13 July 2009

TID-BIT: Political adverts, expressive modes and the freedom of expression

An interesting - and, I think, robust - decision from the Supreme Court of Canada over the weekend. A successful challenge to a ban on political advertising (incl a students association "Rock the Vote" campaign) on public buses. > Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 It's particularly interesting to see the Court's analysis of whether private expression on governmental location was protected. In concluding it was, the Court asked whether the public place was one where it was expected free expression would be constitutionally protected; in doing so, it looked at "the historical or actual function of the place" and "whether other aspects of the place suggest that expression within it would undermine the values underlying free expression". Unsurprisingly, they found expression of buses should be protected, particularly as "expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment". They also ruled a total ban on political and other advocacy advertising was unreasonable and disproportionate with the desire to create a safe, welcoming public transit system ("Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society"). As the Court put it, "the policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse." But, most importantly, I think the case is a salient reminder to local authorities here, such as the Wellington City Council who last year banned political bill-stickering on the Council assets and poster bollards within the CBD during the election campaign: > LAWS179: "Bill-stickering and the Wellington City Council > LAWS179: "Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers"

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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