In a recent landmark case, the Supreme Court of Canada tackled the thorny issue of whether “government entities, in managing their property, [could] disregard the right of individuals to political expression in public places.” The court responded with a resounding “no.” In one fell swoop, Canada’s top court effectively knocked the wind out of Canada’s media empires, resolving that Canadians now have an expanded right to express themselves in public places. This important decision ultimately means greater participation for the average Canadian in hotly debated and controversial issues, which have been previously excluded from the realm of mainstream media discourse.
The court unanimously denounced the advertising policies of both Vancouver’s BC Transit and TransLink public transportation corporations as unconstitutional for denying two public interest groups the right to purchase advertising space on the sides of their buses. After a careful and comprehensive review of the case law concerning the freedom of expression provision of the Canadian Charter of Rights and Freedoms, the Supreme Court decided that both BC Transit and TransLink were “government” for the purposes of the application of the Charter (meaning that the public transportation entities were subject to the constitutional requirements of the Charter), and concluded that “the side of a bus is a location where expressive activity is protected by s. 2(b) of the Charter.”
The court further stated that “rather than undermining the purposes of s. 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self-fulfillment” – note that democracy, truth, and autonomy are the core principles underlying the right to free speech under s. 2(b) of the Charter. Therefore, by finding that the advertising space on the side of buses is “a public place where expressive activity is already occurring [and] is a location where constitutional protection for free expression would be expected,” the court has awarded a major victory to free speech advocates here in Canada.
As a corollary, this case has served as a successful testing ground for the media-access litigation that Adbusters Media Foundation has trumpeted for the better part of 15 years. Throughout its media democracy litigation, Adbusters has sought to test the constitutional waters surrounding the question of the extent to which Charter s. 2(b), the freedom of expression provision, applies in the context of access to broadcast media. In a series of litigation cases surrounding this very question, Adbusters has argued that the Charter should be interpreted to include the right for individuals to access broadcast media in Canada – broadcast media which operates on radio frequencies that are expressly acknowledged to be public property, pursuant to the federal Broadcasting Act.
And so, if the Supreme Court of Canada has accepted that the constitutional protection of freedom of expression on the sides of buses – which are publicly owned – is warranted, then why not also on the publicly-owned broadcasting airwaves to which private media corporations owe their livelihood? In the case noted above, the court held that “[t]he very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government-owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private, space.” In that context, then, would it not be analogous for the court to accept that television advertising using radio frequencies – which also constitutes advertising space to which the general public has access and which is by its nature a public and not a private space – would also merit the constitutional protection of freedom of expression? On this point, Adbusters’ “public space” arguments must succeed.
One hundred and fifty years ago, the great civil libertarian John Stuart Mill published On Liberty, perhaps his most well-known work. In that text, Mill expressed a profound truth about the diminishing value of human life in those societies where the diversity of opinion is silenced: “There have been, and may again be, great individual thinkers in a general atmosphere of mental slavery. But there never has been, nor ever will be, in that atmosphere an intellectually active people.” Mill was acutely correct in suggesting that societies, which encumber their people with the chains of mental slavery will not flourish intellectually. Bearing in mind that Mill wrote his treatise in 1859, there seems to be no better time than now (a full century-and-a-half later) to break free from this general atmosphere of imperial media rule, consumption memes and corporate advertising’s imprisonment of our mental environments. Support Adbusters’ efforts to bring the media back to the people.
Craig Brannagan is a third year law student at the University of Windsor’s Faculty of Law, and is CJAM 91.5 Windsor/Detroit Campus Community Radio’s Legal Advisor. He is also an advocate of community access to media broadcasting.
The Supreme Court decision discussed above is “Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component.”
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