© 1992 Karen Selick
 Free Expression Does Not Imply Free Lunch
An edited version of this article first appeared in the February, 1992 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Free Expression Does Not Imply Free Lunch

If you plaster a bunch of posters advertising a rock concert or political meeting on utility poles in Ontario or Alberta, you can no longer be prosecuted for violating a by-law.  You're simply exercising your freedom of expression.  In British Columbia, you can still be prosecuted.  That's the situation following a flurry of recent court decisions about public property and freedom of expression.

In a similar vein, the Supreme Court of Canada held recently that the Charter right to freedom of expression allows a political group to distribute pamphlets and solicit memberships at Montreal's Dorval airport, even though airport regulations forbid it.

The peculiar part about all this is that the courts seem to have taken it seriously whenever litigants have claimed that these cases involve freedom of expression.  It has obviously been too many years since our judges wrote their law school exams.  Except for two judges in Vancouver, none of them were able to sniff out and discard this unambiguously red herring.

The freedom of expression guaranteed in our Charter of Rights is designed to protect the content of what people say from the censorial tendencies of government.  It is not designed to provide people with material resources to spread their message if they should happen to consider their own private resources insufficient for that purpose. 

The anti-postering by-laws were silent on the subject of content.  They prohibited all posters, not just those with a particular slant or message.  They were designed to prevent an eyesore and save taxpayers the expense of cleaning up shredded posters from utility poles and gutters.  The airport regulations were similarly impartial to content. 

If the municipalities had tried to prevent people from affixing sexually provocative posters, while allowing posters about an anti-pornography rally, then we would have had a freedom of expression case.  If the airports had tried to prevent pamphleteers from advocating the use of marijuana, while allowing others to advocate the death penalty for drug pushers, then we would have had a freedom of expression case. 

What we have instead is quite a different issue: how much public property can any individual arrogate to himself, and for what purpose?  This could be (and probably will be) the subject of a whole future column of its own.  Here, I want to concentrate on some peculiar judicial reasoning.

A common thread in the red herring judgments is exemplified by a paragraph from Madam Justice L'Heureux-Dube's opinion in the airport case:  "If members of the public had no right whatsoever to distribute leaflets or engage in other expressive activity on government-owned property...only those with enough wealth to own land or mass media facilities...would be able to engage in free expression."

This is at best a careless exaggeration; at worst, a gross error.  One might similarly express the fear that only those with enough wealth to own land will have shelter.  The reality is that you can rent land, or mass media facilities, for only a tiny fraction of what it costs to own them.  This explains the existence of billboards and newspaper advertisements.

There are many opportunities in our society for those with unorthodox views to make themselves heard at no cost whatsoever.  The positions I take in this column can hardly be described as mainstream, but I don't pay Canadian Lawyer for the use of their back page every month; on the contrary, they pay me. 

There is in fact a thriving market for unusual and provocative news and opinions, provided they are expressed in logical, coherent form.  Editorial page editors, newscasters and talk show hosts are forever seeking interesting commentary. 

When different groups whine for subsidies so they can share their ideas with the world, we have to question which is the horse and which the cart.  Are their views doomed to obscurity because they have no money, or do they have no money because the marketplace of ideas has determined that obscurity is the proper place for such views? 

But suppose Her Ladyship were correct: suppose money translates directly into freedom of expression.  Will allocating public resources ensure that any greater quantity or variety of expression gets heard? 

If members of the public have to pay additional taxes for poster and leaflet cleanup or airport security, the resources left in their hands for private financing of free expression will be diminished.  Some forms of expression will simply oust others.

Worse yet, there is no guarantee that it will be the weak and powerless who benefit from the public subsidization of free expression.  In fact, the opposite will probably be true.  If public property can be used by everyone, it is the wealthy and powerful who will usurp the greatest share.  They can afford to print up more leaflets and posters.  They can afford to hire paid employees to stand around airports distributing their material, instead of relying on volunteers. 

To accomplish the levelling effect that Madam Justice L'Heureux-Dube desires, we would have to impose a means test, and allow only the underdogs of society to use public property as a forum for disseminating their views.  Then we'd have a freedom of expression case, for sure.


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