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

Jay Newman is a professor of philosophy at the University of Guelph. His
most recently published works are Biblical Religion and Family Values,
Inauthentic Culture and Its Philosophical Critics, and Religion and
Technology.

L.W. Sumner, a philosopher at the University of Toronto, specializes in
issues at the interface of moral philosophy, political philosophy, and
philosophy of law. In this study he applies his general ideas on the
moral foundation of rights to the specific case of speech rights. Sumner
focuses on two forms of expression—the hateful and the obscene—that
have been conspicuously limited by Canadian courts faced with conflicts
between speech rights and equality rights. Sumner believes that when
deciding such prominent cases as those of James Keegstra and Robin
Sharpe, Canadian courts have not consistently applied a principled
normative framework capable of grounding rights to free expression and
of determining appropriate limits to those rights. He attempts here to
establish such a framework, and besides drawing on his own work on
rights, he relies greatly on John Stuart Mill’s ideas in On Liberty
and Utilitarianism. This reliance, which will strike many theorists as
uninspired, reflects the fact that Sumner is a mainstream analytical
philosopher who rarely strays far from a narrow canon of books and
articles. Yet it is also bold, since as Sumner is aware, Mill’s views
in both of his major essays have been subject to an abundance of
powerful criticisms. For one thing, Mill is a thinker often seen as
subordinating principles to subjective assessments. Sumner, in any case,
recognizes the need for the judiciary to perform a balancing act when
dealing with competing rights.

Sumner concludes his study by applying his theory to specific policy
issues. When he advocates, for example, a “slimmed down child
pornography law,” readers may feel that he relies more on subjective
judgment than on a “principled framework.” Sumner’s writing is
clear and unpretentious, so that it is not difficult to discern one’s
agreements and one’s disagreements with him. His focus on Canadian law
is a boon to Canadian readers; and while in places his enthusiasm and
concentration appear to be trailing off, he can be admirably incisive,
as in his sensible comments on the “myth of community standards.”