Friday, November 16, 2007
How many Montreal Municipal Court judges does it take to screw in a lightbulb?
Only an arch-libertarian would argue that rights such as freedom of expression are absolute, and determining their application is often a very tricky balancing act. On the other hand, sometimes it's not, and the authorities still get it wrong.
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So it was. I've linked to a different article on the same story.
Well, there is a reasonable (if, perhaps not correct) explanation of that ruling. It's that if the bylaw weren't upheld the person could advertise on the space in a way that degrades the neighborhood and contravenes the property's zoning. However, you'd think that zoning law would cover that.
Of course the judge didn't mention that and instead had a stupid explanation.
That is completely retarded. It's what I like to call a libertarian double-whammy, which basically means that the judge is double-retarded.
The defendant's freedom of expression AND his private property rights are being infringed upon.
He owns the garage, so he should be able to do whatever he wants to it, including renting it out for ad space. As for freedom of expression, there are very few reasonable limits that the government can impose. In fact, the only one that comes to mind is the Official Secrets Act, but as far as I know, this only applies to government personnel.
This dude should put up a caricature of that judge pissing on the Charter to replace his flag...
1. I think the judge's ruling may have been right in its decision (though his defense of the bylaw is idiotic). It sounds like the person's actions did contravene the bylaw. The only recourse for the individual here seems to be that he appeal to Quebec Charter or Canadian Charter rights. I'm not sure whether a municipal court judge in Montreal has the authority to interpret at that level. If he does not, this ruling seems appropriate. If he does, then I'd like to see if the person's lawyers bothered to raise Charter rights.
2. I dispute your statement that "Only an arch-libertarian would argue that rights such as freedom of expression are absolute". I could agree with "should be absolute". However, if one reads the first amendment of the U.S. Constitution, one reads (emphasis mine)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
If one believes that the Constitution should mean what it reads, then I think in the U.S. context that freedom of speech is absolute (whether or not it should be) and one doesn't have to be an arch-libertarian to believe this.
Yep. We wouldn't want property owners to think they have rights, would we?
I also don't see anything wrong with his decision - it seems a needlessly restrictive law, though. What constitutes a "sign", anyway? Could I paint a rainbow and a care bear on my garage door, but not a Greek flag?
Also, Paul: as a Libertarian, don't forget that other people have freedoms as well. I tend to believe that your freedom should be absolute until it infringes on someone else's freedom or wellbeing. If your garage door is plainly visible from the street, it's not just your own business any more, because I can't really avoid looking at it, can I? And that's where the community has to agree on standards.
That said, I believe they should err on the side of freedom. A horrifyingly ugly scene of a deer before a sunrise? Sure, go right ahead. A naked woman with improbable proportions perched on a Harley? That's where the discussion gets interesting.
Yeah, god forbid anyone should endure the "ignoble" experience of having to occasionally look at the Greek Flag.
Traditionally (at least in modern tradition), the only times when infringements upon freedom of expression has been deemed justifiable is when it's deemed to either be obsene (and even then it's a difficult sell), or dangerous ("shouting fire in a crowded theatre").
The Greek Flag mural in question is neither of these things. The law may be the law, but the Charter of Rights is entrenched in the Constitution, which is the highest law in the land.
The judge's ruling is wrong because it's remiss vis a vis the freakin' Constitution.
Well, it's not that simple. When is something actually an act of speech, and when is it just a question of agreeing on community standards of aesthetics? Many historical towns have regulations regarding signage and what you can and can't affix to your building, such that the ambience of a town- on which a lot of business depends in, say Heidelberg in Germany- is preserved. Does that infringe on your freedom of speech?
It's tempting- and time-saving -to speak in absolutes or near-absolutes when it comes to central values such as freedom of speech, but if you're human, you better get used to making judgments in the face of ambiguity. No principle, however nobly motivated, will always apply.
Interesting idea. In that vein, maybe we should pass a law against those Gator slippers so many people like wearing.
I mean, Aesthetically, they look ridiculous. Apparently that's supposed to be enough now.
Consider this: you can take a naked picture of yourself and either post it on your website, or send it to my cell phone. The former is an act of free speech, and the latter is an act of sexual harassment. I can no more avoid seeing you naked when you send me a picture on my cell than I can avoid seeing a potentially offensive political message written on the outside of your wall.
And if you now argue that there's a difference in severity or offensiveness that needs to be considered, well, that's exactly my point: the community decides.
Catrin,
1. Your point about dress codes doesn't apply here: freedom of speech is a right one exercises in face of government attempts to restrict your speech. It gives one barely any power when your speech or expression is restricted by a private party. We're talking about government, not private enterprises.
2. As for the sending of a naked image to your cell phone, it doesn't necessarily become harassment. Motive, the details of the picture, your relationship with the person sending the image, etc. all go into the calculus of determining that. This isn't a criticism of your point about community standards. But jurisprudence (at least in North America) when it comes to a sign on a wall, etc. takes in similar details. A law against signage isn't necessarily valid just because the community decides it isn't acceptable. Community standards are part of the calculus; the facts of the case are part of the calculus; and the deference afforded to freedom of expression in the face of restrictions is part of the calculus. That's the whole point of rights: to limit the ability of the community (through government) to set standards.
- Mustafa Hirji
Mustafa,
1. that's very odd. I started writing about dress codes, but then deleted that part of the comment. I'm not sure why it still shows up for you. I'd also mentioned that obviously, that was a private business, but that in a similar vein, the UofA has a dress code that applies to attending convocation ceremonies. How do you feel about that?
2. Agreed. But, once again, what those limits are is largely decided by the community at the time of the creation of those rights. And after their creation, the literal wording of those rights is interpreted according to community standards of the time(Hello, Charter!).
My point: there are no absolute moral truths out there that can be discovered in a laboratory, and human life is all about ambiguity and negotiating community standards at different levels of government - even when it comes to freedom of speech.
Even shorter: Don't be a zealot, and don't go walking through life with a list of unalterable ideologies. Think, discuss, choose, repeat.
(That imperative being directed at humanity in general)
1. The part about dress codes is gone now. As for the University, I don't think the University counts as part of the government, so I don't think freedom of expression protections apply. If they did, Convocations are held on private property rented by the University, and so I think they'd get to set the rules there like any other owner of property (much like, I'm sure, one can't go into the Parliament Buildings and deface the walls and artwork there as a statement because that's the property of the government).
2. Disagree. "Freedom of Expression" within "reasonable limitations consistent with a free and just society" doesn't give any kind of precision to the limitations. And the Charter certainly isn't interpreted according to community standards at the time (just take a look at the Morgenteller resolution, or same-sex marriage jurisprudence—both cases where the statements of the framers were _explicit_ against the Charter enabling those sorts of social changes).
The limits are determined by a balance of legislation (which act as a proxy for community standards), jurisprudential principles used in past cases, judicial interpretation of what make sense as "reasonable limitations" of those rights (i.e. not what the community or government things; but impartial judges), and the facts of the case at hand (the timing, the context, and the substance of the expression are all facts that need to be considered).
Think about it: if community standards determined freedom of expression always, rights would mean nothing. The community can already determine it's standards through electing a government to create laws to enforce those standards. Rights exist in order to PREVENT community standards from reigning supreme. Rights allow the minority to beat out the community sometimes. E.g. rights allowed abortion to become more widespread in Canada and the U.S. in opposition to the majority opinion in the relevant jurisdiction. Rights forced the end of segregation of schools in Kansas when the community felt otherwise. More recently, rights forced the expansion of the definition of marriage in several provinces while people in those provinces were still largely split on the issue.
I agree that in the Canadian context (unlike, arguably, in the U.S. context) absolute rights do not and should not exist. But community standards isn't the determining factor. It is merely one of many factors that determines the balance. And rights always shift the balance away from community standards towards the absolutist position, but almost never all the way.
Finally, I don't know if we can say that we can't figure out absolute moral truths. We certainly haven't found them yet, but we may in the future.
- Mustafa Hirji
I disagree that just because something isn't the will of a majority of the people, it is not a product of community standards and negotiation. Our political and judicial structures distort some outcomes- sometimes for the better, and sometimes for the worse.
I guess I just don't see how you can look at the judicial system and principles as a category outside of community standards; I would argue that they're nothing but institutionalized versions.
You can't take something that isn't the will of the majority of the people and call it a community standard.
That's called elitism, and I remember a time when most people used to agree that was bad.
There's a definite problem with legal standards when they contradict more highly-held legal standards, and a good number of people can't find it in themselves to say "boo" about that.
It would be one thing if one were to try and argue that they can justify the obvious restrictions on this property owner's freedom of expression. The Charter allows for reasonable restrictions. Given the rather benign nature of this particular expression, however, that would be a tough sell.
Ok, I see where you're coming from Catrin. To some extent, I agree that the principles underlying our rights are the product of community ideals: we as a community believe such ideals as freedom of speech, equality before the law, and the right to vote are important and so we've enshrined them as principles. I would refer to these as "ideals", however, as opposed to "standards". I make this semantic point deliberately: standards, as I understand them, are the compromises that we create to deal with the murky morass of difficult real-life issues—they're the line in the sand that we draw in order in order to organize society; ideals, on the other hand, are principles—they're clear, theoretical and divorced from real-world application, and a clear and apparent line in the landscape of the world.
The right of free expression is an ideal: it's a theoretical principle, cannot easily be implemented in a real-world context, and it is very clear if speech has been restricted or not.
Laws restricting expression are a standard that the community has set in the real world: it's not clear where the line should be drawn, and where it is drawn is defined largely by the need to make realistic compromises. As you noted in an earlier comment, a community standard is what a community "has to agree on" in the "face of ambiguity".
And where minorities disagree with the line in the sand that the community has drawn, they go to the courts and try and use our ideals enshrined as rights to get the line moved closer to the clear ideal.
If you want to define "community standards" differently, I suppose that's fine. But I don't think it would be really consistent with everyday usage of that phrase. For example, I think it's pretty clear that the public in Canada overwhelmingly finds child pornography repugnant. However, freedom of expression protections have ruled invalid attempts to criminalize it's creation (except where children are harmed in the process), possession, and publication. In everyday speech, would we say that it was the community choice to undo the overwhelming majority's preferred laws? Or would we say that the Charter prevented the community from imposing their will? I'm pretty sure most would think the latter.
But as long as long as we've defined our terms precisely, I guess it's ok either way.
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