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?

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.

Life is Wasted Without Freedom

A high school student, William Swinimer, is now suspended from his school in Nova Scotia for wearing a t-shirt with the words ‘Life is wasted without Jesus’, the CBC reports. Some people apparently find that offensive. The CBC quotes the school board’s superintendent as saying that  “[w]hen one is able or others are able to interpret it as, ‘If you don’t share my belief then your life is wasted,’ that can be interpreted by some as being inappropriate.” The authorities are now apparently trying to find a “compromise” of some sort. In the meantime, the politicians have jumped in, with the education Minister supporting the school board, and the opposition critical.

Well, at the risk of offending the bleeding hearts of Nova Scotia’s education establishment, I want to say that life is wasted without freedom. And if you can’t stand the sight of an idea that you find offensive, kindly go on and bleed. It is remarkable that in 2012 it is still necessary to insist on and to fight for the recognition of the principle that freedom of expression cannot be conditional on the failure of those who see or hear a statement to take offence. If that were the condition, no statement would be protected from censorship. I, for instance, take offence at politicians and bureaucrats denying my and my fellow-citizens’ rights. (I mean it. I do find it offensive.) What then? All I can do is try to persuade people, as I am trying to persuade you, that they are wrong. What is it that could give me the right to force them to shut up?

But, they will say, their case is different because they are public officials. They have a job to do. They must preserve a nice cozy learning environment in schools, or something like that. There a couple of things to say to that.

First, if school is going to be more than a rote-learning factory, and serve to prepare people for the outside world, it is silly to want to it to be free from any controversial ideas, including claims that some ways of living are better than others. This is especially so in high school, where the students can be expected to have the maturity to deal with unpleasant and critical ideas. If it is ok to suppress such ideas in school, is it also ok in university? Why not? There’s a learning environment to foster there, and lots of bleeding hearts who might get offended. Should we summarily fire all the ethicists and political philosophers, most law professors, and countless others who are in the business of telling people that some ways of living are better than others? Or is it enough to just prohibit normative scholarship in curricula?

And second, schools are not, in fact, free from controversial ideas and value judgments. They teach – well I hope they still do – literature for example, which is full of ideas on how one ought, and how one ought not, to live. If in a discussion of Hamlet, a student expresses the view that hesitation, reflection, and soliloquies are for weaklings, should he be suspended because the less resolute, or more prudent, of his classmates find that kind of claim offensive? Or should Hamlet just not be taught, lest it give some “insensitive” kids the occasion for offending their classmates?

Censoring offence out of existence is never going to work. But attempts to do so will stand in the way of talking about not only religion, but philosophy, politics, and art. It will make the world a very boring place indeed. Life is wasted without freedom.