazine, periodical
	or book that exclusively or substantially comprises matter
	depicting pictorially

	(a) the commission of crimes, real or fictitious; or

	(b) events connected with the commission of crimes, real or
	fictitious, whether occurring before or after the commission of
	the crime.

	(8) For the purposes of this Act, any publication a dominant
	characteristic of which is the undue exploitation of sex, or of
	sex and any one or more of the following subjects, namely,
	crime, horror, cruelty and violence, shall be deemed to be
It seems clear to me that Section 163 of the Criminal Code is in violation of the freedoms guaranteed by the Charter of Rights. But, and this is where the troubling nature of Section 1 of the Charter comes in, the obscenity provisions were upheld in the Butler decision [8] in February 1992. The rationale was, in my view, illogical. Although the Court agreed that the law violated s.2 of the Charter, it nevertheless called that violation acceptable under s.1, because "The prohibition of such materials was based on a belief that they had a detrimental impact on individuals exposed to them and consequently on society as a whole." [8, at 478] The fact that this "detrimental impact" has never been proven; and indeed that there is substantial evidence to the contrary, did not enter into the decision. Rather, it was held that "it is sufficient that Parliament had a reasonable basis" for so concluding [8, at 483].

It is worthwhile to note that "obscenity" is a legal term, and does not refer to 4-letter words, but rather to a particular class of pornography. Pornography and obscenity are not the same; pornography means any material that is intended to evoke an erotic response in its audience, while to be obscene under current Canadian law material must pass several tests, including being "degrading and dehumanizing".

Child Pornography:

Section 163.1 of the Criminal Code outlaws any "photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity..." and "any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act." This law, passed in the waning days of the Mulroney government, was recently used to harass artist Eli Langer, who had mounted an exhibit of his paintings at a Toronto gallery [54]. Langer's paintings depicted children having sex with adults and other children, but actual children were not used as models. While preventing sexual exploitation of children is certainly a reasonable and desirable social goal, how can it be furthered by prohibiting fictional depictions?

Charges against Langer himself were eventually dropped, but then Canadians were subjected to the embarrassing spectacle of the paintings themselves being put on trial. Eventually, on April 20, 1995, the paintings were acquitted under the "artistic merit" defence of 163.1 (6) (thus saving us the spectacle of the paintings being destroyed as books were in Bradbury's Fahrenheit 451), but Justice David McCombs of the Ontario Court (General Division) refused to overturn the child porn law as overly broad [55]. This decision sends a strong message to Canadian painters: feel free to paint children having sex, but make sure you do it well.

I think 163.1 must eventually be ruled unconstitutional. It is overly broad; it is not sufficiently restricted to the evil it is said to deal with; and supporters frankly admitted that its "written material" provisions were aimed at suppressing the newsletter of NAMBLA, an organization lobbying for changes in the age-of-consent laws [64, 69].

Libel Chill

As Canadian reporter Kimberley Noble reports, Canadian libel law is so draconian that it offers powerful corporations the ability to suppress embarrassing investigations. For example, the Reichmann family sued Toronto Life magazine over a feature about their lives during World War II. With the immense power and finances of corporate giant Olympia & York behind them, they forced her to spend three years in pretrial proceedings before her exhausted employer finally agreed to settle out of court [66].

CRTC Censorship of Radio and Television:

Another threat to freedom of speech is the Canadian Radio and Telecommunications Commission (CRTC). The CRTC enforces restrictions on speech that would be considered intolerable if they were applied to other media, illustrating the fallacy of "the media, not the message". As usual, the restrictions are often enforced against unpopular groups such as gays and lesbians. In 1993, Dalhousie University's radio station, CKDU, was censored by a CRTC ruling. Their "crime"? Broadcasting at noon on June 23, 1993, an episode about gay sexual practices during a special broadcast entitled "All Day, All Gay" [32]. However, when the CBC show "Ideas" broadcast a segment containing tape of a a woman masturbating to orgasm, no sanctions were imposed.

Drug Literature:

I said earlier that there is some reason for optimism. My optimism comes from two recent court decisions, one of which held that part of Section 462.2 of the Criminal Code was unconstitutional. Section 462.2 reads:
	462.2. Every one who knowingly imports into Canada, exports
	from Canada, manufactures, promotes or sells instruments or
	literature for illicit drug use is guilty of an offence and is
	liable on summary conviction

	(a) for a first offence, to a fine not exceeding one hundred
	thousand dollars or to imprisonment for a term not exceeding
	six months or to both; or

	(b) for a second or subsequent offence, to a fine not exceeding
	three hundred thousand dollars or to imprisonment for a term
	not exceeding one year or to both.
This law had been used to harass magazine stores and owners of "head" stores, including Shakedown Street, a store in downtown Kitchener [30]. However, in a courageous ruling on October 5, 1994, Judge Ellen MacDonald of Ontario Court (General Division) ruled that the part of the law dealing with literature violated s.2(b) of the Charter and that the violation was not justified under s.1 [31].

To conclude this all too brief review of the Canadian experience with freedom of expression [33], I would like to advance a thesis. I observe that since the Charter is at present only 13 years old, the vast majority of judges, lawyers, and the public at large is still uncomfortable with the new freedoms and guarantees for those freedoms. Older judges and lawyers are understandably discomfited by having the rules change out from under them. The public is still not accustomed to the new, more activist role of courts in determining the limits of government in a free society.

The eminent physicist Max Planck once remarked that

	An important scientific innovation rarely makes its way by
	gradually winning over and converting its opponents:  it rarely
	happens that Saul becomes Paul.  What does happen is that its
	opponents gradually die out and that the growing generation is
	familiarized with the idea from the beginning. [53]
My thesis is that a similar thing is happening with the changing legal perspective. It is the older, more established lawyers and judges who largely control the decisions about limits on state action, and these people were formally educated in a system where the Charter did not even exist. Until the old guard retires and is replaced by younger people who are comfortable with the changed legal landscape, we will continue to suffer the kind of state censorship that Eli Langer faced. As evidence for my thesis, I point out that it is the youngest member of the Canadian Supreme Court, Beverley McLachlin (b. 1943), who is often cited as being the firmest defender of free speech on the court, and that Judge Ellen MacDonald, who overturned the drug literature ban of Section 462.2 of the Criminal Code, was born in 1949.

3. Free Speech and the Internet.

And now we come to what you've been waiting for: what all this means in the context of the Internet, and in particular, the Internet at the University of Waterloo.

In my mind, the meaning of freedom of speech on the Internet is that the government may not restrict that speech unless that speech constitutes an immediate and serious harm to other people. As an example of what might be in this category, I would suggest that uttering death threats via e-mail might well be actionable under Section 423 of the criminal code.

With this exception only, I do not believe the government or its agents should restrict speech on the Internet. In particular, it may not restrict speech that is protected in other media, such as the print medium. And it may not engage in "prior restraint": censorship of speech before it occurs. The denial of prior restraint power is an old one: it appears in William Blackstone's (1723-1780) Commentaries on the Laws of England. Blackstone wrote that freedom of the press "consists in laying no previous restraints upon publication" [57].

Unfortunately, this view is not shared by many in power. Recently, the Information Highway Advisory Council issued a report. That council was chaired by McGill law professor David Johnston. Earlier this year, I sat in the audience at the Net 95 conference in Ottawa and heard David Johnston say:

	The corollary of access to content is control over content. [35]
I find this an absolutely chilling statement. I don't know about you, but I'm frightened by the idea that some government bureaucracy is going to decide for me what it is I can read on the Internet. And, no surprise, Johnston himself was responsible for one of the most egregious incidents of net censorship: the removal of alt.fan.karla-homolka at McGill University. During the speech Johnston defended his censorship of the newsgroup, and revealed that the decision to ban the group was made on the basis of less than a fifteen-minute discussion with the university's lawyer [35]. Now you might think that when a University is considering engaging in censorship, more than a fifteen-minute discussion would be called for, but at McGill University, you would be wrong.

The Internet has also attracted the attention of members of parliament. For example, Liberal MP Rey Pagtakhan introduced the following motion:

	That, in the opinion of this House, the government should move
	with speed to adopt legislative measures aimed at stopping the
	spread of hate propaganda via the electronic Information
	Highway while simultaneously preserving legitimate use of the
	freedom of speech and expression.
This motion, M-384, passed unanimously on May 10, 1995.

Reform MP Keith Martin stated that

	In my region of Vancouver Island, in the city of Victoria,
	something called DeathNet has occurred.  Specifically, it
	caters to teenagers and children.  It is a program on how to
	commit suicide.  It tells them how to do it with plastic bags,
	glue, knives, ropes, and chemicals.
Martin's statement is largely erroneous. DeathNet does not cater to teenagers or children; it is not a "program"; and it does not give explicit suicide instructions [60]. Oddly enough, Martin did not attack the book Final Exit 534], which does provide these instructions and which is available to "teenagers and children" in public libraries and bookstores all over Canada.

Reform MP Chuck Stahl stated that

	As the human body tolerates all sorts of germs, it also
	struggles against infections.  Our society is like an organism
	that plays host to all sorts of philosophies but it, too, has
	the right to guard against those which are most destructive.

	No one would claim that the government has no right to regulate
	the use of poisons in the marketplace, to pass laws to make
	sure that the poisons do not sit on a shelf alongside the food
	that we must purchase.  Likewise, there are poisonous thoughts
	that should never sit on the shelf beside harmless chat groups
	and information libraries on the Internet.
Stahl's argument is eerily similar to one a hundred years old:
	We are quarantined today by the state against all germs of
	disease that hurt our bodies.  But there are other germs... We
	call them words and ideas.  They enter through the eye and the
	ear and feed upon the brain-cells and destroy the very tissue
	of the immortal soul. [48]
On November 7, 1994, Reform MP Myron Thompson issued a press release where he railed about "highly pornographic, illegal stories available on Internet ... that are reaching our children", and said
	This smut must be stopped.  Without a doubt this material
	violates even this government's lenient standards of what is
	and is not allowed in Canada.  This is pornographic.  The
	current regulations state any depiction of sexual acts with
	children is not allowed.  This story depicts and details
	adult/child sexual acts.  It is in violation, why is it not
	stopped? [9]
Mr. Thompson confuses pornography with obscenity, and unfortunately exhibits a deficient understanding of the statement of the child pornography law. After a squib quoting my criticism of Mr. Thompson's hyperbolic press release appeared in a local magazine [46], his aide, Shannon Smith, called me. Smith exhibited little or no understanding of the law, and suggested that "the people who control the Internet" should deal with pornography. When told that the Internet was a distributed system, and there was no single person or group directly "in control", Smith merely repeated over and over that "experts who know have told me that there is a group controlling the Internet". With aides like this, is it any wonder that Mr. Thompson's press releases appear so ignorant and childish?

Here are some other examples of possible future government regulation of the Internet [36]. On November 16, 1994, the Commons Committee on Justice and Legal Affairs submitted to Parliament a report on "killer cards" that recommended broadening section 163 of the Criminal Code to handle "communication to exploit and glorify cruelty, horror and violence for no socially redeeming purpose." The report suggested these provisions should apply to "obscene" newsgroups, as well as music videos, video games, and comic books.

The Canadian Human Rights Commission has looked into the use of the Internet for the distribution of so-called "hate propaganda". (I'm still waiting for them to look into the use of paper for the use of printed hate propaganda, and investigate the pulp and paper mills which make it possible.) Solicitor General Herb Gray has suggested the possibility of international agreements to stop "hate literature" from coming from foreign sites. I think most people agree that such literature is despicable, but is the answer really to admit defeat and censor it? Is the answer to state that the racists are so powerful that their ideas cannot be countered by anti-racists? I don't think so. Holocaust deniers, for example, can be countered the way Ken McVay has done [61]. McVay has extensive computer archives with material to combat the Holocaust deniers, which he battles daily in alt.revisionism. True, the Internet provides a forum for racists. But it also provides a forum for anti-racist activists to spread their message. Unlike traditional media, everyone has a de facto right of reply on the Internet.

Earlier this year, after an anonymous prankster posed as Bob Rae and posted forged messages to some Usenet newsgroups, Mike Harris called Rae "road kill on the information highway". on the floor of the Ontario provincial parliament [59, 62]. Harris was eventually forced to apologize. But, after Harris was elected to take Bob Rae's place as Premier of Ontario, it was a case of the biter bit: another anonymous prankster forged a message from Harris and posted it to "ont.general", among other groups. How did Harris react? By removing his office's access to the Internet! [71]

There have also been calls for additional regulation from groups such as the Canadian Jewish Congress and the Simon Wiesenthal Centre. While I respect much of the work these groups do, it must be said that some of their proposed solutions are simply ludicrous and demonstrate unfamiliarity with the medium. For example, a recent press release from the Simon Wiesenthal Centre called for the Internet to be defined as "broadcasting" and should be regulated by the CRTC.

I think we are going to hear this call again and again from groups who can't stand the fact that other people are saying things on the Internet that they disagree with. But let's analyze it closely. Is the Internet really broadcasting, and if so, should it be regulated like broadcasting?

I think the answer is no, the Internet is not like conventional broadcasting at all. First, in conventional broadcasting, "they" talk and "we" listen. With the Internet, "we" have the opportunity to talk, and "they" -- well, if "they" don't listen, at least "we" still have the opportunity to talk. While the average citizen has little or no access to radio or television time, they do have ready access to the Internet in many locations, through commercial providers or freenets.

Second, the Internet is not like conventional broadcasting with respect to scarcity or pervasiveness. Currently, content control on a television can only be done through the broad means of changing the channel. However, the Internet, since it is software-based, allows blocking communications in the most flexible ways possible. Any individual can, for example, block all e-mail messages containing any of George Carlin's "seven dirty words", or block all Usenet messages containing the word "sex".

4. Censorship at the University of Waterloo

I believe that Canadian universities are quasi-public institutions, and, as such, the guarantee of freedom of expression applies to them. For example, many Canadian universities contain a guarantee of "freedom from institutional censorship" in their formal agreements with faculty, and it is conceivable that a violation of this agreement constitutes a violation of the Charter. However, this is still a untested legal theory in Canada, although there is evidence that at least one Supreme Court Justice would be open to the idea.

I'll come back to the legal basis for freedom of speech at universities in a moment. First, however, I'd like to look at the history of censorship at our own university, the University of Waterloo. Now I know that many do not react favourably when criticism is directed inwardly at the institution at which all of us work and study. But it is nevertheless true that the censorship story at Waterloo is a very sad one, and says more about the desire to avoid bad publicity than it says about the defense of intellectual freedom.

a. The censorship of rec.humor.funny.

In November 1988, Brad Templeton, a UW graduate and owner of a small software company called "Looking Glass Software" in Waterloo, was the moderator of a Usenet newsgroup called "rec.humor.funny". People from all over the world sent him jokes, he picked the best ones, and posted them to the newsgroup. One day he posted one of the funniest ethnic jokes I've ever heard, but I'm not going to repeat it here because I don't want to be called up before our local thought police, the University's own Ethics Committee. Suffice it to say that if one is really interested, the joke can be found in the December 7, 1988 issue of the Gazette [10]. Jonathan Richmond, an MIT graduate student, took offense at the joke and got in touch with the Kitchener-Waterloo Record, which ran a front-page headline entitled "UW computer system used to send racial jokes" [11].

The university issued a statement saying that the University "is fundamentally opposed, as a matter of principle and policy, to the propagation of material that is offensive and hateful in areas of sex, race, or religion." The statement did not define "offensive" or explain why the University Library contains The Protocols of the Elders of Zion, a vicious anti-Semitic forgery that apparently is illegal to import into Canada, or Arthur Butz's The Hoax of the Twentieth Century [12], which is in the same category. It also did not explain how the "offensive and hateful" joke could be published with impunity in the University's own publication, the Gazette [10].

Templeton was forced to guarantee to the UW administration that he would restrict his news feed to UW to avoid any "material which might be considered in bad taste, or offensive on racial, sexist or other discriminatory grounds."

It is worth noting that the Gazette did not carry a single letter from anyone in support of Templeton and against the University's censorship. The Kitchener-Waterloo Record, however, printed at least seven letters from around the world in support of Templeton.

Furthermore, at the same time that the University administration was publicly waxing indignant over what was being sent over their networks, the book Truly Tasteless Jokes was being sold in the University's own bookstore. Arlene Klapman, then assistant director of book acquisitions at the bookstore, was the only person in any position of authority in the University to say anything against censorship. Klapman

	... said she doesn't censor the books she orders.  And they're
	on the shelf because they sell, she said.

	She said she has never received a complaint that the `Truly
	Tasteless Jokes' books -- part of a series -- are offensive.

	"This is a university and in my mind, people are supposed to
	develop a sense of what their taste is.  They can't really do
	that if I am putting on the shelf everything to suit my taste,"
	Klapman said.  [37]
Later, the University bookstore also sold copies of Templeton's collections of jokes from "rec.humor.funny".

The newsgroup "rec.humor.funny" remained censored at the University of Waterloo until October 3, 1991.

b. The banning of the "alt" hierarchy.

Sometime in the spring of 1990, the newsgroup "alt.sex.bondage" was banned at Waterloo. Details of this ban are still difficult to come by, but it apparently happened after someone outside Waterloo posted a sex torture fantasy called "Cindy's Torment" to the group.

Later, in May 1990, then-Associate Provost for Computing Johnny Wong censored the "alt" hierarchy of Usenet News, which then contained about 70 groups. The University administration gave inconsistent statements about the rationale. Provost Alan George was first quoted as saying, "The main reason was economic" [13]. The Gazette reported "The size of the newsgroup material has actually made it necessary for UW to buy new computer disk drives, he said", and "George said the cuts were not being made in response to particular material that had appeared on the newsgroups, or to offensive content there."

George's reasons were disputed by the people actually in charge of the computers. One MFCF employee cited the number of staff hours required to effect the change. Another pointed out the data came in over a fixed link to the University of Toronto, and there was no immediate savings from cutting the "alt" groups, which represented about 10% of total transmissions [14].

Then, in November 1990, some of the banned "alt" groups were restored. This time, George was quoted in the Gazette as saying that the cancellations were made "essentially to avoid the kind of controversy that erupted about a year ago when there was some very offensive material distributed over the networks" [15]. However, the "alt.sex" hierarchy was not restored [16].

An advisory committee was set up to "present a clear statement of principles vis-a-vis responsible use of university resources to support newsgroups" [15]. It issued its report, which was strongly in favour of intellectual freedom, on May 30, 1991 [40]. Among other things, the report disclaimed all University responsibility for certain violations of the law, such as copyright, and called for the user community to be widely consulted before changes in Usenet news subscriptions were made.

Finally, on October 3, 1991, all previously banned newsgroups were restored [50].

It is important to note that during this time, there was apparently no discussion of whether the University Library should be carrying books such as William Burroughs' Naked Lunch (which contains scenes of sexual violence); or William Faulkner's Sanctuary (which has a scene in which a woman is violated with a corn cob); or even Marian Engel's Bear (in which a woman fantasizes having sex with a bear). In light of this, I'd like to present what I modestly call Shallit's Three Laws of New Media:

  1. Every new medium of expression will be used for sex.
  2. Every new medium of expression will come under attack, usually because of Shallit's First Law.
  3. Protection afforded for democratic rights and freedoms in traditional media will rarely be understood to apply to new media.

c. The banning of "alt.fan.karla-homolka".

On July 5, 1993, Judge Francis Kovacs of the Ontario Court of Justice issued a 77-page ruling imposing a ban on the publication of information regarding the trial of Karla Homolka. According to the decision, "There will be no publication of the circumstances of the deaths of any persons referred to during the trial." The judge stated, "A limited ban on publication must rest on the balancing of the constitutional rights of freedom of the press and the right of a fair trial by an impartial tribunal for Paul Bernardo Teale."

On November 23, 1993, the Washington Post ran an article [41] that apparently violated the terms of the publication ban. Copies of the article were also distributed via the Usenet newsgroup "alt.fan.karla-homolka".

On November 30, 1993, Provost Jim Kalbfleisch issued a memo instructing Associate Provost for Computing Johnny Wong to "take whatever steps are necessary to remove this material ... from the network on the basis that the University is not prepared to risk being charged with contempt of court for violating a Court Order."

Wong immediately issued an order to remove the newsgroup "alt.fan.karla-homolka" from University networks. Later, a single article from the newsgroup "uw.general" was also deleted.

However, by my estimate, 99% of the messages on the "alt.fan.karla-homolka" newsgroup did not contain material that could not be legally published in Canada, but rather, discussions about the wisdom of publication ban in general and the Kovacs ban in particular.

The University refused to provide the copy of the legal advice used as the basis for its censorship, in contrast to the case with similar advice provided by McGill's lawyer, Raynald Mercille [42].

The newsgroup was finally restored on October 4, 1995, a month after the Paul Bernardo trial was concluded.

d. The banning of five newsgroups dealing with sex.

In September 1992, Bernard Shapiro, then Deputy Minister for Colleges and Universities in the Ontario Ministry of Education (and now Principal of McGill University) issued a memo stating:
	It has recently come to my attention that computer systems at
	Ontario's colleges and universities, normally used for the
	exchange of information between academics and scientific
	researchers, may be providing access to pornographic and/or
	racist material through international computer networks.

	It is the ministry's position that publicly-funded
	postsecondary institutions in Ontario should have appropriate
	policies and procedures in place to discourage the use of their
	computing systems for purposes of accessing or sending racist
	or pornographic materials.  Furthermore, offensive material
	should be removed when it is identified, and appropriate
	sanctions should be in place to deal with offences....

	...I do not believe that publicly-funded institutions should
	be seen to support either access to, or distribution of
	offensive material... [17]
In July 1993, Sonia Prevost-Derbecker, then co-ordinator of the UW Women's Centre, was the subject of two articles in the Kitchener-Waterloo Record [18, 19]. Prevost-Derbecker complained that Usenet was carrying "the most brutal pornography I have ever come across in my life", and called on the University to cease the distribution of pornography over its computers. There was, oddly enough, no complaint by Ms. Prevost-Derbecker about the presence of Caught Looking in the University library [52], a book containing ``hard-core'' pornographic photographs, including some bondage themes.

In late October 1993, the President asked the Ethics Committee to consider once again the question of pornographic newsgroups [51].

Then, in a memo of January 31, 1994, President Downey announced a new policy for "Newsgroups on the Internet". Under the new policy, complaints about "obscene" newsgroups were to be directed to the Ethics Committee, who would then decide if they should be censored on campus. Downey's memo [43] contained several inaccuracies which have never been officially acknowledged. To name just three, the memo conflates pornography with obscenity, claims that the University is "running a risk of prosecution if it knowingly receives and distributes obscene material" when in fact, no one in Canada has yet been charged with obscenity for distribution of Usenet news, and, most egregiously, claims that the new policy is "consistent with recommendations put forward in the Report of the Advisory Committee on Network News (May 30, 1991)", when in fact Downey's new policy was entirely at odds with that report. I think many people would have felt better about the censorship if they didn't also have the impression that they were being deceived.

President Downey's justification of his policy often defied credulity. For example, in a letter to me dated January 11, 1994, Downey stated:

	The issue of the `alt.sex' news groups [sic] is a different
	matter, involving the question of obscenity and the possible
	breach of a provision of the Criminal Code.  The Criminal Code
	makes it clear that it is an offence for anyone to publish or
	distribute any obscene material.  Again, the law appears to be
	very clear and the University is running a risk of being
	charged and prosecuted if obscene material is received and
	distributed by the University.
Most lawyers familiar with Canadian constitutional law would, I think, find these claims laughable. First of all, while the Criminal Code does indeed address publication and distribution of "obscenity", to my knowledge there has never been a single charge laid for distributing Usenet newsgroups. If the law is so clear, why haven't there been any charges? Could it be that the prospect of taking the President of the University out in handcuffs is too embarrassing for the OPP even to contemplate?

Second, by reading Section 163 of the Criminal Code, it is easy to see that there is an obvious exception to the rule, namely, Section 163(3):

	(3) No person shall be convicted of an offence under this
	section if the public good was served by the acts that are
	alleged to constitute the offence and if the acts alleged did
	not extend beyond what served the public good.
Could not a reasonable defence be made by holding that the University is serving a "public good" by defending the principle of free expression?

Third, is the law as clear as President Downey claims? Let's see what an expert on Canadian constitutional law has to say on the matter:

	If one had to choose the most muddled law in Canada today,
	there is no doubt that the law relating to obscenity would be a
	top contender.  It is muddled not so much in purpose --
	although there are some who would contest even this -- but in
	definition, technique, and interpretation. [49]
The following day, February 1, 1994, the axe fell. Provost Jim Kalbfleisch announced that the Ethics Committee had met and had recommended five newsgroups dealing with sex be banned.

Again, the text of the memo contained a misleading implication which has never been officially acknowledged. It stated that,

	The Ethics Committee, with legal advice, has reviewed a
	number of Newsgroup [sic] on the Internet, and has 
	concluded that several of them from time to time contain
	obscene material contrary to the Criminal Code.  Therefore,
	I request that you take immediate action to remove the
	following newsgroups:

In fact, the Ethics Committee's report [44] consisted of about three-quarters of a page which revealed, contrary to the implication in the memo, that only the first two newsgroups in the list were specifically targeted by the University's lawyer, Reg Haney, as violating the Criminal Code of Canada. Furthermore, the Ethics Committee acknowledged that the censorship they recommended was, in fact, "largely symbolic". The other three newsgroups were slated for censorship by the Ethics Committee itself, without the benefit of specific legal advice.

Once again, the legal advice that the committee actually received was not released. Contrast this with the state of affairs at the University of British Columbia, where a committee struck by the Associate Vice-President in 1992 released an approximately fifty page report [45]. In an appendix to this report, Peter Danielson, Senior Research Fellow at the Centre for Applied Ethics at UBC suggested that

	... in a university setting ... the authority of the censor
	presumably must be intellectual and moral, not political,
	and therefore the grounds for the decision must be accessible
	to the judgment of the university community, arguably the best
	informed community on matters intellectual and moral.
Student opinion seemed generally against the ban. A petition circulated by the Graduate Student Association received over 300 signatures, one of the largest anti-administration protests in recent memory. (A similar petition in favour of the ban received less than a dozen signatures.)

Nevertheless, the Administration stood firm. Provost Jim Kalbfleisch, when asked about the petitions, replied that they would have no effect on the policy [68].

The Computer Science Club sponsored a forum on the newsgroup bans. During this forum, I pointed out that a book entitled Women's Erotic Dreams by Celeste Paul was being sold in the University bookstore, and that it contained material not substantially different from the material in the banned groups. In particular, it contained explicit descriptions of sex with children and animals. When I tried to read from the book to make my point, the Chair of the Ethics Committee actually attempted to prevent me from speaking by taking my microphone away! I considered filing an Ethics complaint against her, but I seriously doubt she would have ruled against herself.

In a series of letters beginning in May 1994, I attempted to get the Ethics Committee to clarify exactly what criteria would be used to ban newsgroups, and to explain what appeared to me to be some dramatic inconsistencies in the Ethics Committee's policy. I also requested reinstatement of the newsgroups alt.sex.stories.d and alt.tasteless. The Committee did not reply until nearly a year later, when both requests for reinstatement were turned down. (More detailed information about the original decisions can be found in a 3-part article I wrote for the local Faculty Association newsletter [67].)

As of this writing, the five sex newsgroups remain banned. However, the newsgroups in the list below, many of which appear more questionable than the five banned ones, are still available at present.

Inconsistent? You be the judge.

Why all the censorship incidents at the University of Waterloo? I think there are at least four contributing factors.

First, many of those writing about the issues and those in power are ill-informed about computers, intellectual freedom, and the nature of the Internet. The newspaper headline in 1988 read [11] "UW computer used to send racial jokes"; if it had been entitled "UW library contains racist material" or "UW phones used to subscribe to Playboy", I doubt that anybody would have raised an eyebrow. In fact, the terror and unfamiliarity of new media is illustrated by the inconsistency of the decisions. Why did President Downey feel it appropriate to review computer newsgroups, but not videotapes or books? Why did the Provost censor only a single article from one issue of the Washington Post, but an entire computer newsgroup? Why did the Ethics Committee censor only text newsgroups (which are probably legally protected), and not picture newsgroups (which may not be)? In my discussions with the President and Provost, neither one showed any understanding of the medium or its uses. Neither one had a personal e-mail address and both expressed reluctance to acquire one. The members of the Ethics Committee that made the original decision, too, were largely unfamiliar with the technology. None were lawyers, although one had legal training.

Second, University administrations in general seem to live in terror of bad publicity; they would rather appease the local media than stand up for freedom of speech. Yes, it takes courage to defend controversial material, and yes, the concept of intellectual freedom is not always an easy one to get across. But one could at least make an effort. I've never heard a single member of either administration ever utter anything more than the most perfunctory remarks in favour of free expression, and even in those remarks the intent has always been to swat the mosquito of free expression before it can bite. Certainly there seems to be no recognition by administrators that legal protections for free expression apply even to controversial speech, such as pornography.

Third, the incidents occurred at (hopefully) the zenith of the movement to control speech on university campuses. This movement suffers from what Jonathan Rauch calls the "humanitarian fallacy" [27]: it is more important to avoid offense than it is to get at the truth. Sorry, but the search for truth sometimes involves offending people.

Fourth, hardly anyone among the faculty dared oppose the censorship imposed by administrators. (A pleasant exception is the Advisory Committee's 1991 report on network news.) Partly, I think this is due to a surprisingly pervasive fear among faculty members that controversy will earn them only enmity, and not respect. (For example, in an unrelated matter I was recently told by a professor of 25 years' standing that he was reluctant to put any protest in writing for fear it would be later used against him.) For this climate of fear, I blame the administration. But I also blame the faculty for not rising above this fear.

Earlier I referred to the legal basis for challenging University censorship. This basis received a boost from Justice John Sopinka of the Canadian Supreme Court, who said in a speech at Waterloo on November 26, 1994:

	Difficult issues also arise in the context of universities
	which take action to ban certain communications found to be
	offensive and undesirable. First, one must ask whether it is
	not preferable to permit the expression and allow the criminal
	or civil law to deal with the individual who publishes obscene,
	defamatory or hateful messages rather than prevent speech
	before it can be expressed.  Otherwise, individuals may be
	putting themselves in the positions of courts to determine what
	is obscene and what is acceptable...

	...If governing bodies [of universities] engage in acts of
	censorship, they run the risk of being classed as government 
	action and subject to the control of the Charter. In this 
	regard it is pertinent to observe that in the United States 
	the First Amendment has been applied to State universities. [39]
However, even if this is the case, courts are unlikely to rule in the near future that there is a right to Usenet access at universities. In the only relevant Canadian case, Robyn Blaber, a student at the University of Victoria, sued the University for unconstitutional infringement of his freedom of speech. The University had terminated one of Blaber's accounts under their harassment policy, after he used it to post an attack on a female student in a local newsgroup. The Court held that the student should have first pursued internal remedies, and that there was no convincing evidence that the action was really (per precedent of McKinney v. Guelph) a state action [56].

5. Unsolved Problems.

I'd like to conclude with a few Internet-related problems that I don't yet see how to solve.

First, the problem of "spamming". A "spam" consists of posting the same message individually over and over, to dozens or hundreds of groups, nearly all of which are unrelated to the content of the message. How can it be prevented? Spamming is hard to deal with for a number of reasons, not the least of which being that advertisers perceive reap short-term benefits by spamming, and as a group, they are not particularly noted for their attention to ethics. The "solution" offered by some users, namely to illegitimately forge cancel messages, is no solution at all, despite the fact that many are pleased with it.

Second, the problem of forged cancel messages. This is an evident tool of the censor, and those opposed to free expression have figured it out. For example, Scientologists are apparently cancelling messages of disgruntled former members [58]. Should they be tolerated? How can one decide what is and is not a "legitimate" cancel message? Do self-appointed cancellers represent a threat to free speech? [70]

Third, the problem of "junk mail". I have begun to receive ads and solicitations from firms with forged headers, offering goods and services through a phone number. Since the headers are forged, there is no one to complain to. The advertisers are probably obtaining my ID from Usenet postings. Even worse, I have received two lengthy mail messages from a racist group, William Pierce's National Alliance. While the mailer can be configured to reject many of these messages, clearly if many senders adopt this tactic, there will be a serious bandwidth problem.

Fourth, web pages on University computers. Should they be a free speech zone, or are they controllable by University administrators?

I urge all of you to consider how best to consider these questions while maintaining respect for the guarantees of freedom of expression in the Charter.


Bill Ince, Ray Butterworth, Ken Wellsch, and Brad Templeton were kind enough to share their insights into the events at Waterloo. Chris Redmond allowed me to examine old issues of the Gazette at his office. Doug Morton helped me with electronic searches. I am indebted to their kindness. Of course, they are not responsible for any errors or omissions in my account; that responsibility is mine alone.

Postscript (added January 26 2000)

On December 20, 1999, the ban on the five newsgroups dealing with sexual topics at the University of Waterloo was finally ended. See the memo from Jim Kalbfleisch for more details.


[1] John Stuart Mill, On Liberty, 1859, Chapter 2.

[2] John Milton, Areopagitica -- A Speech For the Liberty of Unlicensed Printing, 1644.

[3] Potter Stewart, dissenting in Ginzburg v. United States, 383 U.S. 463 [1966].

[4] In the discussion that follows, I am following the arguments of Rodney A. Smolla, Free Speech in an Open Society, Vintage Books, 1992.

[5] Oliver Wendell Holmes, Jr., Abrams v. United States, 250 U.S. 616, 630 [1939].

[6] Thurgood Marshall, Procunier v. Martinez 416 U.S. 396, 427 [1974].

[7] Robertson v. Regina, (1963) S.C.R. 651, 41 D.L.R. (2nd) 485.

[8] Regina v. Butler, Dominion Law Reports 89 (1992), 449-499.

[9] Myron Thompson, press release, November 7, 1994.

[10] "Jokes on computer net create stir at UW", University of Waterloo Gazette, Volume 29, Number 14 (December 7, 1988), p. 3.

[11] Luisa d'Amato, "UW computer system used to send racial jokes", Kitchener-Waterloo Record, November 30, 1988, page A1.

[12] Arthur Butz, The Hoax of the Twentieth Century, Historical Review Press, 1976. In Dana Porter Controlled Access, call number D804.G4B8x 1976.

[13] "UW pulls the plug on computer chat", University of Waterloo Gazette, Volume 30, Number 33 (May 9, 1990), p. 5.

[14] "Newsgroups will not return", University of Waterloo Gazette, Volume 30, Number 35 (May 30, 1990), p. 4.

[15] "Alt.* returns", University of Waterloo Gazette, Volume 31, Number 12 (November 21, 1990), p. 1.

[16] "Seven will advise on `newsgroups'", University of Waterloo Gazette, Volume 31, Number 13 (November 28, 1990), p. 1.

[17] Memo from Bernard Shapiro, September 1992.

[18] Tony Reinhart, "Women's activist wants UW computer porn banned", Kitchener-Waterloo Record, July 15, 1993, p. B1.

[19] Barbara Aggerholm, "UW to probe offensive images in computer network", Kitchener-Waterloo Record, July 20, 1993, p. B1.

[20] Oliver Wendell Holmes, Jr., U.S. v. Schwimmer [1928].

[21] Oliver Wendell Holmes, Jr., Gitlow v. New York, 268 U.S. 652, 673 [1925].

[22] Charles Rembar, in Censorship: For & Against, Hart Publishing Company, New York, 1971, p. 203.

[23] Wired, October 1995, p. 45. The study is entitled "The Effects on Custom Officers of Reviewing Pornography", and is written by W. L. Marshall and S. M. Hodkinson. Marshall is a professor in the Psychology department at Queen's University.

[24] Parker Barss Donham, "An Unshackled Internet: If Joe Howe Were Designing Cyberspace", speech at Symposium on Free Speech and Privacy in the Information Age, University of Waterloo, November 26, 1994.

[25] Nat Hentoff, Free Speech for Me -- But Not for Thee: How the American Left and Right Relentlessly Censor Each Other, HarperCollins, 1992.

[26] Benno Schmidt, speech to 92nd Street YMCA, New York City, March 1991, quoted [25, p. 136].

[27] Along these lines I strongly recommend Jonathan Rauch's Kindly Inquisitors: The New Attacks on Free Thought, University of Chicago Press, 1993.

[28] Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, Scribner, 1995. See especially pp. 229-244.

[29] Along these lines see Jonathan W. Emord, Freedom, Technology, and the First Amendment, Pacific Research Institute for Public Policy, San Francisco, 1991, esp. pp. 6-7.

[30] Tony Reinhart, "Merchant ready to fight: police seize marijuana-cultivation magazines", Kitchener-Waterloo Record, August 6, 1994, p. B1.

[31] Iorfida et al. v. MacIntyre et al., 21 O.R. (3d) 186 [1994].

[32] Tanya Talaga, "Dalhousie radio station censored by CRTC", University of Toronto Varsity, October 31, 1994, p. 1.

[33] For more information along these lines, see, for example: Thomas R. Berger, Fragile Freedoms: Human Rights and Dissent in Canada, Clarke, Irwin & Company, Toronto, 1981; Gary Botting, Fundamental Freedoms and Jehovah's Witnesses, University of Calgary Press, 1993; Douglas A. Schmeiser, Civil Liberties in Canada, Oxford University Press, 1964.

[34] Derek Humphry, Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying, Dell, New York, 1992.

[35] David Johnston, speech at Net '95 Conference, Ottawa, June 21, 1995.

[36] This and the following few paragraphs are taken more or less verbatim from Jeffrey Shallit, "Public Networks and Censorship", talk for the Ontario Library Association, January 15, 1995. To appear in Peter Ludlow, ed., Conceptual Issues on the Electronic Frontier, MIT Press.

[37] Barbara Aggerholm, "Racist joke book `inconsistent' with UW policy", Kitchener-Waterloo Record, January 25, 1989, pp. B1, B2.

[38] Legislation that violates s.2 of the Charter is, under the "Oakes" test, acceptable only under s.1 if it fulfills a "pressing and substantial objective" and the means used are "proportional". See, for example, [39].

[39] John Sopinka, ``Freedom of speech and privacy in the information age'', text of speech delivered at the University of Waterloo, November 26 1994.

[40] Report of the Advisory Committee on Network News, May 30, 1991.

[41] Anne Sewardson, "Unspeakable crimes: this story can't be told in Canada. And so all Canada is talking about it", Washington Post, November 23, 1993, p. B1.

[42] Raynald Mercille, memo of December 3, 1993.

[43] Memo from University of Waterloo President James Downey, January 31 1994.

[44] Memo from Sally Gunz, Chair, Ethics Committee, to Dr. James Downey, President, University of Waterloo, January 7, 1994.

[45] Report of the Task Force on The Appropriate Use of Information Technology, University of British Columbia, December 1992.

[46] "Dragnet: will a new morality squad muzzle InterNet free speech?", Globe and Mail Report on Business Magazine, August 1995, p. 16. Available in Dana Porter Controlled Access, HF 5071 R35x V. 12 No. 2 1995.

[47] Pierre Berton, The Great Depression, Penguin Books, 1991.

[48] New England Watch and Ward Society, Annual Report, 1905-06, p. 35. Quoted in Paul S. Boyer, Purity in Print: The Vice-Society Movement and Book Censorship in America, Charles Scribner's Sons, New York, 1968, p. 44.

[49] Douglas A. Schmeiser, Civil Liberties in Canada, Oxford University Press, 1964, pp. 232-233. It is worth emphasizing that this comment was published five years after Parliament added s.163 (8), which gave a definition of the term obscenity. Prior to 1959, s.163 did not even define the term.

[50] "All newsgroups are back as Wong accepts advice", University of Waterloo Gazette, Volume 32, Number 6 (October 9, 1991), p. 7.

[51] "Computer sex: newsgroups are under scrutiny again", University of Waterloo Gazette, Volume 3, Number 10 (November 3, 1993), p. 3.

[52] Kate Ellis, Beth Jaker, Nan D. Hunter, Barbara O'Dair and Abby Tallmer, eds., Caught Looking: Feminism, Pornography, and Censorship, The Real Comet Press, Seattle, 1988. In Dana Porter Controlled Access, HQ 471.C38 1988.

[53] Max Planck, The Philosophy of Physics, edited by Vincent Edward Smith, St. John's University Press, 1961.

[54] Christopher Hume and Bruce DeMara, "Artist charged with child pornography", Toronto Star, December 22 1993, p. A17.

[55] "What does the criminal code mean by artistic merit?", Globe & Mail (Toronto), April 24 1995, p. A15.

[56] Blaber v. University of Victoria, [1995] B.C.J. No. 558, Victoria Registry No. 94 4823 [944823], British Columbia Supreme Court, Victoria, British Columbia.

[57] See Smolla [4, p. 31].

[58] See, for example, Ron Newman's page.

[59] Elizabeth Payne, "Rae accuses Harris of smear", Kitchener-Waterloo Record, December 9 1994, p. A3.

[60] K. K. Campbell, "The little DeathNet story that grew: why many people now believe that teens can login and learn how to off themselves", Eye (Toronto), May 11 1995, p. 16.

[61] Craig McInnes, "Computer buff takes on hatemongers with a passion", Globe & Mail (Toronto), October 18, 1994, p. A6.

[62] K. K. Campbell, "Mike Harris: roasted alive", Eye, December 15, 1994, p. 16.

[63] A. Alan Borovoy, When Freedoms Collide: The Case for Our Civil Liberties, Lester & Orpen Dennys, 1988, p. 62.

[64] David Vienneau, "MPs pass tough law to combat child porn", Toronto Star, June 16 1993, p. A3.

[65] Frederick Edwords, "Is it really fair to give creationism equal time?", in Scientists Confront Creationism, Laurie R. Godfrey, ed., W. W. Norton & Company, 1983, pp. 301-316.

[66] Kimberley Noble, Bound and Gagged: Libel Chill and the Right to Publish, HarperCollins, Toronto, 1992.

[67] Jeffrey Shallit, Censorship: The Libraries, the Internet, and the University, University of Waterloo Faculty Association Newsletter (The Forum), January-March, 1994. This account contains some minor inaccuracies which have been corrected in the present account.

[68] John Roe, "Students challenge computer porn ban", Kitchener-Waterloo Record, March 5 1994, p. B1.

[69] "Ban on pedophilic publications demanded", Vancouver Sun, January 21 1993, p. A3.

[70] Jack Kapica, "The Net cops on crack down on `spamming'", Globe & Mail (Toronto), October 6 1995, p. A10.

[71] Jack Kapica, "The tale of a prankster and a premier", Globe & Mail (Toronto), October 27 1995, p. A12.