Can Canada Ban Books?

The New Yorker has published an interesting, albeit tendentious, as The Volokh Conspiracy’s Jonathan Adler explainsaccount by Jeffrey Toobin of the notorious Citizens United decision of the U.S. Supreme Court, which struck down limits on corporations’ spending on pre-electoral advertising. According to Mr. Toobin, the key to Supreme Court’s engagement with the  case was a question asked by Justice Alito: while the law at issue applied to “electronic communications” – first and foremost television – could its constitutional rationale also apply to justify prohibitions on appeals to vote for or against a candidate published in a book? Could the government censor books published by corporations (that would be all of them) in the pre-electoral period if they contained “electioneering”? The U.S. government’s lawyer said it could.

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

It is at that moment that the case became one about censorship generally, rather than the specific and unusual circumstances actually at issue.

The trouble is, Mr. Toobin contends, the lawyer “was wrong. Congress could not ban a book. [The law at issue] was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Prof. Adler argues that it is Mr. Toobin who is mistaken. “[T]he government,” he observes, “never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV.”

My purpose is not to dwell on the rights or wrongs of Citizens United, but to look at the way the issue raised by Justice Alito plays out in Canadian election law. Par. 319(b) of the Canada Elections Act exempts “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from its definition of “election advertising” which it sharply restricts. Québec’s Election Act contains a similar qualified exception in subs. 404(2). So, since the exemptions are qualified to only apply to books published “regardless of whether there was to be an election,” books published with a view to an upcoming election, or books the publication of which has been accelerated to coincide with an electoral campaign, would not be exempt. Overrunning the spending limits (which are exceedingly low federally, and even more so in Québec) on publishing and promoting them would be an offence, as would be not reporting these activities to election regulators. Is this the sort of restrictions on the freedom of expression we are prepared to live with?

But prof. Adler’s argument points to a still more serious problem. Even the qualified exemptions now existing do not sit easily with the rationales for the regulation of and restrictions on election spending, especially by actors other than political parties, which the Supreme Court of Canada embraced in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. Those rationales are that non-party voices must be muffled, if not quite silenced, in the pre-electoral debate, lest political parties have trouble being heard, and that the influence of money ought to be reduced, if not quite eliminated. The exemption for books seems to run counter to these purposes. Could Parliament and provincial legislatures abolish it if they felt like it? Quite possibly. Doing so would, I have argued, be rationally connected to the overall objectives of election spending regulation. It is harder to guess whether it would be held to be a “minimal impairment” of freedom of expression, and whether the courts would find that its salutary effects will outweigh the deleterious ones, but if the prohibition on publishing an ad in a national newspaper has been upheld (in Harper, as the dissenting judgment points out), why not that on a book? Once again, isn’t there something wrong with our approach to freedom of expression in the pre-electoral context if it countenances prohibitions of this sort?

So, so, so! So… what?

Yale Law School will be hosting a second annual Doctoral Scholarship Conference in December. Its topic will be “the relationship between law and the creation or destruction of social, political and economic solidarity.” I would like to go, so I got thinking about what I might write on this topic (which is not naturally congenial to me). And that, in turn got me thinking about what, exactly, “solidarity” means.

“Solidarity” has very specific meanings in some contexts. Sociology is one, according to Wikipedia anyway. Civil law is another: the Civil Code of Québec has a subsection on “solidary obligations,” which for example provides that there exists “solidarity” “between the debtors where they are obligated to the creditor for the same thing in such a way that each of them may be compelled separately to perform the whole obligation and where performance by a single debtor releases the others towards the creditor” (art. 1523). But I don’t suppose that the good people at Yale are referring to these special meanings.

To understand what they meant, it seemed more logical to turn to (political) philosophy. But the concept of solidarity just doesn’t seem to be of concern to it. The Stanford Encyclopedia of Philosophy has no entry on this concept, for example. Nor does it appear in the index of a collection of essays called Contemporary Debates in Political Philosophy edited by Thomas Christiano and John Christman. This is quite remarkable. The idea of solidarity seems to feature regularly in the political discourse (at least on the left). What is it that they’re talking about?

What I’m left with is a dictionary definition. The Oxford English Dictionary says that solidarity means “unity or agreement of feeling or action, especially among individuals with a common interest; [or] mutual support within a group.” Now these two meanings seem quite different. Unity of feeling and action might well yield little mutual support (so striking workers do not necessarily support each other, though they act together and with a common goal); conversely, mutual support need not entail unity of feeling, nor indeed the existence of common interest (members of a family might support each other despite much disagreement and lack of common interests). And I’m not entirely sure which of them, if either, the call for papers refers to.

I’d be delighted to have your thoughts on this.

UPDATE: Further digging on Wikipedia reveals that solidarity also has a specific meaning in Catholic social thought. The encyclical Sollicitudo Rei Socialis defines it as “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all. This determination is based on the solid conviction that what is hindering full development is … desire for profit and … thirst for power.” (s. 38) Again, I’m not sure just how relevant this is.

Rights and Votes

Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.

Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”

Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes  that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.

But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.

Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.

And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.

Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.

Rants and Freedoms

Some university students think the lecturer whose class they are taking is doing a lousy job. Someone creates a hyperbolically-named Facebook group to rant; others join; a few post derogatory messages on the group’s wall. So far, so normal. But, after the semester ends and the lecturer, for reasons unknown, is no longer employed by the university, she somehow learns of the Facebook group, and complains to the university’s authorities. A kangaroo court is held, and finds the members of the group ― including those who posted no messages at all, and those whose messages were quite innocuous ― guilty of “non-academic misconduct.” Some of the students are required to write an apology letter to the former lecturer and put on probation. An appeal to a higher university instance is fruitless, and the university’s Board of Governors refuses to hear a further appeal. Judicial review and an appeal ensue.

That’s the scary story of Keith and Steven Pridgen, (former) students at the University of Calgary, whose right to rant the Alberta Court of Appeal vindicated in a recent decision. One has to hope that it will serve as a lesson for professors and university administrators (as well as teachers and school principals) in the future. Students, in case such people forget, have always ranted about their professors, and always will. It’s not always nice, and it’s not always fair; get over it. (This is, as much as anything else, a note to self as an aspiring academic.) The fact that rants now leave a digital record does not change anything, it seems to me: just because they used to circulate (and of course still circulate) by word of mouth, rants were no less pervasive and durable in the past. Stories about professors are handed over from one cohort of students to the next; they are an ineradicable part of university’s environment.

Legally, the Alberta Court of Appeal is interesting in a number of ways. Each of the three judges wrote a separate opinion. They all agree in finding the university’s decision unreasonable  and hence invalid on administrative law grounds, because the university’s decision bore little, if any, relationship with the evidence it ought to have been based on ― evidence of harm to the lecturer, or of the specific actions of each accused student. Justice O’Ferrall also finds that the utter failure to consider the students’ free speech rights contributes to making the decision unreasonable. The judges disagree, however, on whether to address the other issue debated by the parties (and several interveners) – the applicability of the Charter, and its guarantee of freedom of expression.

Justice Paperny thinks the question deserves to be addressed, since it was debated at length by the parties and is important; her colleagues disagree, because it is not necessary to the resolution of the case (since it can be resolved on administrative law grounds) and important constitutional questions should not be addressed unless it is necessary to do so. Both arguments have merit; I’m not sure on whose side I would have come out if I had to vote. Justice Paperny devotes much of her opinion to arguing that the Charter does indeed apply to universities, at least in their disciplinary dealings with their students. Her review of the case law is comprehensive, her argument about the universities’ and the government’s roles in contemporary society sometimes sweeping. And it is persuasive (and Justice Paperny’s colleagues, one senses, do not actually disagree with its substance).

One final thought. The court did not pause to consider whether the university even had the power to punish students for something they wrote on Facebook. Yet it seems to me that it’s a crucial jurisdictional question. (Needless to say, the university did not consider it either.) I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment, although arguably this interest does not play out in the same way as a school’s, since everyone at a university is an adult and is there by choice. But does this interest give a university the right to police the conduct of its students off-campus or online? I think not; but in any case, it’s too bad the court did not ask itself the question.

Don’t ask, don’t tell?

No, it’s not a post about gays in the U.S. armed forces. That’s so passé anyway. Actually, what I want to talk about is co-operative federalism again, the fascinating topic of the least-read post on this blog. (To the one brave soul who did read it: I love you, whoever you are!)

More specifically, it is about the question whether one level of government in a federation has to accede to the demand of the other for information in its possession. (My title is not totally gratuitous.) This question was raised in the recent judgment of the Superior Court of Québec on the validity of a subpoena issued by a provincial commission of inquiry demanding that the RCMP hand over large amounts of information it collected while investigating organized crime in Québec’s construction industry. Coincidentally, it is also the topic of an interesting forthcoming article by Robert Mikos, of Vanderbilt University Law School.

As prof. Mikos points out, for one government (that of a U.S. state in his paper) to hand over information it has collected to the other government has certain costs. The most obvious, albeit often not a large one, is the direct cost of the time government employees spend working, in effect, for someone other than the people paying them. More subtly, citizens might be discouraged from handing over information to one government if they know that it can end up in the hands of the other. Most importantly, the government which complies with the request for information thereby participates in the enforcement of the policies of the other government, which might be at odds with its own. For example, if a state which allows the medical use of marijuana hands over information about its users  to the federal government, which does not, it possibly helps the federal government arrest and imprison the people who in the state’s opinion are entitled to use the drug. Finally, “such commandeering of the states’ information-gathering apparatus blurs the lines of accountability for unpopular enforcement actions.”

Yet so far, American courts have not accepted these arguments, explains prof. Mikos. He argues that they are wrong, and that federal requests for information held by the states should be considered equivalent to the “commandeering” of their executives by federal authorities, which the U.S. Supreme Court has held to be unconstitutional. This would allow states to resist federal policies with which they disagree and better to give effect to their own.

Compared to these high-minded concerns, the questions at issue in the Québec case, Canada (Procureur général) c. Charbonneau, 2012 QCCS 1701, might be rather pedestrian. At least it does not appear from the judgment that the federal government or the RCMP are opposed, as a matter of principle or policy, to Québec’s inquiry into the shady dealings in its construction industry and that industry’s unsavoury links with the provincial government. (Might this change if the inquiry uncovers links between that industry and the federal government, as a report by the Globe & Mail suggests it well may ?) But given the sheer volume of the information it is asked for, the RCMP is probably concerned about the costs of complying with the request, as it is with preserving the secrecy of its inquiry methods and sources. The court, however, suggests that these concerns are overstated and/or capable of being addressed by the RCMP’s co-operation with the commission of inquiry and with provincial police. As for the constitutional position, the court holds that a commission of inquiry set up pursuant to provincial law can validly subpoena the RCMP and request information in its possession, so long as it does not inquire about the RCMP’s administration. The RCMP, as the Supreme Court has held, is not part of the civil service, and does not enjoy the same immunities from provincial inquiries as the federal Crown or its servants.

Unlike, it would seem, in the U.S., such immunities do exist in Canadian law, and there seems to be no reason for their not applying to provincial, as well as federal government, since provinces and the dominion are constitutionally equal. As the Supreme Court held in A.G. of Québec and Keable v. A.G. of Canada et al., [1979] 1 R.C.S. 218, provincial law cannot authorize a provincial commission of inquiry to force the federal Crown, its ministers or servants, to answer questions or to hand over information. I would assume that the limits that apply to commissions of inquiry also apply, a fortiori, to the federal or provincial civil administration. But this is an area of the law with which I am not familiar, so I have many questions that I do not the answer to, and cannot, at the moment, investigate. For example, if the RCMP is not a part of the civil service, what other federal and provincial agencies could be forced to hand over information? How frequently does this happen? Are issues of policy disagreement between provincial and federal authorities as serious in Canada as in the U.S.?

Two observations in conclusion. First, the gun-registry data litigation, about which I have blogged profusely, is in a sense an example of a government trying to get information from another, albeit with a (big) twist, in that its claim is largely (but not entirely!) based on its own contribution to the collection of this information. And second, whatever limits there might be on what one government can force another to do, there are probably none on what they can agree to.

Religion in School 101

U of T professor Ed Morgan has an excellent op-ed in the Globe on the topic of the place of religion in Canadian public schools, which reviews the relevant case law.

Schools, he explains, cannot themselves endorse religious beliefs qua beliefs (though they can teach about them as facts): “A state agency simply cannot tacitly endorse denominational prayer, especially in a school environment.” The key reference on this point (which he does not name, according to the conventions of the op-ed genre) is Zylberberg v. Sudbury Board of Education.

However, schools may not censor the expression of religious beliefs by their students, as happened recently in a Nova Scotia case about which I blogged here, short of the expression in question becoming hate speech. That expression of belief in one set of religious canons is often (perhaps always) also the expression, implicit or explicit, of belief that (all or most) other sets of religious canons is wrong does not make it hate speech.

Prof. Morgan concludes:

In short, Canadian law generally restricts school authorities from promoting religion, even passively by holding voluntary classes and prayers. It generally does not restrict students from promoting religion, even actively by wearing it on their sleeve or chest. That’s a lesson school boards and principals need to study.


UPDATE: There are two qualifications to be made to prof. Morgan’s exposé.

First, religious speech in schools, at least by teachers (and indeed religious speech by teachers outside schools), can be curtailed not only when it becomes criminal hate speech, as defined by the Supreme Court in R. v. Keegstra, a case prof. Morgan quotes, but also when at amounts to discrimination in human rights law sense. Speech that creates “a ‘poisoned’ environment within the school system” can amount to discrimination, as the Supreme Court held in Ross v. New Brunswick School District No. 15, to which prof. Morgan also refers. Although the case is about teachers, and they can surely be held to higher standards than students, it seems reasonable to believe that school authorities have the power, and indeed the duty under human rights law, to prevent the school from becoming a “poisoned environment” as a result of students’, and not just teachers’, speech. However, prof. Morgan is right to argue that this is still a demanding standard, and mere expression of religious belief, even fervent expression, does not meet it.

And second, the Constitution Act, 1867, protects those public religious schools that existed at its entry into force. Indeed, it obliged Ontario and Québec to maintain, respectively, public Catholic and Protestant schools. The requirement is no longer in force as to Québec, following a constitutional amendment in 1997. This is an anachronism today, but in 1867, it was an essential guarantee, without which Confederation might not have happened.

Constitutional Structure and Economic Outcomes

A few days ago, F.H. Buckley, a professor at the George Mason School of Law (and McGill law graduate and former professor) published in the National Post an op-ed arguing that the Canadian constitutional system, and in particular its lack of separation of powers, serves us rather well by helping maintain a free economy and a fiscally prudent government, especially compared to “America’s second-rate constitutional system.” His colleague, Ilya Somin, has a reply at The Volokh Conspiracy, arguing that those economic outcomes would, on average, be more secure in a “separation of powers system” like that of the United States. I am skeptical of both claims. Continue reading “Constitutional Structure and Economic Outcomes”