Broadcast Politics and Limits to the Freedom of Expression: An Interview with Marc Raboy
Transcription by Nick Weaver
Issue #74, December 2005
Since moving to Canada in July 2004, I’ve had to rethink some of my comfortable positions developed over my life as a U.S. leftist. One of the pieties of left wing politics in the U.S. is free speech as the cornerstone of a free society. In Canada, it plays a little differently. In the U.S., one finds the ACLU protecting the rights of the KKK and the FCC obsessing over nipples on the airwaves. Here, one finds a variety of hate speech laws on the books, and a broadcast regulator willing to crack down on racist and sexist material on the airwaves. In a recent well-publicized case, CHOI, a Quebec radio station (Canadian stations begin their call letters with a “C” instead of a “K” or “W”) was denied an application to renew their license because the Canadian Radio-Television and Telecommunications Commission (CRTC -- the Canadian analogue of the FCC) determined they had broadcast harmful content. I grabbed a few minutes with my colleague Marc Raboy, Canada’s leading expert on media policy and media governance, to talk about the decision and its implications.
J.S.: Describe the lead up to the recent CRTC decision about CHOI and the controversy surrounding hate-speech on Canadian Radio.
M.R.: This station was first licensed in 1997 if I’m not mistaken, and they very quickly established themselves as the market leader in Quebec City by doing some pretty adventurous musical programming. But they were notorious for the tone and level of discussion held by one particular talk show host who, for the purposes of your readers, we could compare to Howard Stern in the United States in some respects. This broadcaster’s stock and trade was making very controversial comments about local people, and that’s an important distinction from the Howard Stern kind of approach. He wouldn’t just attack the Prime Minster or George Bush or something, but the local weather girl and talking about her physical attributes. Or talking about the local African students at the local University as being the children of cannibals. Or the local mental patients at the local hospital saying “why don’t we just flush these people; they aren’t really alive anyway.” It was pretty abusive commentary, and popular among a certain following. At the same time it was very troubling to people in the community. And so, a number of individuals who had been personally attacked, such as this particular weather women, as well as local institutions like the University, among others, filed complaints with the CRTC. That’s the normal procedure for getting the regulator to look into something. The CRTC will not on its own look at a particular broadcaster’s content; they have to be alerted to it by a complaint. In the early 2000’s, around 2001-02, the CRTC had accumulated a file of complaints against CHOI to the point where they decided to hold a hearing. After examining the transcripts of the broadcasts for which complaints had been made, the CRTC decided to renew CHOI’s license for a limited period but they imposed a set of conditions, the most important of which was an agreement not to broadcast abusive content. And there was actually a code of about 10 points, that spelled out the kind of programming which they considered inappropriate. CHOI agreed to the conditions.
But nothing changed. During the ensuing 2 year period broadcast continued as before and the file of complaints grew. So when CHOI’s license came up for its normal renewal at the end of this temporary period, the CRTC decided not to renew it because of CHOI’s noncompliance. The Broadcasting Act says that all broadcast programming in Canada should be of “high quality” [which is an interesting point, since Canadian television is considerably more permissive in terms of its presentation of sex, drug use, and other activities severely curtailed on US broadcast TV; high quality does not necessarily mean “tame” or “bland” -- JS]. The CRTC decision reiterated that a broadcasting license did not give someone the right to abuse members of the community, and that people have at a right to their dignity, and cited lengthy examples such as the ones I gave (and others) as justification for the non-renewal.
I think it’s important to note that it was a non-renewal rather than an active pulling of the license. The case has often been misrepresented as the CRTC revoking CHOI’s license. The license expired, they applied for a renewal (which is the normal procedure) and the CRTC said “no.” At the same time, actually, literally in the same breath, they called for new applications. There was nothing which would have prohibited the outgoing license holder from reapplying. Others, also, could have applied and a license presumably would be adjudicated according to new conditions and so on and so forth, and presumably CHOI would not have been awarded the license unless the agreed to change. But it didn’t come to that. CHOI immediately filed an appeal in the Federal Court of Appeal, which is one of the procedures for appealing a CRTC decision if you feel your case has been mishandled by the CRTC. CHOI claimed that their freedom of expression had been violated.
The Federal Court rejected the appeal. The judge said the CRTC was completely within its jurisdiction to not renew the broadcaster’s license. [In Canadian law], a broadcasting license is not a right but a temporarily accorded privilege. Although he didn’t need to rule on the substance of aspects of the case (it was clear enough), he did say that it is ludicrous to argue, as CHOI did, that the CRTC should accommodate abusive attacks on individuals’ and collective groups’ dignity.
The judge writes:
“The appellant makes much of the guarantee of the freedom of expression […] and seems to want to treat it as unqualified, something the court has never recognized. I do not think I am mistaken in saying that freedom of expression, freedom of opinion and freedom of speech do not mean freedom of defamation, freedom of oppression and freedom of opprobrium. Nor do I think I am mistaken in saying that the right to the freedom of expression under the Charter does not require that the state or the CRTC become accomplices in, or promoters of, defamatory language or violations of the rights to privacy, integrity, human dignity and reputation by forcing them to issue a broadcasting license for those purposes. To accept the appellant’s proposition would mean using the Charter to make the state or its agencies an instrument of oppression or violation of the individual rights to human dignity, privacy and integrity on behalf of the commercial profitability of a business.”
J.S.: So what was your role in the controversy?
M.R.: When the initial CRTC decision came out there was a flurry of newspaper editorials saying; “this is ridiculous, who are these faceless bureaucrats to tell Canadians what they should listen to? This is a popular station. That should be good enough and we believe in freedom of expression.” At that point I was irritated by these editorials and wrote an op-ed piece saying that the CRTC was doing precisely what the CRTC was there to do, which was to determine, according to established criteria, who should get to hold a broadcasting license. It’s perfectly normal for them to look at performance issues when a license comes up for renewal. It’s not an issue of freedom of expression because you or I cannot simply broadcast on an over-the-air radio station any time we want. We have to be invited on by someone who has been given a license by the CRTC. This is the way it is everywhere in the world. There is no other way to maintain traffic on the airwaves. [Which is to say, you need some agency to set criteria and make decisions concerning who will be allowed to broadcast in a given country because the airwaves are a limited resource.]
Having said that, I also said that freedom of expression is not an absolute freedom. It has to be contextualized with respect to other freedoms. I was later invited to be an expert witness for the Department of Justice and the CRTC in the appeal case and I wrote a paper on the rationales and the justifications for broadcast regulation. Doing the research for that I discovered that the Canadian position is very common in Europe. I found lots of European policy and legal documents which contextualized freedom of expression in this way. That’s very, very different from the American first amendment position which says that freedom of expression is an absolute right, as I understand it anyway, and nothing can be allowed to attack that.
J.S.: Yeah, barring yelling “fire” in a crowded theatre, or slander.
M.R.: Well that’s interesting because the CHOI case can to a certain extent be compared to yelling fire in a crowded theatre. If you foment opinion that could result in a pogrom or a lynching of certain segments of the community or if you make certain comments about an individual which makes it very difficult for her to walk down the street and buy a loaf of bread without being subjected to snickers and abuse, you’re in the same territory as inciting panic in a theatre. These are not even public figures even who are being attacked, just someone who CHOI’s shock jock decided he was going to attack that day.
J.S.: As an American this was a really eye-opening decision for me because my experience both with American policy-making and with the U.S. left has been that free speech absolutism is the orthodoxy. The argument is that you can’t have a just society without very, very strong free-speech guidelines. Of course you’ve no doubt heard the whole argument that the way to deal with hate speech is to let it out and then confront it and deal with it that way. But clearly that’s not what you’re arguing for, right? You don’t necessarily see that position as the way to go.
M.R.: To my mind, a statement that can potentially result in people going out the next day and taking violent or abusive action against particular members of the community because they’ve been stirred up in this way, I find it really dangerous. One of the things that the broadcaster argued was that “if we are in any way violating hate laws then prosecute us under hate laws, don’t take away our license.” The CRTC replied that “we are not the arbiters of whether or not you are violating hate laws; we are the arbiters of who gets to use the public airways. And so, what you are saying may very well be legal if you were to write it on a pamphlet or cry it from a soap box, it’s unacceptable on public property that our role is to supervise and oversee.” It’s very interesting that while CHOI’s appeal was going on, the weather woman I referred to earlier actually took a civil action against the shock jock and the station and won $350,000 in damages. So while there are hate laws in Canada, CHOI was not been prosecuted under these laws; they’ve been prosecuted under civil action.
J.S.: Let me ask a more focused question. A) Do you think that hate speech laws work, and B) in what ways do you think they should they be applied with regard to regulating the airways and broadcasting and licenses?
M.R.: I think the hate laws work, to a certain extent. I don’t know of any instance in which Canadian hate laws have been attacked on any other basis than someone saying; “there should be no hate laws.” No one has ever suggested that someone or some organization who has been prosecuted under the hate laws has been persecuted. The laws have been used very parsimoniously, if not exclusively, for Nazi propaganda and holocaust denial claims. But the hate laws are not as specific as, for example, the German laws which specifically prohibit certain speech about Nazism. The Canadian hate laws prohibit speech which can lead to violent action being taken against an identifiable social group or ethnic group.
J.S.: So how does that play into how we ought to be regulating broadcasting and the airwaves?
M.R.: That’s a really interesting question. If you tried to actually legislate to get a result like the result of the CHOI case -- but not all kinds of other results that you might end up with a really nasty regulator who wants to legislate the meaning of “quality” programming.
J.S.: That’s interesting how the quality thing got interpreted. To me I read it like a pretty straight forward hate speech case. But if you’re using the quality regulations the question is if you’re going to start regulating Canadian broadcasters who violate some standards of… it’s funny, I mean, the right has this sort of monopoly on the term “decency”…
M.R.: …in the United States. I mean we’re not even close to any other station being even mildly in trouble because of this. This was a really extreme case and the regulator used the tools that it had to do something about it. In one sense I’m inclined to say; “this is good enough, I’m happy that there is a vague line in the broadcasting act that enables them to go against an extreme case.” I could very easily foresee a situation where they could go against the case where my position would be the opposite. But I haven’t anything in the behavior of the CRTC to indicate they inclined that way. They really don’t want to get involved in content and this was a case where the really felt that they had to.
J.S.: Ideally, what would be the impact of this decision in terms of behavior by broadcaster?
M.R.: I’m sure it will have a chilling effect on this type of broadcast. I think broadcasters who are inclined to do that type of sensationalist, shock-jock broadcasting will now look carefully at what they’re doing. I think they will probably respond very quickly should the CRTC raise the red flag upon receipt of complaints. What makes this case so extreme was CHOI’s noncompliance over a period of several years; the complaint file is very thick. For CHOI, hate speech was a business plan. It was their marketing strategy. They got on to something, there was an audience for it, they were going to pursue it no matter what the CRTC said, and they got in trouble, their plan was to make it a freedom of expression argument.
It doesn’t really upset me if commercial radio stations have to adjust their business plans to conform to the CRTC’s or the court’s ideas of the limits of how abusive you can be to people’s dignity. But we also have to really think seriously about a certain regulatory approach that is being put into place and recognized and approved by the courts. When you come right down to it, the regulator can refuse to renew a license on the basis of content that it deems inappropriate. At this point there is no indication that the CRTC has any intention to go in that direction, but it is an important precedent.
is Beaverbrook Chair in Media, Ethics and Public Policy at McGill University.
Jonathan Sterne teaches in the Department of Art History and Communication Studies at McGill University and is an editor of Bad Subjects.
Nick Weaver is an undergraduate at McGill with an interest in medical anthropology and media.