The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada
Canada and the United States are similar in many respects, and both protect individual rights at a constitutional level. However, the Supreme Court of Canada and the United States Supreme Court have developed alternative conceptions of the constitutional protection of freedom of expression and e...
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ndltd-UBC-oai-circle.library.ubc.ca-2429-60022018-01-05T17:32:53Z The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada Grayson, James Warren Freedom of speech - Canada Equality before the law Freedom of speech - United States Canada and the United States are similar in many respects, and both protect individual rights at a constitutional level. However, the Supreme Court of Canada and the United States Supreme Court have developed alternative conceptions of the constitutional protection of freedom of expression and equality. This thesis describes these differences and attempts to explain the reasons for their development. Under the Fourteenth Amendment, the U.S. Supreme Court merely requires that governmental actors refrain from overt discrimination on the basis of an objectionable ground. Thus, the Court has created numerous doctrines to limit equality to this definition, including color-blindness, intentional discrimination, and multiple levels of review. Each of these concepts has contributed to the application of formal equality by restricting governmental attempts, such as affirmative action, to alleviate social inequality. In addition, the Court's application of content neutrality to freedom of expression cases has restricted attempts to promote equality through legislation restricting hate speech and pornography. By contrast, the Supreme Court of Canada has interpreted the protection of equality in the Charter of Rights and Freedoms to respond to the actual social consequences of legislation. Rather than limiting the Charter to intentional discrimination, the Court will consider governmental actions which have the effect of creating or encouraging inequality. Similarly, governmental restrictions on hate speech and pornography have been upheld by the Supreme Court of Canada as necessary for the protection of equality. For the Supreme Court of Canada, equality has a social reality. These differences suggest an alternative role of government in the rights sphere in Canada and the United States. The United States Supreme Court has developed a rights interpretation which excludes much significant governmental action, whether positive or negative. The Court has incorporated the Bill of Rights into the Fourteenth Amendment and, in doing so, has expanded individual rights at the expense of state power in the promotion of equality. The lack of such a development in Canada has resulted in a more substantial role for social legislation, while still protecting against governmental overreaching through the Charter. Law, Peter A. Allard School of Graduate 2009-03-13T20:00:00Z 2009-03-13T20:00:00Z 1996 1996-11 Text Thesis/Dissertation http://hdl.handle.net/2429/6002 eng For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. 7777972 bytes application/pdf |
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Freedom of speech - Canada Equality before the law Freedom of speech - United States |
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Freedom of speech - Canada Equality before the law Freedom of speech - United States Grayson, James Warren The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
description |
Canada and the United States are similar in many respects,
and both protect individual rights at a constitutional level.
However, the Supreme Court of Canada and the United States
Supreme Court have developed alternative conceptions of the
constitutional protection of freedom of expression and equality.
This thesis describes these differences and attempts to explain
the reasons for their development.
Under the Fourteenth Amendment, the U.S. Supreme Court
merely requires that governmental actors refrain from overt
discrimination on the basis of an objectionable ground. Thus,
the Court has created numerous doctrines to limit equality to
this definition, including color-blindness, intentional
discrimination, and multiple levels of review. Each of these
concepts has contributed to the application of formal equality by
restricting governmental attempts, such as affirmative action, to
alleviate social inequality. In addition, the Court's
application of content neutrality to freedom of expression cases
has restricted attempts to promote equality through legislation
restricting hate speech and pornography.
By contrast, the Supreme Court of Canada has interpreted the
protection of equality in the Charter of Rights and Freedoms to
respond to the actual social consequences of legislation. Rather
than limiting the Charter to intentional discrimination, the
Court will consider governmental actions which have the effect of
creating or encouraging inequality. Similarly, governmental
restrictions on hate speech and pornography have been upheld by
the Supreme Court of Canada as necessary for the protection of
equality. For the Supreme Court of Canada, equality has a social
reality.
These differences suggest an alternative role of government
in the rights sphere in Canada and the United States. The United
States Supreme Court has developed a rights interpretation which
excludes much significant governmental action, whether positive
or negative. The Court has incorporated the Bill of Rights into
the Fourteenth Amendment and, in doing so, has expanded
individual rights at the expense of state power in the promotion
of equality. The lack of such a development in Canada has
resulted in a more substantial role for social legislation, while
still protecting against governmental overreaching through the
Charter. === Law, Peter A. Allard School of === Graduate |
author |
Grayson, James Warren |
author_facet |
Grayson, James Warren |
author_sort |
Grayson, James Warren |
title |
The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
title_short |
The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
title_full |
The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
title_fullStr |
The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
title_full_unstemmed |
The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada |
title_sort |
role of government and the constitutional protection of equality and freedom of expression in the united states and canada |
publishDate |
2009 |
url |
http://hdl.handle.net/2429/6002 |
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