Freedom of Expression in Canada

Two Canadian journalists are currently fighting separate battles for freedom of expression. One, a flamboyant, and over-the-top conservative publisher, is angry that he has been forced to attend a government hearing. The other, an equally flamboyant and over-the-top leftist publisher, would love nothing more than to receive a hearing from the government. In their different ways, the two cases raise important questions about the limits of freedom of speech in Canada.

Everything you might want to know about the politics of Ezra Levant can be summarized in one word: Stockaholic. That was how Levant described himself when he was a spokesman for Canadian Alliance leader Stockwell Day—the same politician who was so gaffe-prone that Mark Steyn suggested he was actually “Stockbot,” a robot created by the Liberals to discredit conservatives. After parting ways with Day, Levant became publisher in 2004 of The Western Standard, a right-wing Alberta magazine (which now operates exclusively online and with a new publisher).

Two years ago the Standard published the infamous Danish cartoons portraying Mohammed as a terrorist. This so upset Calgary Muslim Syed Soharwardy that he filed a complaint with the Alberta Human Rights and Citizenship Commission, which last week called Levant in for a hearing. Levant’s unprecedented response has been to record the proceedings and post them on his Web site. Regardless of how one feels about Levant’s politics, the videos, which have already been seen over 200,000 times, make for compelling watching.

Above: Levant’s opening statement.

The videos show Levant sitting across from human rights official Shirlene Mcgovern. She looks alternately bored and frustrated as Levant passionately objects to the state’s right to police the contents of his magazine. (Sitting beside Levant is his lawyer, who remains silent in the clips I saw). As in his Stockoholic days, there is a lot of bombast and exaggeration in Levant’s performance. On his Web site for example, Levant uses Hannah Arendt’s famous phrase “the banality of evil” to describe his experience—as if speaking to a low-key bureaucrat who might make him apologize is comparable to an encounter with Holocaust architect Adolph Eichmann.

Nevertheless, Levant has a point. His predicament recalls a controversy that occurred in Nova Scotia in the early 1990s, involving a Halifax magazine called Pandora. After a local man wrote a letter to the editor, the feminist publication pointedly informed him that the it did not publish male-authored material. The man in question complained to the Nova Scotia Human Rights Commission, and Pandora’s editors were hauled in for a hearing (which was eventually decided in their favour). Several observers commented at the time that, regardless of how one felt about Pandora’s policy, there was something wrong about the government investigating the workings of an independent magazine. The same point applies to Levant. As Alan Borovoy of the Canadian Civil Liberties Association has remarked of his case, “There should be no question of the right to publish the impugned cartoons.”

Kalle Lasn* is Ezra Levant’s Bizarro twin. Politically he’s as far to the left as Levant is to the right. But like Levant once did, Lasn publishes a political magazine in Western Canada, Vancouver-based Adbusters. Lasn also shares with Levant a tendency to make people who share his politics cringe: Adbusters once took the indefensibly step of publishing a list of prominent supporters of the Iraq war—with a dot next to the names of those who were Jewish. And just as much as Levant, Lasn is a Youtube entrepreneur pushing the cause of freedom of expression.

Above: a rejected Adbusters announcement.

For ten years Lasn has been trying to place public-service announcements on big TV networks like CTV and CanWest Global. The common theme running throughout the spots is anti-commercialism: one message for example targets McDonalds while another publicizes Buy Nothing Day, a longstanding Adbusters project. Television networks in several countries have declined the ads, on the grounds that they either criticize their biggest advertisers (like McDonald’s), or instruct viewers to turn off their TV (the spots and recorded rejections are available here). In 2004 Adbusters filed a lawsuit against the Canadian government and several large TV networks, arguing that “the public has a constitutionally protected freedom of expression over the public airwaves.”

A few days before Levant’s hearing, a British Columbia judge heard arguments over whether Lasn’s lawsuit should proceed. Currently at issue are two different motions, one by Adbusters to add the Canadian Broadcasting Corporation to the suit, and one by CanWest Global to dismiss the whole thing before it goes to trial. As a result, the B.C. judge is not being asked to rule on the rightness or wrongness of the network’s policies, but on whether Adbusters’ argument is even worth hearing.

As Adbusterslawyer puts it, “The main issue in those motions is whether it is so plain and obvious that CanWest and the CBC are not covered by [the Canadian Charter of Rights and Freedoms] that the claims against them should be dismissed without a trial.”

Like Levant, Lasn has a strong procedural case. Big TV networks have a special clout and influence, one that far outstrips Adbusters’ online presence and its magazine (circulation 120,000), and it is at least arguable that Adbusters‘ freedom of expression rights have been compromised by being denied access to such a prominent forum. Whether or not their case is strong enough to win, they at least deserve their day in court.

Once we get beyond procedure, however, and look at substance, Lasn’s case becomes murky. In the case of a public broadcaster like the CBC, it seems at least plausible to argue that it should not be beholden to big advertisers alone, and may have a responsibility to sell airtime to the buying public. A key consideration therefore will be whether Lasn succeeds in having the CBC added as a defendant.

In the case of private broadcasters, however, it is far less clear that the government should be second-guessing their decisions on what to air. If Pandora deserves to set its own policies, how can one consistently deny CanWest the same privilege? The only reason I can think of would be if Adbusters can show, one, that there is a special value in spreading a political message on TV rather than online or in print and, two, that the networks are effectively functioning as an oligarchy by locking them out. But the only way to answer these questions, it would seem, is to let Adbusters first go ahead and make its case.

Levant and Lasn have sometimes gone to unreasonable lengths to advance their respective worldviews. But in their battles for freedom of expression, the same intransigent cast of mind has seen them keep fighting, past the point at which many others would have quit. For this reason, they both deserve our thanks and appreciation, even if it is in different amounts.

*UPDATE: I originally misspelled Lasn’s last name throughout this post (two different ways, Lessen and Lassen!). My apologies.

3 thoughts on “Freedom of Expression in Canada

  1. An excellent post and I agree with almost all of it. I question thought the distinction you draw between “public” and “private” broadcasting. The fact is that in Canada, the airwaves aren’t private: they belong to the people. (The same is true of the United States). You can’t just broadcast what you want: you have to get a license and agree to a set of rules, which include setting aside time for public interest broadcasting (local and national news, political messages from all the parties, weather warnings during emergencies). So a private broadcaster can’t decided by fiat what ads they want to take: they have to follow the rules which take into account the public interest. (Which is why none of them run ads for cigarettes but all run ads for political parties). It seems like a reasonable claim on behalf of Adbusters that since the airwaves belong to the public they have a right to spread their message on the airwaves, just as any other political movement should. Why should private broadcasters, granted a special (and economically very valuable) privilege to use the public airwaves, get to decide which political messages are acceptable and which aren’t?

  2. You reference to Ezra’s days as a Stockaholic reminded me of another great moment in Levant history: when he had tee-shirts made up proclaiming “Ezra-mania.”

  3. Hey Jeet, Did you catch Levant on The Agenda on TVO last night? A remarkably blustery performance that actually kept me glued to the set. Your comment about the Ezra-mania shirts made me think about the old (well, 7 years ago) days at the the National Post. I remember him skulking around the offices, over-dressed (even then) and sweaty, looking for an editor to ingratiate himself with. Now look at him; all grown up! He’s like Canada’s own Horatio Alger of the publishing world.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s