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Compelled speech is a transmission of expression required by law. A related legal concept isprotected speech. Just asfreedom of speech protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which that individual disagrees.
Freedom of expression is a fundamental freedom underSection 2 of theCanadian Charter of Rights and Freedoms. TheSupreme Court of Canada has interpreted this right as including "the right to say nothing or the right not to say certain things."[1] InRJR-MacDonald Inc v Canada (AG), tobacco companies successfully challenged legislation requiring them to include unattributed health warnings on packaging. InLavigne v Ontario Public Service Employees Union, the Court held that mandatory union membership and dues, some of which were used for purposes the union member disagreed with, did not violate his right to freedom of expression. InSlaight Communications Inc. v Davidson,[2] the Court held that a requirement to provide a reference letter for a former employee who was unjustly dismissed did infringe the employer's freedom of expression, but this infringement was upheld as a reasonable limitation undersection 1 of the Charter.[3]
In 2016,University of Toronto psychology professor and clinical psychologistJordan Peterson argued thatamendments to theCanadian Human Rights Act and theCriminal Code would require compelled speech.[4] The amendments addedgender expression andgender identity as protected grounds to theCanadian Human Rights Act and to theCriminal Code provisions dealing withhate propaganda,incitement to genocide, and aggravating factors in sentencing. Peterson argued that the law would allow him to be fined or imprisoned if he refused to refer to students by theirpreferred gender pronouns.[4][5] Legal experts challenged Peterson's interpretation, saying that the bill would not criminalize using non-preferred pronouns.[6][7][8]
In 2021, Polish-Canadian pastor Artur Pawlowski was ordered by a court to inform his audience of the established opinions of medical experts regarding COVID-19 when expressing his views on the topic in a public setting. The requirement was a part of his probation conditions, which he had been placed on as a sentence forcontempt of court, after he violated a court order requiring him to obey public health restrictions.[9][10][11] However, the sentence was overturned on appeal.[12]
Article 10 of the European Convention on Human Rights protects the right of freedom of expression, andsection 3(1) of the Human Rights Act 1998, requires that as far as possible all legislation be given effect in a way which is compatible with this. InLee v Ashers Baking Company Ltd, theSupreme Court considered whether a bakery inNorthern Ireland had violated anti-discrimination law by refusing to decorate a cake with a message in support ofgay marriage, with which the bakers disagreed on religious grounds. They held that although the bakery may have discriminated on the basis of the customer's political beliefs, which would in itself contravene theFair Employment and Treatment (Northern Ireland) Order 1998,[13] the legislation had to be "read down" in a way which would not violate the defendants' Article 10 rights, taken to include the rightnot to express a particular opinion. The right in Article 9 is a limited right because it permits restrictions on free speech that arenecessary in a democratic society in pursuit of a legitimate aim, but the Supreme Court found that no such justification existed in this case.[14] The court also considered whether the defendants had discriminated based on sexual orientation, but because they concluded that they had not done, the court did not need to consider whether the relevant legislation should be similarly read down.[15]
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DuringThe Killing Time of the 1680s, an Abjuration Oath could be put to suspects where they were given the option toabjure or renounce their allegiances. The terms of the oath were deliberately designed to offend the consciences of thePresbyterianCovenanters. Those who would not swear "whether they have arms, or not" could be "immediately killed" by field trial "before two witnesses" on a charge of high treason.[16]John Brown was included among those executed in this judicial process byJohn Graham, 1st Viscount Dundee (Bluidy Clavers) on 1 May 1685.[17] The wives and children of such men could also be put out of their houses if they had spoken to the suspect or refused the oath themselves. 18-year-oldMargaret Wilson and 63-year-oldMargaret McLaughlan were killed "without human hand" when they were drowned in the sea for refusing to take the Abjuration Oath.[18]
The Supreme Court has determined that the First Amendment also protects citizens from being compelled by the government to say or to pay for certain speech. InWest Virginia State Board of Education v. Barnette (1943), the Court ruled that school children could not be punished for refusing either to say thepledge of allegiance or salute theAmerican flag. The Court also overruledMinersville School District v. Gobitis (1940), which had upheld such punishments of school children.[19] InNational Institute of Family and Life Advocates v. Becerra (2018), the Court ruled that a California law requiringcrisis pregnancy centers to post notices informing patients they can obtain free or low-cost abortions and include the number of the state agency that can connect the women with abortion providers violated those centers' right to free speech.[20] InJanus v. AFSCME (2018), the Court ruled that requiring apublic sector employee to pay dues to a union of which he is not a member violated the First Amendment. According to the Court, "the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay." The Court also overruledAbood v. Detroit Board of Education (1977), which had upheld legally obligating public sector employees to pay such dues.[21]
He said he would refuse to refer to transgender students by their preferred pronouns [...]. Experts on Canadian law said that Peterson was misreading the bill — that the legal standard for 'hate speech' would require something far worse, like saying transgender people should be killed, to qualify for legal punishment.