The United States Supreme Court.
The United States Supreme Court. (Photo credit: Wikipedia)

Proceedings resumed on Tuesday with the claimant’s lead counsel Lord Anthony Gifford, wrapping up his submissions.

The case involves a lawsuit brought by Maurice Tomlinson, an attorney-at law and gay rights advocate, against three Jamaican TV stations that refused to air an ad promoting tolerance towards homosexuals. You can view the ad here.

Lord Gifford said that the US Supreme Court has already made it clear in their context that media houses do not have absolute editorial freedom, and invited the court to take the same approach here.

Justice Sykes: But how did they get to that conclusion?

Lord Gifford: Broadcasting, making use of restricted air space, under a government license, is different in the application of the free speech doctrine.

Justice Pusey: Is it that the application (of the doctrine in the US) is coloured by the US doctrine where they have had freedom of the press, and broadcasting developed after, while in our context we would not necessarily come to the same conclusion?

Lord Gifford: Freedom of expression, whether in media or by media, has always been protected.

Lord Gifford continued to stress the special place occupied by the broadcast media, although Justice Sykes questioned the distinction he was making between print and broadcast media.

Submitting that editorial freedom of media houses is not absolute, Lord Gifford suggested that the courts provide guidelines which the media houses could use to determine whether an ad (or other content) should be played or not.

He suggested that these factors could include:

  • The language of the constitution
  • The nature of the media outlet eg does the media house command the majority of the viewers in free-to-air television
  • The degree of intrusion on the entity’s airspace (ie the length of the submission)
  • Whether it offends any laws or regulations.

He said that once this test is applied to the video in question, the conclusion will be that the video should have been aired.

PBCJ

In relation to the claim against PBCJ, a state-owned entity that does not air paid commercials, Justice Pusey said he was having difficulty understanding how someone’s submission would come to be shown on the station.

Justice Pusey: Say it’s Champs time, if I want to send them a video saying my school is the best, do I just send it to them? (What if) the claimant was granted the right to have his video aired but others were not given that right?

Lord Gifford: You would look to the terms of reference for which PBCJ was set up. Once (the submission) falls within the guidelines, PBCJ would have to appreciate that the person is seeking to disseminate  ideas through the media so their constitutional rights are engaged. They would then have to look at the restrictions (that would allow them to refuse to air it).

TVJ’s defence

TVJ’s lead attorney Georgia Gibson-Henlin also made her submissions today.

She argued the following points:

  • Mr. Tomlinson does not have standing in the matter, that is, he is not entitled to bring the case to begin with;
  • The Charter does not give the claimant a right to sue TVJ directly in the absence of any action connected to the government;
  • The right of freedom of expression does not compel TVJ to carry the Claimant’s message;
  • The ad is not protected expression;
  • The right to disseminate information and ideas through any media is not a right to use private property of another person to disseminate one’s message;
  • The right claimed by the Claimant is inconsistent with TVJ’s right to freedom of the press and its right to exercise editorial control, revise edit of reject any ad or associate with any message or campaign.

Standing

TVJ is arguing that Mr. Tomlinson lacks standing, and that the case is not properly before the court and should not proceed. TVJ cites his own statement that:

“…as legal advisor to Marginalised Groups for the International NGO Aids Free World he has been working with JFLAG and other Caribbean LGBT groups to document abuse and other acts of violence against Caribbean Men who have Sex with Men (MSM) in an attempt to advocate for changes to homophobic laws and policies across the region.”

Mrs. Gibson-Henlin submitted that the Claimant is a what is known as a “poser” and a “tool.”

Mr. Tomlinson conceded that the ad was created as part of this campaign to change law and policy, and there was no harm to him resulting from the refusal to air the ad, she argued.

“He created the situation which gave rise to the claim. There was no threatened harm. The Claimant suffered no harm, and is being used as a tool by AIDS Free World, which has no standing and has suffered no harm in Jamaica.”

“He has not been threatened by any organ of the State and in fact the State has been helpful to him (when he was threatened by members of the public), it is difficult to see how he can allege that his rights have been infringed,” she told the court.

Justice Sykes: You are saying that this claim is not properly before the court?
Mrs. Gibson-Henlin: Yes, it should not proceed.

Applicability of the Charter to private action, that is action that has no connection with the government

This argument concerns section 13 (5) of the Charter of Rights which states that:

“A provision of this Chapter binds natural or juristic persons if and to the extent that it is applicable, taking account of the nature of the right and the nature of any duty imposed by the right.”

This is the submission on which Mrs. Gibson-Henlin spent most time and upon which she was most closely questioned by the judges.

This concerns the traditional so-called vertical application of the Constitution – that is, government to citizen actions, as opposed to the so-called horizontal application that this section is believed to have created, that is, giving a right of action to one private citizen against another.

She argued that the constitution is concerned with public law, and that the Charter of Rights has not changed that, that the purpose of the constitution is to protect the citizen against the exercise of state tyranny, and that the Charter creates no new rights and remains an instrument that creates public law rights and remedies.

Justice Pusey: So if a company has a policy of employment that discriminated against women progressing, a woman would not have any rights under the constitution? I have a feeling you would be the first attorney before the court (to challenge such a policy).

Mrs. Gibson-Henlin:  Section 13 (5) is not a blanket section. When someone makes an application, you would have to see if the right is applicable. That is, it is not of general horizontal application, it would have to be applied on a case by case basis.

She has also been arguing that there needs to be a nexus to a government action for the claim to be properly founded.

Mrs. Gibson-Henlin submitted that as the Charter is a part of a written constitution based on the Westminster model with  separation of functions of the organs of government, the judiciary, legislature and executive, it is a model which is in a category known as the top down, vertical or state action model (government to the people) as opposed to the horizontal application model (citizen to citizen) proposed by the Claimant.

Having taken the position that section 13 (5) does not create any general cause of action against a private individual or entity, Mrs. Gibson-Henlin said in skeleton submissions that:

“It may well be asked what is the purpose of section 13 (5)…It is not of general application- it is more in the nature of a threshold or application test. The court is required to determine in each case whether a particular right can be asserted against or is intended to burden the party against whom it is asserted. Further, some rights by their very nature can only be exercised by individuals, for example the right to hold a passport.”

Justice Sykes; Nothing in the Charter compels the conclusion that a pre-condition to 13 (5) is State action.

Mrs. Gibson-Henlin: The answer is in the entire structure of the document (the Constitution). The primary prohibition is in relation to organs of the state.

Justice Sykes; But experience has shown that private entities can assume sufficient power in a state so as to infringe an individual’s rights.

Mrs. Gibson-Henlin: Chapter 3 does not have general horizontal application. It may be open to a litigant to argue that some provision has horizontal application, and it is my submission that section 13 (3) (c ) (the provision dealing with freedom of expression) does no have direct horizontal application.

Is the ad a form of expression that is protected under the Charter?

Mrs. Gibson-Henlin said that not all forms of expression are protected. If a form of expression incited violence or promoted an illegal activity it would not be protected, for example.

She argued that where tolerance campaigns had been attempted before, there had been violence as a result.

Does the Charter compel TVJ to carry Mr. Tomlinson’s message?

Mrs. Gibson-Henlin argued that the Charter does not give the claimant the right to force TVJ to carry his message.

She relied here on a case called Gay Alliance Towards Equality v Vancouver Sun, where a homosexual group

Distributing copies of the Canadian Charter of...
Distributing copies of the Canadian Charter of Rights and Freedoms. (Photo credit: Wikipedia)

had alleged that a newspaper refused to publish an advertisement. The Canadian Supreme Court held that:

“(the newspaper) reserved to itself the right to revise, edit, classify, or reject any advertisement submitted to it for publication…a newspaper also has the right to refuse to publish material which runs contrary to the views which it expresses. A newspaper published by a religious organisation does not have to publish an advertisement advocating atheistic doctrine.”

Does the Charter give the claimant a right to use TVJ’s private property to disseminate his message?

Mrs. Gibson-Henlin argued that it does not. here she relied on the case of New Brunswick Broadcasting Co v CRTC where a two-year license was issued to an entity which owned newspapers, instead of the five-year license allowable. This, it was alleged, deprived the appellants of their right to freedom of expression. The Court of Appeal held that:

“The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint…It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas…”

Conclusion

“It is clear that what was going on was a march from media house to media house to set in train the exercise of coming to court,” she told the court.

Justice Pusey: But that’s what activists have done since time immemorial. The court is more concerned with whether there is a right in law, was the right infringed, and whether there is a remedy.

Mrs. Gibson-Henlin: I urge the court to recognize that the court is asked to look for harm, not someone setting up a particular agenda to achieve a particular outcome.

CVM’s Defence

CVM’s lead counsel Hugh Small began his submissions during the last half hour of the court sitting. He used the time to set the stage for what is to come, declaring that he will be submitting that the court cannot grant Mr. Tomlinson relief if in so doing CVM’s rights are infringed.

He said that nothing that will be said is a denial that Mr. Tomlinson also has rights, and that CVM operates a (media) business on the premise of freedom of expression.

He indicated that he will be asking the court to recognize that the constitution does not permit the Claimant to assert his constitutional rights to the extent that it will prejudice the constitutional rights of CVM, and that if the court grants the relief sought by the claimant, that relief will abrogate CVM’s right to exercise editorial control over the content it distributes, freely use its own property and freely decide with whom it will contract.

In what is likely to be an interesting aspect of his submissions, Mr. Small also said he will be looking at the report of the Joint Select Committee of Parliament on the Charter of Rights which exhibited what he called a

“pre-occupation to limit the role of the court and the application of chapter 3 (the chapter of the Constitution dealing with fundamental rights) to the court, and the right of the court to develop the common law.”

Mr. Small said this was:

“one of those long shadows cast over public life because not everybody accepted the developments in Pratt and Morgan (the case in which the Privy Council held that after five years on death row, a convicted murderer’s sentence should be commuted to life in prison).”

As I mentioned in my post about the first day’s proceedings, which you can read here, Mr. Tomlinson is seeking:

  • a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media;
  • an order for TVJ and CVM to air the ad in exchange for the standard fees;
  • damages.
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