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.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.