In the past couple of weeks there have been two worrying cases in England and in Canada which seem to demonstrate an increasing intolerance on the part of Public Bodies coupled with a willingness by the Courts to side step Free Speech guarantees in order to prevent he expression of views which "might" be offensive.
In Core Issues Trust v Transport for London  EWHC 651 (Admin) the High Court in England has upheld a decision on the Part of Transport for London to Ban an Advertisement which might be considered "offensive" to Gay People, whilst in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (CanLII) the Supreme Court of Canada has upheld a ruling that a Flyer put out by an individual could be describes as "Hate Speech" even if what it said was true. In both cases the Courts made their decisions despite Human Right protections for Freedom of Speech namely Section 2 of the Canadian Charter of Rights and Freedoms and Article 10 of the European Convention on Human Rights.
In the TfL case Core Issues Trust wanted to put an advert on London Buses which read "NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” which was a response to an earlier series of Adverts on London Buses which had read "SOME PEOPLE ARE GAY GET OVER IT". TfL however refused to permit the "Not Gay" ad despite having run the earlier "Some People are Gay" ad
Mrs Justice Lang held that:
- TfL’s decision-making process was procedurally unfair, in breach of its own procedures, and demonstrated a failure to consider the relevant issues.
- Article 10(1) ECHR, which protects the right to freedom of expression, was engaged. TfL’s Advertising Policy was a justified and proportionate restriction on the right to freedom of expression. TfL’s decision to refuse to display the Trust’s advertisement was also justified and proportionate, in furtherance of the legitimate aim of protecting the rights of others. Therefore the refusal was not a breach of the Trust’s rights under Article 10(1).
- The fact that TfL had applied its Advertising Policy inconsistently (by banning the Core Issues Trust advert, but not the Stonewall advert or the earlier British Humanist Association ‘there’s probably no God’ bus adverts, which were both “highly offensive“) was outweighed by the countervailing factors against allowing the advertisement to run, because the advertisement would cause grave offence to those who are gay and was liable to interfere with the right to respect for their private and family life under Article 8
The logic of this decision is highly worrying in particular the idea that an advertisement on the side of a bus can in any respect be considered as contrary to anyone's Right to respect for private and family life. In that respect in particular the decision is frankly perverse. Equally worrying is the suggestion by the Judge that TfL should not merely have banned this advert but should also have banned the earlier pro-gay and pro-atheism adverts shows an unwillingness to really accept the logic of Free Speech. Free Speech is not there merely to allow the expression of innocuous vacuities, it is there to protect the free expression of different often virulently different opinions.
Similarly in Canada in the Whatcott case there seems to have been a lamentable lack of understanding of the real concept of Free Speech as it is (supposedly) protected under Section 2 of the Canadian Charter
Mr Whatcott had been distributing Flyers attacking what he saw as the "Gay Agenda" in the Schools of Saskatchewan and indeed Canada (samples of his Flyers are annexed to the end of the Supreme Court Judgment ) and relied in many respects on the accuracy of what he said and the protection of s2 of the Canadian Charter.
In a particularly worrying section of the Judgment the Supreme Court of Canada says
"140: not all truthful statements must be free from restriction. Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech."