Losing Our Way

Neither “society’s tolerance” nor the “captive audience” doctrine justify censorship of anti-abortion ads

Over at ABlawg, Ola Malik has a post praising the decision of the Alberta Court of Queen’s bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734. I have been scathing of that decision here, and I believe that Mr. Malik is wrong. His posts illustrates the sort of thinking, which is also at work in the Court of Queen’s bench decision, that will, if unchecked, render freedom of expression an empty phrase in Canada. Contrary to what Justice Anderson and Mr. Malik believe, it is not, and it cannot be, the state’s job to protect citizens from any discomforting ideas that might come their way.

By way of reminder, the decision at issue allowed a municipality to censor ads that an anti-abortionist group sought to post on the outside of its buses. In the court’s view, this decision was reasonable because the ads targeted a captive audience that could not help but see them, and because they risked causing upset and even harm, both because they featured the word “killing” and because they referred to a website that made derogatory statements about women who had abortions. In my post, I said that this “reasoning is disturbing if not perverse”, notably because it could be applied to censor any strongly expressed message (though it is, of course, rather more likely to be applied to “politically incorrect” views than, say to Oxfam’s or Amnesty International’s ads).

By contrast, Mr. Malik, a municipal prosecutor, is very happy about a decision that is “most helpful to municipalities seeking to limit the placement of controversial advocacy messaging in public places”. He claims that

speech which targets certain groups of people, especially those who are otherwise exercising their legal rights (in this case, women seeking abortions) cannot be said to promote the objectives which underlie freedom of expression.

He argues that Justice Anderson is right to have “endorsed the captive audience doctrine”, since the corollary of the freedom to speak is the freedom not to hear unwanted speech. Mr. Malik adds that “[h]ad the advertisement been … ‘merely informative and educational’, [77] the Court may have been less prepared to use the captive audience doctrine.” But the ad in question was actually harmful, and the Court, says Mr. Malik, was right so to find: “the Court recognized that hateful or offensive expressive activity in a prominent public space can have a harmful psychological impact on the well-being of civil society”. Mr. Malik cautions, however, that such findings “need[] to be arrived at with care”, so as to avoid “underestimating society’s tolerance for controversial and provocative messaging. And”, he says, “we need to be mindful that a test which references community harm doesn’t turn into a test of community censorship”.

With respect, community censorship ― or, more accurately, censorship by bureaucrats and judges purporting to act on the community’s behalf ― is precisely what Mr. Malik supports, whether or not he intends to do so. Freedom of speech is, among other things, te freedom to engage in “controversial advocacy messaging in public spaces”. It is, among other things, the freedom to criticize “certain groups of people”, including people “who are otherwise exercising their legal rights” ― to have an abortion, to eat meat, to minimize tax liabilities, to fail to give to charity, what have you. The law is not the measure of morality, and in a free society what is moral ― as well as what is legal ― is an appropriate subject for public debate and criticism. The issue is not just that, by allowing bureaucrats and judges to stifle debate and silence criticism, we might “underestimat[e] society’s tolerance”. It’s that the extent of society’s tolerance cannot be the measure of the freedom of expression that its members enjoy. If it had been otherwise, slavery would still be legal, homosexuality would not, and women would still be denied the vote. Advances in human rights are rarely achieved entirely within society’s comfort zone.

A few observations on the concept of a captive audience, of which Mr. Malik makes much, are also in order. As I said in my first post, the idea that people who see buses in the street are a captive audience unable to avoid the message communicated by the ads posted on these buses is preposterous. If the state is able to censor any message merely because someone might be unwittingly confronted with it for a few moments, the state can censor anything at all. Unsurprisingly, this is not what the cases to which Mr. Malik refers, and those to which he doesn’t, hold.

The case to which he ascribes “the most comprehensive treatment of the captive audience doctrine” in Canada,  R v Breeden, 2009 BCCA 463, does not turn on the application of this doctrine at all, but on the question whether a person can be prevented from protesting at very specific locations (namely the lobby of a courthouse and that of a municipal council building) that were not, historically or currently, normally used for such expression. (This alone would suffice to distinguish the case from that of bus advertising even if the case really did support Mr. Malik’s use of it. But it does not.) In fact, to the extent that Breeden has relevance for the issue of captive audiences, its import is precisely the opposite of what Mr. Malik takes it to be. Justice Hall, writing for the unanimous court, pointed out that

[i]t was not suggested in this case that he express himself to a different group of people, rather simply that he change the location of his activity to the sidewalk area outside the buildings, where he would have access to the same potential audience. [27; emphasis mine]

The ability to communicate with “the same potential audience” was a crucial reason was the restriction on the place where this communication could take place was upheld.

As for the American jurisprudence, it is no more supportive of Mr. Malik’s position than Breeden. Mr. Malik quotes from the case of Lehman v City of Shaker Heights, 418 US 298 (1974); he does not say that the opinion he is quoting is a concurrence, by Justice Douglas, which would have found that all advertisement in buses ― not on their outside, mind you, so that the case for the proposition that the audience is a captive one is significantly stronger ― are an infringement of the commuters’ rights. Justice Douglas would not have allowed the city that owned the buses to pick and choose ads that were uncontroversial or harmless. On the contrary, he did

not view the content of the message as relevant either to petitioner’s right to express it or to the commuters’ right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. (308)

In any case, Justice Douglas was alone in this view. Justice Blackmun’s opinion (with the support of three others) referred to the issue of captive audiences, but only as one reason among several for which the city could reasonably have chosen to prohibit political advertising but not the commercial sort. Another such reason, it is worth noting, is “minimiz[ing] … the appearance of favoritism”. (304) The decision of the Alberta Court of Queen’s Bench, and Mr. Malik’s arguments, do no such thing ― they do not say that the municipality wanted to, or would or ought to have, banned pro-choice ads as well as anti-abortion ones. As for the for the other opinion in Lehman, that of Justice Brennan, it would have found content-based decisions about which advertising to allow unconstitutional.

Let me mention another American case, which Mr. Malik ignores: Cohen v California, 403 US 15 (1971), the famous “Fuck the draft” decision. That slogan was emblazoned on a jacket that the appellant had worn in a courthouse, and Justice Harlan, for the unanimous court, wrote that

in arguments … much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately [punish him] in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. (21)

But, Justice Harlan responded,

[o]f course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. … Those [confronted with Cohen’s jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes. (21)

Mr. Malik, Justice Anderson, and anyone else inclined to agree with them would do well to study that opinion, and to take Justice Harlan’s advice to heart.

As Edmund Burke wrote long ago,”[t]he great inlet by which the colour for oppression entered into the world is by one man’s pretending to determine concerning the happiness of another”. This too is something that our would-be censors, who would determine concerning our happiness, or, in modern jargon ― since we have learned the words, without embracing the ideas, of John Stuart Mill ― protect us from harm, would do well to ponder. That a prosecutor, like Mr. Malik, supports censorship is disappointing; that a judge, like Justice Anderson, endorses it is distressing; but if our fellow-citizens were to agree with them, that indeed would be dispiriting.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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