August 19, 2009
Protecting Political and Conscientious Speech
Last month the Supreme Court released judgment in Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, ruling that the transit authority unjustifiably limited the claimants’ freedom of expression by prohibiting political advertisements from being displayed on the sides of buses. The case is a victory for civil libertarians, relieved to see s. 2(b) of the Charter withstand considerable incursion by the offending authority's policies.
The facts of the case are well-known and described here by Chris Donovan for TheCourt.ca. For our purposes, I will provide a brief gloss of his excellent summary. The claimants attempted to purchase advertising on horizontal panels running along the sides of public buses operated by the appellant transit authority. One proposed ad, which was characteristic of the content and tone of the other impugned ads, featured a silhouette of a concert crowd with the caption “ROCK THE VOTE BC.com”.
The transit authority permitted ads which “communicate information concerning goods, services, public service announcements and public events,” although not those which are “likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.” Ads which “advocat[e] or oppos[e] any ideology or political philosophy” or which “conve[y] information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office” are especially not permitted.
At issue was whether the transit authority could, in doing so, lawfully circumscribe the content of the claimants’ otherwise free expression in a public location. By ruling that it could not, the Supreme Court deserves praise for protecting Charter rights from undue government intrusion. Just as pertinently, the SCC’s decision may pre-empt religious objections to atheist bus ads, since their contentious subject matter seems analogous to that of the voter recruitment ads permitted by Greater Vancouver.
The Voter Recruitment Ad Campaign
The Charter’s s. 2(b) guarantee extends prima facie protection to any activity by which one conveys or attempts to convey meaning, regardless of content, subject to a few exceptions. Individual expressions that are violent or threaten violence are not protected, nor are expressions on all government property. Certain limits also exist in confined public spaces, those where children are likely to be present, and in the rare circumstance that the government extends an underinclusive means of expression to a particular group or individual.
Deschamps J. for the Greater Vancouver majority finds that the impugned "ROCK THE VOTE" ads trigger none of these exceptions. The ads’ method of relaying their message was not violent and did not threaten violence. Rather, the ads’ political content lies “at the core of s. 2(b) protection.”
Further, Deschamps J. recognizes that there exists a long history of advertising on the sides of buses, and when the historical function of a place has included such public expression, the Constitution usually protects expression in that location. Such advertising also does not impede the primary function of the bus as a vehicle for public transportation. The Vancouver transit authority, then, would seek to regulate political ads by reference to their content alone.
The regulations also undermine freedom of expression's three motivating rationales, those being the search for truth in a “marketplace of ideas”, the expansion of democratic discourse, and the encouragement of individual self-actualization. Enabling free expression on the sides of public vehicles, where people interact with one another and engage with their surroundings during commutes, would only help promote these rationales. Given that, Deschamps J. confirms that the transit authority quite obviously breached the claimants’ freedom of expression by circumscribing the content of their advertisements.
Further, the means by which the transit authority sought to do so did not minimally impair s. 2(b). While seeking to provide a “safe, welcoming public transit system,” an objective that Deschamps J. conceded is sufficiently pressing and substantial, the authority reacted disproportionately by issuing a blanket prohibition of a valued form of expression -- political speech. It also did so in an important space for public discourse. In my view, the Supreme Court did well to defend expressive freedom against this unjustifiable trespass.
The Atheist Bus Ad Campaign
Although Deschamps J. does not explicitly engage the debate surrounding atheist advertisements in Canada, her opinion seems prescient of the issues that may arise in future litigation. Indeed, I suspect that the appellant transit authority may have also appreciated as much, since its involvement in a protracted legal battle concerning innocuous voter recruitment ads would otherwise seem a dubious expense.
The atheist advertising campaign was founded in the UK when one commuter, disturbed that an ad on a public bus linked to a website proclaiming that all non-Christians will spend eternity in hell, began raising money for a rebuttal. Her own ad read, “[t]here’s probably no God. Now stop worrying and enjoy your life.” Her atheist movement earned supporters across Europe and North America, although several municipalities in Canada, including Vancouver, Victoria, Kelowna, Halifax, London, and Ottawa, initially refused to run the ads, and some municipalities may still persist in their refusal.
Had atheist ads been at issue in Greater Vancouver rather than voter recruitment ads, I do not expect that the Supreme Court would have decided the case differently. After all, the Charter’s freedom of expression guarantee is content-neutral, and the message that “[t]here’s probably no God” is neither violent nor threatening violence. And while this message would certainly constitute religious speech (or speech “conscientious of secularism”, rather, motivated by beliefs protected by s. 2(a)'s freedom of conscience), such speech would still be, in my view, no less “political” than other speech, lying similarly at the core of s. 2(b)’s protection. Conscientious speech also offers an alternative political perspective which diversifies the marketplace of ideas and may even bring individuals to spiritual self-realization, thereby strengthening the values underpinning freedom of expression.
Further, espousing an atheist belief or political view on a bus advertisement should not impede the transit authority’s goal of ensuring a “safe, welcoming public transit system.” As Deschamps J. states, “[i]t is not the political nature of an advertisement that creates a dangerous or hostile environment,” but an ad’s violent or discriminatory message. "There's probably no God" is neither. At most, promoting atheism in public could inspire controversy, but in my and Deschamps J.’s view, citizens, including bus riders and passers-by, cannot reasonably expect to live without controversy in a free and democratic society.
In Sum
If certain transit authorities resume their prohibition of atheist advertising on buses, I believe they would be denying many of their constituents a widespread and effective means for conveying messages to the general public that these constituents are otherwise entitled to access. And thankfully, given the Supreme Court’s recent decision in Greater Vancouver Transit Authority v. Canadian Federation of Students - British Columbia Component, such a prohibition may also fail to withstand Charter scrutiny.
5 Comments
In this decision, which cites City of Montreal and in turn flows through to Irwin Toy and Ford, the protected categories of speech are "(1) democratic discourse, (2) truth finding and (3) self‑fulfillment," [pa.39]. It's unclear why religious proselytizing, which is what atheist bus ads amount to, constitutes political speech rather than truth-finding or self-fulfillment. "Political speech" has, at least to my recollection, been defined by the Supreme Court in rigid terms: it more aptly pertains to elections and democratic engagement than questions of teleology and purpose. It'd be nice if the analysis provided here advanced an argument as to why pro-atheist (or pro-Buddhist, or pro-whatever-other-religion) advertisements deserve top-level protection instead of merely asserting that they should.
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One of the difficulties presented by this decision arises in the court's tossing of the "community standards" section of TransLink's advertising standards policy, namely
"7. No advertisement will be accepted which is likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy;"
This is clearly an infringement, and the court says so when it includes it in its reference to the infringing "policies" rather than singling out specific iprovisions, but can it be wrapped into a reasonable limit? TransLink argued that the policies were designed to ensure a safe and welcoming transit system. The court rejected this at paragraph 76:
"I have some difficulty seeing how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism — regardless of whether it is commercial or political in nature — that the objective of providing a safe and welcoming transit system will be undermined."
This sets a very high bar for offensiveness that will doubtless be the subject of future litigation. Very few advertisements are likely to compromise public safety, but many might make public transit significantly less "welcoming." The standard provided does not allow a company to ban, say, pseudopornographic advertisements for adult services, anti-abortion advertisements featuring bloody fetuses (which, if accompanied by text like "recriminalize abortion - write your MP" would easily constitute full-bore political speech), or calls to ban all immigration, to provide but a few examples that might make riding the bus more unpleasant. The court has indicated where the line will be drawn, but is this reasonable? Poking the religious is easy pickings when compared with the kind of advertisements TransLink will now be forced to run.
I have great sympathy for TransLink, as it seems that their policy was not ill-intentioned: they wanted to maintain goodwill towards their brand, notwithstanding the fact that they're the only game in town, and as a government actor they sought to remain government-neutral on political endorsements and other potentially contentious issues. In her dissent from the decision in the Court of Appeals, Southin JA looked to "signs of state oppression" in the policy; finding none, she thought -- among other more pressing reasons -- that there was no infringement. This is so tertiary a factor in the established jurisprudence as to place her reasoning in that vein in the category of obiter, but might she have a point in the case of government actors providing a monopoly service to the public? Many consumers cannot choose other than public transit because of climatic or economic factors and thus cannot avoid offensive advertisements of the type I outlined above, and at present there is no lack of other advertising opportunities in the city of Vancouver. Should the determination of reasonable limits change when, for the reasons just outlined, the audience is captive -- and thus beholden to the message? It's not much of a marketplace of ideas when one is forced to listen.
I would think that, if a government actor is providing transit service, that transit service is public space. The public space is, by its very nature, cacophonous -- if you don't want to be "forced to listen", stay home or go find your Walden. As Deschamps put it: "Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society."
Not unreasonable suppositions, but let's give Deschamps' statement its full context:
"[77] . . . Article 7, on the other hand, refers to prevailing community standards as a measuring stick for whether an advertisement is likely “to cause offence to any person or group of persons or create controversy”. While a community standard of tolerance may constitute a reasonable limit on offensive advertisements, excluding advertisements which “create controversy” is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society. "
and better to include some of the paragraph that follows as well:
"[78] The fact that the limits are overbroad in the instant case does not mean that the government cannot limit speech in bus advertisements. It is clear from this Court’s s. 1 jurisprudence on freedom of expression that location matters, as does the audience. Thus, a limit which is not justified in one place may be justified in another. And the likelihood of children being present matters, as does the audience’s ability to choose whether to be in the place. . ."
Jason,
Providing the context is always helpful. In this case, however, doesn't the context undermine your critique of the judgment that it "does not allow a company to ban, say, pseudopornographic advertisements for adult services, anti-abortion advertisements featuring bloody fetuses, etc."? Such ads would appear to clearly fall outside the "community standard of tolerance" cited by Deschamps J.
Furthermore, advertising campaigns of the controversial sort rarely blanket an entire transit system -- unlike the relentless sirens of corporate marketing. If you are truly offended, nothing prevents you from switching buses or subway cars, just as nothing prevents you from looking away from a demonstration, changing a radio station, or walking on the other side of the street from a hellfire & brimstone street preacher.
As opposed to this rather simple remedy for the offended listener, what recourse does a citizen have against the chilling effect on public dialogue that results from widespread bans on "controversial" advertisements? J.S. Mills' defense of free discussion remains as appropriate as it was in 1859:
James,
In a word, yes, it does.
You have me for using conclusive language (does not) instead of a more wobbly construction (may not). But you'd have me better if either of us had read the appeal decision in full or consulted TransLink's amended policy documents: the former, which was upheld without variation by Deschamps, stipulated that the policy is of no effect to the extent that it limits political advertisements; the latter seems to have drawn from the meaning of the decision rather than the order, as only the portion of the impugned section pertaining to controversy has been excised while the rest still stands -- not including the other impugned sections, of course. Both of these are reasonable and limited remedies, but the issue of offensiveness and community standards remains to be litigated in full. http://canlii.org/en/bc/bcca/doc/2006/2006bcca529/2006bcca529.html , at para 163 and http://www.translink.ca/~/media/Documents/About%20TransLink/Doing%20Business/Advertising/TransLink%20Advertising%20Policy.ashx, at #7. Of particular interest to this post is the fact that TL went beyond the scope of the order and knocked out #8 as well, which prohibited advertisements that oppose or promote a specific theology. Apologies all around.
With respect to Mill, the point will be carried based on how "widespread" a ban happens to be; if there is no other suitable public forum in which such statements can efficaciously be brought before the populace I stand with you, but if not things become altogether trickier. This much appears to be acknowledged in your proposed solution, which, in the inverse case, works and is reasonable so long as a campaign is not so all-pervasive as to be unavoidable -- or, and not to use the same overwrought adjective twice, as to be reasonably unavoidable.