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The Right to Free Speech is a Property Right

Posted on April 15, 2022

 

Ontario city attempts to censor expression on private land

By Tom Oriet

A homeowner in Port Colborne, Ont., is making the news for displaying a flag and door sticker that reads “F*ck Trudeau” with the asterisk substituting for the maple leaf from the national flag. We will refer to the collective display as the “flag.” Allegedly, residents complained to the city’s bylaw enforcement division and other city officers about the flag. The city claims the flag can be removed under the property standards bylaw. 

Section 3.11 of Bylaw 4299/135/02 states, 

“Exterior walls of a dwelling and their components shall be free of signs unauthorized by the Corporation of the City of Port Colborne, painted slogans, graffiti and similar defacements.”

Although the proposed order concerning the flag is unavailable, Niagara This Week narrowed the basis for the flag’s removal to “unauthorized painted slogans, graffiti and similar defacements.’” Media outlets also asked whether this is a free speech question, suggesting the contents of the flag—and not the physical attributes—caused the complaints and bylaw citation.

This article will briefly review the freedom of expression and investigate the claims with the limited facts available. For simplicity purposes, we will assume that a political yard sign, blanket, flag or equivalent are collectively “signage,” and the city would have issued the order regardless if the flag was converted into a large yard sign. We will also assume the municipality will not charge the landowner for lacking hyper-corrective grammar as a condition for keeping the sign—i.e., adding a comma after the F-word to directly address Trudeau (“F*ck, Trudeau”).

Legalizing vulgarity 

Profanity is practiced in Canada, including phrases that mimic the flag. One Canadian drove with a “F*** Harper” sign from his car. The court held that vulgar expression was protected political speech that did not undermine the purpose of protecting political expression in Canada under the charter s. 2(b). “[T]he four letter obscenity combines both content and form and is clearly an expression of his feelings toward the members of the panel and the government’s position... therefore, [it’s] an expression that falls within the protection of s. 2(b) of the charter.” Even Judge Rosborough mentioned the case would have been simpler if the sign was displayed on private land as opposed to a fluorescent sign in the rear window of a car, with the defendant intentionally cutting off other drivers to flaunt the sign.  

“Canada revoked statutory freedom of speech and a quasi-constitutional right to property when it enacted the charter.”

In another case, a sign stating “F*** China. F*** Mexico” in Niagara Parks was a lawfully protected expression because of the peaceful conduct of the display. The parks’ regulation prohibiting “abusive or insulting language” did not refer to vulgarity or controversial ideas, and instead, it referred to personally attacking park patrons. Further, the government cannot “restrict expression that is annoying, or even infuriating. People using public spaces are required to tolerate exposure to ideas with which they intensely disagree—ideas that may be inimical to their own deeply cherished commitments and choices.” In the end, the sign-owner’s trespass charges were dropped. 

Expletives have contributed to political discourse and in the House of Commons. Pierre Trudeau allegedly used the F-word against political opponents in the 1971 Fuddle Duddle scandal, and Justin Trudeau used another obscenity in 2011 against the federal environment minister. Overall, the F-word on a sign, without more, is not a fighting word provoking immediate violence, barring the speech from protection. 

The U.S. Constitutional Freedom of Speech is commonly cited in Canadian freedom of expression cases post-1960. The 1960 Canadian Bill of Rights expressly protected freedom of speech and property, but the charter, being of greater legal authority and enacted later in time, provides a legal basis for the government to restrict free speech and has no express right to property. In effect, Canada revoked statutory freedom of speech and a quasi-constitutional right to property when it enacted the charter. The old case law does remain relevant. Before the charter’s ratification, Canadian courts made the freedom to express political ideas the foundation of modern freedom of expression.  

One American case involved an individual standing outside a municipal courthouse wearing a jacket stating “F*** the Draft” during the Vietnam War. He was charged solely based on the offensiveness of the words written on his jacket. The U.S. Supreme Court overturned the charge of disturbing the peace of any person or neighbourhood, in part, because prohibiting particular words initiates the “substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” 

The Canadian Supreme Court made a similar finding: the charter protects “not only ‘good’ and popular expression, but also unpopular or even offensive expression.” The City of Port Colborne may allege it holds the tools and intellect to discriminate between legitimate and illegitimate political signage. However, U.S. judges remain unconvinced of the better-funded state government’s competency at reviewing a sign’s legitimacy or to merely verify that the signage is grammatically correct.  

Given the legal protections afforded to the F-word, does the city, in the present case, find the four-letter word on the flag a defacement, or is the name change the defacement? You can “The 1960 Canadian Bill of Rights expressly protected freedom of speech and property.” say “F*** Harper,” you can say “F*** the Draft,” but according to Port Colborne, you cannot say “F*** Trudeau.”  

The purpose of free speech 

Canadian law rationalizes the freedom of expression as freely exchanging ideas and promoting an open, democratic debate as society pursues the truth. The Canadian Supreme Court classifies political speech as “the single most important and protected type of expression. It lies at the core of the guarantee of free expression.” The U.S. focuses on how special interest groups and the political majority suppress the political minority as a means for the standing majority-voted ruler to preserve its dominance—tyranny of the majority. Most political rulers would prefer political silence to prevent gridlock or competition that could stall their agenda.  

“The 1960 Canadian Bill of Rights expressly protected freedom of speech and property.”

Although the flag’s word choice is uncouth, the government can hide political truth with a freedom of speech exception, monitoring the form or content of written criticism on private or public property. Former Justice of the Canadian Supreme Court John Cartwright expressed how every Canadian held a right to peacefully influence other Canadians to vote for a different candidate. Most political expression cases involve expression in a public place or something emanating from private land into public property. The reason is that quiet expression on private land has been an uncontroversial cultural norm in free societies, and the government normally does not limit (and consequently implicate) charter rights on private land. The flag case appears exceptional. 

Using the legal “reasonable location” test, “is the place ‘intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment[?]’” If you cannot talk about politics, exchange ideas or pursue happiness at your home, the freedom of expression is a meaningless parchment right. You cannot have legitimate freedom of speech if the most intimate, personal location is an uncertain venue to share your thoughts. The landowner is probably the most qualified person to ascertain the reasonable manner of expressing the speech. For example, the government librarians would know if someone’s whispering discussions affect library patrons, and a cemetery director can determine the reasonableness of picketing against the military at a dead soldier’s funeral. A landowner may pursue happiness in her small corner of the world when she can enforce the protection of property and the political and religious beliefs expressed on it. Practically, if a landowner cannot peacefully express her thoughts on her private land or home, she cannot express those thoughts anywhere without someone else’s approval: private third-party or governmental consents.  

“Quiet expression on private land has been an uncontroversial cultural norm in free societies, and the government normally does not limit charter rights on private land.”

This bolsters James Madison’s construction of the U.S. Constitution as granting rights – such as, free speech – and property interest in those rights. Economist Murray Rothbard found the dual defense inseparable, as in your other rights cannot exist if the legal test for unconstitutional infringements does not treat these vague, incorporeal rights in terms of tangible property. Intellectual property is akin to personality that can be created, contracted and disseminated at the publisher’s or creator’s approval. If we secure speech as property, we tangibly safeguard creativity or criticism from incriminating its author for owning those words.  

How do these principles apply to the flag? 

First, the flag looks new, so there is no need for maintenance or repair under the property standards bylaw. Second, is a political sign defacement? The flag is not painted, thus, it is not a “painted slogan.” The flag may not be graffiti since the landowner authorized the flag; meanwhile, graffiti refers to writings or drawings that are not authorized by the landowner and are scratched or sprayed onto the wall. Defacement is synonymous with vandalism according to Barron’s Canadian Law Dictionary and Merriam-Webster’s Thesaurus. However, nobody seems to be complaining that the flag makes the landowner’s house a blight or unfit for habitation.  

“Does the city consider the flag a sign that requires the city's prior authorization?”

The vulgarity was also not expressed in an erotic manner, making the speech “obscene” for American standards and limiting the freedom of speech protection. The plain language of bylaw 4299/135/02 concerns the physical attributes of the house’s exterior, and the flag does not visually match the disallowed kinds of displays on exterior walls. The municipality is probably not penalizing city residents for having other kinds of flags or signs on their property because a flag is normally hung outside someone’s home, unlike spray-paint graffiti. Since other flags can be raised in the city, the municipality may be considering the content instead of the physical characteristics of the flag, transforming the proposed order into a content-based punishment. If the maintenance, defacement and synonyms appear inapplicable, does the city consider the flag a sign that requires the city’s prior authorization, meaning political messages should be reviewed by the city before they are installed? 

The message on the flag is probably sparking the controversy, so why is the mention of “Trudeau” significant, presuming the F-word remains legally protected? The city’s member of Parliament holds affiliation with the Liberal Party. He is the city’s former city councillor and mayor, which may contribute to the city’s or community’s disdain for the flag. With the majority of Niagara Centre riding residents being Liberal Party supporters, the voting majority would disapprove of the landowner’s contrarian opposing views.  

America’s freedom of speech presumes the citizenry is more trustworthy than the government. The government can conceal the truth and tailor its laws to safeguard its self-interest, while the politically weak citizen relies solely on the truth to bolster its assertion and persuade its neighbour. Censured criticism manufactures an aura showing no opposition to the current legislative majority enforcing parliamentary supremacy – a doctrine deeming Parliamentary acts as infallible, and it can never restrict its legislative powers by enacting quasi-constitutional constraints.  

Could an order to remove the flag silence the political minorities and maintain the current administration’s positive perception? Is “property maintenance” a pretext to serve a censorious purpose? 

The municipality could achieve a censorial purpose by regulating the physical attributes of the flag. However, the bylaw would confront stricter scrutiny if it impairs free speech in proportion to the objectives of the bylaw: i.e., rectifying vandalism. In Canada, political expression has content in addition to the form that disseminates that content. Thus, a message may be infringed when the government affects the method or form of the communication. As the U.S. illustrated, freedom of speech “means little if it permits government to ‘allo[w] a speaker in a public hall to express his views while denying him the use of an amplifying system.’” 

“A municipality limiting political expression on private property hampers local political participation and discourse.”

The flag or residential signage are cheap and convenient methods for personal expression. A sign on private land conveys the message, it is identifiable to the landowner or tenant who may have persuasive force in the community, the sign owner must maintain the easily removable sign and a sign does not destroy the house’s habitability. In the U.S., municipalities have attempted to devalue political lawn signs, however, the courts have only amplified their praise for house signs as a method of political expression. Converting the bylaw infraction into a prerequisite fee to raise political signage has been considered burdensome and arbitrary. A municipality limiting political expression on private property hampers local political participation and discourse.  

Will political signage affect property values?  

A New Zealand commentator mentioned that political signage could affect property values, and the detriment to property values exceeds the “A municipality limiting political expression on private property hampers local political participation and discourse.” effect of the political message or the value of that free speech. Visual clutter and littering depreciate property values, but a house cannot reasonably be considered blight for having one political sign. The argument presupposes the government is a quasi-condominium association that should restrict political speech on private land to mitigate an unspecified loss in property values to the neighbourhood. The commentary assumes political signage holds no social worth. As an apolitical example, a New York Times contributor discussed how her family researched the neighbourhood politics when house-hunting in a new city, and the lawn signs facilitated as cost-free information. At this time, the conclusion that political signs significantly devalue property lacks substantiation and instead may help buyers, like the Times writer, make house purchase decisions. 

This case may become novel given the effects of political expression on private land and all the circumstances alluding to the flag’s contents, and not its form, as the grounds for the bylaw penalty. We must wait and see what the city’s bylaw division and landowner do, but if the news reporters are correct, the path forward may create  uncertainty for free speech and property rights. 

Disclaimer: The author does not own or possess a copy of the flag discussed in this article, and he does not endorse the contents of flag. This article must only be used for educational and news purposes. The author will not be updating this article due to changes in the news story or the law. 

Tom Oriet, Esq, LLM, EA, has law degrees from Canada and the United States. Tom is a U.S. attorney and legal scholar specializing in asset protection, estate planning and agricultural law at the Law Offices of Casey D. Conklin. He may be contacted by email at [email protected]

Published in PIPELINE OBSERVER Winter 2022