The legal decision for Adbusters v. CBC just became available to read, and it’s… interesting.
The case, in brief, is thus: Adbusters, which for those not aware is a public advocacy organization with an anti-consumerist bent, tried to buy advertising time on Global Television and the CBC for their “buy nothing” ads. CBC aired one of them once; Global refused to air any of them. Adbusters then sued both of them, saying that the two had violated their Charter right of freedom of expression by not airing the ads. (Press release here.)
“But wait,” you say, “only the governments of Canada and the provinces and their various creatures of law, such as territories and municipalities, are bound by the Charter.” And in this you are correct. Adbusters attempted to argue that the CBC is a governmental body by virtue of the fact that it’s a crown corporation, but that one fails the smell test pretty quickly; simply being funded by the government doesn’t automatically qualify an organization as a creature of government. Universities are publicly funded, and they’re not subject to the Charter either – the Charter‘s primary purpose of existence is to define the protections Canadian citizens have from the government. (Which, incidentally, for those not well-versed in Canadian constitutional law, is a huge topic of debate – the argument over the worthiness of negative freedoms versus positive freedoms is continual and ongoing. And loud, at least within a law school.)
So that argument was bad, and it probably tainted Adbusters’ (IMO) better argument: that since the airwaves are public, broadcasters are de facto maintaining a public resource. If Adbusters had gotten the judge to agree on this point, it wouldn’t be inconsistent with existing law either; Canadian jurisprudence recognizes that private organizations performing governmental duties are subject to the Charter. (Hospitals are an excellent example: most are privately maintained corporate bodies, but as the primary deliverers of government-funded health care in Canada, they’ve voluntarily undertaken a statutory duty and are thus agents of the government. Witness the difference between this and the CBC – there’s no legislation saying there has to be a CBC, after all, as any number of right-wing media watchdogs will complain repatedly.)
Of course, the judge struck down that argument too – I won’t get into the details, but suffice it to say Adbusters didn’t have a good argument for suing private entities, and the judge was referring to Canadian caselaw that I’ve studied in a first-year constitutional law course, so you know this wasn’t exactly advanced legal reasoning here.
However, there’s probably a case to be made for suing the government, because the government’s the one putting this policy (or lack thereof) in place which restricts public expression on the airwaves. The problem here is that Adbusters asked to add the CRTC as a defendant, and the CRTC isn’t a crown agency. It’s an unincorporated commission. In Canada, if you want to sue the federal government, you’re suing the Crown (or, well, Parliament really, but you get the gist) or an agency it’s created under statute and given power (the Army, the RCMP, et cetera). The CRTC isn’t a creature of statute, hence you can’t sue it. This was honestly kind of a dumb mistake (and in the writeup of the decision, I note that Adbusters withdrew the motion to add the CRTC as a defendant when the judge pointed this out, which is as close as the legal world gets to an admission of having fucked up).
So, moral of story: Adbusters is currently trying to portray the failure of their relatively weak (and in at least one respect pretty stupid) line of legal attack as a victory for the status quo. They’re obviously going to appeal the decision; if they’re smart, they’ll attempt to add Parliament or the Ministry of Heritage as a defendant, because that’s who they should be suing. However, the problem with Adbusters is that although I happen to agree with a great deal of their politics, they are sadly a bunch of self-righteous schmucks who think they’re a lot more clever than they really are.
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Anytime Adbusters is mentioned, I feel the urge to pimp The Rebel Sell.
Heh, this makes me happy to study American cases.
…oh wait. I don’t understand ours either. Crap.
I’ve read the American cases more extensively than I’d like, and trust me, there’s nothing to understand.
All you need to know is that the FCC has exclusive jurisdiction over the spectrum, which is owned by the government, and since it’s only useful as a regulated, limited resource, and therefore some content restrictions are inevitable, it’s to be allocated based on usefulness-to-the-public, which means that they can dole it out however they feel like and that free speech is not really an issue.
The result is that good spectrum goes to the military, crappy spectrum goes to amateurs, less-crappy spectrum going to licensed commons use like WiFi, and anything decent goes to the highest bidder. There, now you know everything there is to know about U.S. spectrum policy.
Thanks for that, Adam.
My brain tried to run off while I read, but I managed to trap that little bastard right quick.
Although the history of the FCC is kind of funny, in a morbid way — the future President Herbert Hoover actually ran the pre-FCC organization and wanted exclusive licenses over the spectrum, but Congress wouldn’t give him the authority to give them.
So Hoover said “OK,” and went and did it anyway.
Then various groups started “spectrum-hopping” to crowd out rival stations, and Hoover couldn’t get them to stop, because he couldn’t get his decisions enforced.
So basically, he struck a deal with the head of Zenith for Zenith to file a lawsuit against Hoover, which Hoover conceded, and then just stopped regulating broadcasting at all. Predictably (and as Hoover had planned), the industry degenerated into complete chaos almost immediately as everyone just tried to digitally shout over their rivals, and for some time (months), no one had any radio use at all — until Congress came back to Hoover, hat in hand, admitted they’d been pwned, and voila! The FCC!
Also, here are my notes from my Telecom Law class, on the previous subject:
That’s basically the state of things, despite some small token movements, largely based on the credibility of the success of WiFi. We’ll know a lot more here when we find out how the spectrum bidding just recently shook out. They’re coming up on the end and that’ll pretty much define the space of the industry for the near future.
[…] discussing the Adbusters case previously mentioned here in class, my constitutional law professor sent me an email elaborating on the subject, and since I […]