LAW343C.001 Topics in Public Law: Freedom of Expression
SYLLABUSLAW 343C. 001TOPICS IN PUBLIC LAW:FREEDOM OF EXPRESSION2022-2023SPRING TERMTUESDAY 11:00-12:30THURSDAY 11:00-12:30ROOM 122UPDATED JANUARY 1, 2023
WARNINGThis course involves highly political as well as sensitive issues. Some of the issues covered a highly political and controversial issues raising public safety concerns. Some of the issues covered is highly offensive and hurtful. We will discuss all these issues in order to learn about the limits of freedom of expression protection under the Charter. I don’t have any intention of offending or harming anyone or provoking the disruption of public safety. Please be prepared to discuss and participate in the discussion as legal questions as lawyers. Please also be careful to be respectful for other participants as well. Also, if you are a foreign exchange student, there might be some concern for participating in this course and discussing some of the issues in the class. Please pay extra care on any possible restrictions in your jurisdiction. If you have any concerns with some of the issues, please notify me. ACKNOWLEDGEMENTUBC’s Point Grey Campus is located on the traditional, ancestral, and unceded territory of the xwməθkwəy̓əm (Musqueam) people. The land it is situated on has always been a place of learning for the Musqueam people, who for millennia have passed on in their culture, history, and traditions from one generation to the next on this site.COURSE INFORMATIONCourse Title Course Code Number Credit ValueTopics in Public Law: Freedom of Expression LAW343C.001 3
PREREQUISITESThere is no requirement to take this course. It would be wonderful if you have basic understanding of the Canadian Constitutional Law, especially freedom of expression. But we will start from the basics and anyone who does not have any previous understanding of Canadian Constitutional Law should learn various freedom of expression issues. COREQUISITESNone.If the students want to learn more about freedom of expression issues in the cyberspace, take LAW425 Cyberspace Law. Although we will touch some of the issues during this course, this course will more focus on newspaper, book and magazine, pamphlets, public gathering and demonstration and broadcasting.
CONTACTSCourse Instructor(s) Contact Details Office Location Office HoursProf. Shigenori MatsuiProfessor of LawUniversity of British Columbia, Peter A. Allard School of Law1822 East Mall, Vancouver, BC V6T 1Z1Phone 604-822-5592 e-mail matsui@allard.ubc.caLaw 354 I will be in my office on Tuesday and on Thursday almost all weeks. You can drop by any time, or you can ask for an appointment.COURSE STRUCTURECourse: Tuesday 11:00 to 12:30 & Thursday 11:00 to 12:30 room 122
SCHEDULE OF TOPICS
Course Outline (tentative, subject to change)Important cases are all included in the course material. Other cases are mentioned in the notes & questions.
January 1000 Introduction
PART I: FREEDOM OF EXPRESSION IN GENERAL01 Value of Free SpeechIrwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927R. v. Keegstra, [1990] 3 S.C.R. 697Abrams v. U.S., 250 U.S. 616 (1919)Whitney v. California, 274 U.S. 357 (1927)New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
January 1202 Theoretical Framework 1A. The Power to Restrict Freedom of ExpressionSwitzman v. Elbling, [1957] S.C.R. 285McNeil v. Nova Scotia, [1978] 2 S.C.R. 662Reference re Alberta Legislation, [1938] S.C.R. 100
B. What is expression and what is an infringement of freedom of expression?Irwin Toys Ltd. v. Quebec, supraR. v. Khawaja, [2012] 3 SCR 555R. v. Keegstra, [1990] 3 S.C.R. 697R. v. Sharpe, [2001] 1 S.C.R. 45Ford v. Quebec, [1988] 2 S.C.R. 712Retail, Wholesale and Department Stores Union, Local 580 v. Dolphin Delivery Ltd.,[1986] 2 S.C.R. 573Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120
January 1703 Theoretical Framework 2C. JustificationIrwin Toy Ltd. v. Quebec, supraR. v. Lucas, [1998] 1 S.C.R. 439 Thomson Newspapers Co. v. Canada, [1998] 1 S.C.R. 877Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)Doré v. Barreau du Québec, [2012] 1 SCR 395
D. Application of the CharterGreater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component,[2009] 2 SCR 295RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130Pridgen v. University of Calgary, [2012] A.J. No. 443, 350 D.L.R. (4th) 1Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
January 1904 prior restraintLittle Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835Near v. Minnesota, 283 U.S. 697 (1931)Pentagon Papers Case (New York Times Co. v. United States, 403 U.S. 713 (1971))
January 24PART II: RESTRICTION BASED ON CONTENTS05 National Security: The Ban on Publication of State SecretSecurity of Information ActR. v. Toronto Sun Publishing Ltd. (1979) 24 O.R. (2d) 621 (Prov. Ct.)The Spycatcher Case: The Sunday Times v. The United Kingdom (No. 2), ECHR (26 November 1991)
January 2606 Public Safety: Advocacy of Illegal ActionCriminal CodeBoucher v. R., [1951] S.C.R. 265 (seditious libel)R. v. Zundel, [1992] 2 S.C.R. 731Brandenburg v. Ohio, 395 U.S. 444 (1969)Cohen v. California, 403 U.S. 15 (1971)Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)Schenck v. United States, 249 U.S. 47 (1919)Gitlow v. New York, 268 U.S. 652 (1925)Whitney v. California, 274 U.S. 357 (1927)Dennis v. United States, 341 U.S. 494 (1951)Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959)United States v. Stevens, 559 U.S. -- (2010)Brown v. Entertainment Merchants Association, 564 U.S. – (2011)
January 3107 Political ExpressionThomson Newspapers Co. v. Canada, [1998] 1 S.C.R. 877R. v. Bryan [2007]BCTF v. BC, [2009] B.C.J. No. 619 Reference re Election Act (BC), 2012 BCCA 394Mills v. Alabama, 384 U.S. 214 (1966)Daily Herald v. Munro, 838 F.2d 380 (9th Cir. 1988)Talley v. California, 362 U.S. 60 (1960)Burson v. Freeman, 504 U.S. 191 (1992)Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827Buckley v. Valeo, 424 U.S. 1 (1976)Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)Citizens United v Federal Election Commission, 130 S.Ct. 876 (2010)
February 208 DefamationHill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130R. v. Lucas, [1998] 1 S.C.R. 439Grant v. Torstar Corp., 2009 SCC 61New York Times Co. v. Sullivan, 376 U.S. 254 (1964)Cusson v. Quan, 2009 SCC 62.Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Garrison v. Louisiana, 379 US 64 (1964)Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214.WIC Radio Ltd. v. Simpson,[2008] 2 S.C.R. 420Neron v. Chambre des notaires du Quebec, [2004] 3 S.C.R. 95,Crookes v. Newton, 2011 SCC 47
February 709 Invasion of Privacy and Infliction of Emotional DistressAubry v. Editions Vice-Versa Inc., [1998] 1 S.C.R. 591Florida Star v. BJF, 491 U.S. 524 (1989)Canadian Newspaper Co. v. Canada (A. G.), [1988] 2 S.C.R. 122Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)Reference re: Bill C-7 respecting the criminal justice system for young persons, [2003] Q.J. No. 2850 (Que. CA)Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)Times-Mirror Co. v. Superior Court, 198 Cal.App.3d, 244 Cal. Rptr. 556, (1988)
February 910 Pornography and Child PornographyR. v. Butler, [1992] 1 S.C.R. 452Miller v. California, 413 U.S. 15 (1973)Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985)R. v. Labaye, [2005] 3 S.C.R. 728R. v. Sharpe, [2001] 1 S.C.R. 45New York v. Ferber, 458 U.S. 747 (1982)Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)United States v. Williams, 553 U.S.-- (2008).R. v. Barabash, [2015] 2 SCR 522Ginsberg v. New York, 390 U.S. 629 (1968)
February 1411 Hate SpeechR. v. Keegstra, [1990] 3 S.C.R. 697Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)Virginia v. Black et al., 538 U.S. 343 (2003)Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich 1989)United States, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
February 1612 Fair TrialR. v. Mentuck, [2001] 3 S.C.R. 442Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122Toronto Star Newspapers v. Ontario, [2005] 2 S.C.R. 188Globe & Mail v. Canada (Attorney general), 2010 SCC 41Toronto Star Newspapers Ltd. v. Canada [2010] 1 S.C.R. 721Canadian Broadcasting Corp v. The Queen, 2011 SCC 3Sheppard v. Maxwell, 384 U.S. 333 (1966).Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835Chandler v. Florida, 449 U.S. 560 (1981).
February 20-24 reading break no class
February 2813 Advertisement and Commercial ExpressionFord v. Quebec, [1988] 2 S.C.R. 712Rocket v. Royal College of Dental Surgeons, [1990] 1 S.C.R. 232RJR-McDonald v. Canada, [1995] 3 S.C.R. 199Canada v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610Valentine v. Chrestensen, 316 U.S. 52 (1942).Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).Central Hudson Gas & Electric Corp., v. Public Service Commission, 447 U.S. 557 (1980):Kasky v, Nike, 45 P.3d 243 (cal. 2002), cert. dismissed 539 U.S. 654 (2003),Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376 (1973)Rubin v. Coors Brewing Company, 514 U.S. 476 (1995)Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986)Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).Devine v. Quebec, [1988] 2 S.C.R. 790
March 214 CopyrightHarper & Row v. Nation Enterprises, 471 U.S. 539 (1985)Eldred v. Ashcroft, 537 U.S. 186 (2003)Golan v. Holder, 565 U.S. --_(2012)Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)Robertson v. Thomson Corp., [2006] 2 S.C.R. 363Hoehling v. Universal Studios, Inc., 618 F.2d 972 (2d Cir.), cert. denied 449 U.S. 841 (1980)Murray v. NBC, 844 F.2d 988 (2d Cir. 1988)Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991)Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987)New Era Publications International v. Carol Publishing Group, 904 F.2d 152 (2d Cir. 1990)CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37
March 7PART III: CONTENT NEUTRAL RESTRICTION ON SPEECH15 Content-Neutral Restriction on Speech: Time, Place, & Manner RestrictionSaumur v. City of Quebec, [1953] 2 S.C.R. 299Ramsden v. Peterborough, [1993] 2 S.C.R. 1084R. v. Guignard, [2002] 1 S.C.R. 472Pepsi-Cola Canada Beverages v. R.W.D.S.U., [2002] 1 S.C.R. 156Vancouver (City) v. Zhang, [2010] B.C.J. No. 2015, 2010 BCCA 450 (BCCA)Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139United States, Lovell v. City of Griffin, 303 U.S. 444 (1938) Martin v. Struthers, 319 U.S. 141 (1943)Tillman v. Distribution Systems of American, Inc., 224 A.D.2d 79, 648 NYS2d 630 (1996 N.Y.)Statesboro Publishing Co. v. City of Sylvania, 271 Ga. 92, 516 S.E.2d 296 (1999)City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993)(en banc), cert. denied, 511 U.S. 1085 (1994)Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)Vann Niagara v. Oakville, [2003] 3 S.C.R. 158U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141
March 9PART IV: NEWSGATHERING16 The Right of Receive Information and the Right to Gather InformationLuscher v. Deputy Minister of National Revenue, [1985] 1 F.C. 85 (C.A.)Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120R. v. Sharpe, [2001] 1 S.C.R. 45International Fund for Animal Welfare Inc. v. Canada, [1987] 1 F.C. 244 (T.D.)Branzburg v. Hayes, 408 U.S. 665 (1972)Wilson v. Layne, 526 U.S. 603 (1999)Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978).Dietmann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971)Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973)Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460 (9th Cir. 1998)Shevin v. Sunbeam Television Corp, 351 So.2d 723 (Fla. 1977)Sanders v. American Broadcasting Companies, Inc., 20 Cal. 4th 907, 978 P.2d 67 (Cal. 1999)Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)Clift v. Narragansett Television L.P., 688 A.2d 805 (R.I. 1996)
March 1417 Restrictions on Newsgathering: Subpoena, Testimony, and SearchR. v. National Post, 2010 SCC 16Globe and Mail v. Canada (Attorney General), 2010 SCC 41Branzburg v. Hayes, 408 U.S. 665 (1972)Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421R. v. Vice Media Canada Inc., [2018] SCC 53Zurcher v. Stanford Daily, 436 U.S. 547 (1978)Reporters Committee for Freedom of the Press v. American telephone & Telegraph Co., 593 F.2d 1030(D.C.Cir. 1978)
March 16PART V: PUBLIC ACCESS TO GOVERNMENT INFORMATION18 Public Access to Government Information and Mass MediaNew Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319Houchins v. KQED, Inc., 438 U.S. 1 (1978)City of Oak Creek v. Ah King, 148 Wis.2d 532, 436 N.W.2d 285 (Wis. 1989)Sherrill v. Knight, 569 F2d 124 (D.C. Cir. 1977)Ludtke v. Kuhn, 461 F.Supp. 86 (S.D.N.Y. 1978)
March 2119 Public Access to CourtCanadian Broadcasting Corp. v. New Brunswick, [1996] 3 S.C.R. 480Re Vancouver Sun, [2004] 2 S.C.R. 332Gannett Co. v. DePasquale, 443 U.S. 368 (1979). Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984) Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986)Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). United States v. McDougal, 103 F.3d 651 (8th Cir. 1996).Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671R. v. Rowbotham, (1976) 2 C.R. (3d) 241 (Ont. G.S.P.) R. v. Pilarinos, (2001) 158 C.C.C. (3d) 1 (B.C.S.C)R. v. Dickinson, [2012] B.C.J. No. 287.A.B. v. Bragg Communications, 2012 SCC 46
March 2320 Freedom of InformationAccess to Information ActOntario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815Macdonell v. Quebec (Commission d'accès à l'information), [2002] 3 S.C.R. 661Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441
March 28PART VI: BROADCASTING, NEW MEDIA, INTERNET21 BroadcastingCKOY Ltd. v. R., [1979] 1 S.C.R. 2Canada (Canadian Radio-Television and Telecommunications Commission) v. CTV Television Network Ltd., [1982] 1 S.C.R. 530Red Lion Broadcasting Co. v. FCC, 395 U.S. 467 (1969)R. v. Canadian Broadcasting Corp., [1983] 1 S.C.R. 339
March 3022 New Media and InternetCapital Cities Communication Inc. v. Canada, [1978] 2 S.C.R. 141Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)(Turner I)Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997)(Turner II)Reno v. ACLU, 521 U.S. 844 (1997)Broadcasting Public Notice CRTC 1999-84
April 4PART VII: SOCIAL RESPONSIBILITY OF MASS MEDIA23 Social Responsibility of Mass Media and Right of AccessGay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)CBS, Inc. v. FCC, 453 U.S. 367 (1981)Adbusters Media Foundation v. Canadian Broadcasting Corp.,[2009] B.C.J. No. 658, 2009 BCCA 148,
April 624 Government SpeechNational Endowment for Arts v. Finley, 524 U.S. 569 (1998)Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)Rust v. Sullivan, 500 U.S. 173 (1991)
April 11 wrap-up
*End of semester
LEARNING OUTCOMES
Course Objective: This course is intended to provide the students with an opportunity to learn various questions regarding freedom of expression. This course is ideal for students who have learned the basic doctrines of constitutional law to apply its knowledge in specific situations involving freedom of expression. But the students can learn the basics of freedom of expression by taking this course without any advance knowledge. The students should be ready to face new constitutional questions never discussed in the class if they are raised in the future.
LEARNING ACTIVITIES
Course structure: This seminar meets twice a week on Tuesday, 11:00 to 12:30 and on Thursday, 11:00 to 12:30 in room 114.The course will start with the examination of values of freedom of expression and general theoretical framework, especially focusing whether the mass media should be granted privileged status. The course will then examine various content-based restrictions on speech, such as ban on disclosure of national secret, ban on advocacy of illegal action, regulation of election speech, restriction of other political expression, civil and criminal liability for defamation, civil liability for invasion of privacy, regulation of offensive speech, ban on hate speech, ban on pornography, ban on child-pornography, regulation of sexually explicit expression, regulation of commercial expression and protection of copyright. Then, the course will also examine the content-neutral restrictions on freedom of expression, restriction on newsgathering, including protection of confidential sources. It will also examine the right of access to the government information, including right of access to the courtroom and the right of access to government-held information under the Access to Information Act. The course will also examine the regulation of broadcasting and new media, including the cable television, satellite television and the Internet. Then, the students will face the question of social responsibility of the mass media, the issue of right of access to the mass media and the social responsibility of mass media.Throughout the course, the students are encouraged to analyze these constitutional issues under the protection of freedom of expression of the Charter. But the course will also examine various issues presented in other countries, especially in the United Kingdom, the United States, or other European countries.Students are mandated to read assignment before the class and actively engage in the class discussion. Analyzing questions suggested in NOTES & QUESTIONS is especially important to obtain the detailed knowledge of law of freedom of expression. Critical analysis is also strongly encouraged.All power-point files to be used during the class will be uploaded and would be shared with participating students on UBC OneDrive. Please make sure that you have access to UBC OneDrive. Please note again that we will discuss various offensive, vulgar and insulting expression during the course for the critical examination on the limits of freedom of expression. Since the course is on freedom of expression, it is essential to discuss various views and opinions. The course does not have any intention of facilitating or promoting any of the views or opinions discussed. I hope you will understand the necessity and significance of these discussions.
IT IS EXPECTED THAT ALL OF THE STUDENTS WILL READ THE ASSIGNMENT FOR EACH CLASS AND COME TO THE CLASS FOR DISCUSSION. ACTIVE CLASS PARTICIPATION IS STRONGLY EXPECTED
LEARNING MATERIALSThere is no mandatory textbook for this course. I will send you an electronic file of reading assignment and you are supposed to read the materials before the class.
If you need some reference materials, the following books and articles might be helpful:Robert Martin, Media Law (2nd ed. Irwin Law 2003)(Canada)(out of print)Kent Roach & David Schneiderman, Freedom of Expression in Canada, 61 SCLR (2d) 429 (2013), http://www.law.utoronto.ca/utfl_file/count/documents/Roach/Chapter%2010%20Roach%20Schneiderman.pdf (Canada)Geoffrey Robertson & Andrew Nicol, Media Law (5th ed. Penguin 2008)(U.K.) Eric Barendt, et al., Media Law: Text, Cases and Materials (Pearson 2014)(U.K.)T. Barton Carter, Marc. A. Franklin & Jay B. Wright, The First Amendment and the Fourth Estate: The Law of Mass Media (12th ed. Foundation Press 2016)(U.S.)Franklin, Anderson, Lidsky & Galda, Media Law: Cases and Materials (9th. Ed. Foundation Press 2016)(U.S.)Stone, Seidman, Sunstein, Tushnet, & Karlan, The First Amendment (5th ed. Kluwer 2016)(U.S.)
Note, however, that not all of these books are available in the library.
ASSESSMENTS OF LEARNINGClass participation 30% and final assignment 70%. Students will be evaluated based upon the class participation and examination or final essay paper. The examination or final essay paper will be assigned 70% of total evaluation and the class performance will be assigned 30% of total evaluation.
Class participation: Class participation mark is evaluated based upon the class attendance, performance as a student moderator and the degree of active participation in the class discussion. Each student is required to attend the class after reading assigned materials and is encouraged to participate in the class discussions. Regular attendance and active participation are especially important to provide you with deeper knowledge and understanding. During the classroom discussions, we will pick up many specific issues, including new issues and new judgments, and discuss how we should resolve the cases. With respect to major issue for discussion, we might pick up the student moderator to moderate the discussion or divide the class into separate breakout rooms for student discussion. After each class, all participants are required to submit a short answer to the question attached in the power-point file. The answers will be also considered into the participation mark.If you miss too many classes, you will not be eligible to submit your final paper.
Examination: student will have a choice of choosing examination or submission of paper. If you choose to challenge the examination, please notify me by the end of February. Examination is scheduled on April 27, from 9. Examination will be open book examination and student will be granted one and half hour answering time plus 15 minutes reading time. Examination will usually ask one question with several sub-questions and prompt the student to answer the question. It is a specific hypothetical constitutional question, and it could be touched during the class or alluded during the discussion. The examination will be evaluated just as final essay papers.
Final paper: With respect to final paper, each student should choose a particular topic from the areas covered by this course and submit the outline of the paper by the end of February (you can just send an e-mail outlining your paper) and then write a substantial paper (roughly 15 pages—this is merely a suggestion and is not the minimum or maximum limit) by the end of submission deadline (4:00 p.m. of the final day of the examination, April 28, 2023). Please send your paper with your email to me. But please make sure to keep your original copy with you just in case and make sure to receive my reception e-mail.You do not have to pick up the topic discussed in the class. You can pick up any subject that might be relevant to our course. I will be happy to advise you on your choice of topic and you should talk with me before finalizing your outline. The paper will be evaluated based on the choice of topic, the extent of the research, the organization and structure of analysis, the analytical skill, the writing skill and the overall persuasiveness. I don’t care what format you would choose, what citation method or citation style you would prefer to use or how long you would choose to write. All I will care is the substance of your research, writing and analysis.
After separately evaluating class participation mark and examination or paper mark, I will add these marks to produce tentative final mark. Then, in order to comply with the law school’s grading policy, sometimes I will have to add final adjustment to reach the final marks to be submitted.
If you are sick or if you are the close contact with an infected person with the COVID-19 virus, don’t come to school. Stay home and take a short-term absence for health reasons. For the law school’s short-term absence policy for health reasons, seehttps://allard.ubc.ca/sites/default/files/2022-08/short-term_absence_2022W.pdf .
For the law school’s grading policy, see https://allard.ubc.ca/sites/default/files/2020-06/grading_rules_2018w_beginning_spring_term_2019.pdf . For the law school policy on late submission, see https://allard.ubc.ca/sites/default/files/2020-06/penalties_for_late_assignments.pdf.For the law school’s academic concession policy (including deferral of exam or extension of deadline of submission of paper), see https://allard.ubc.ca/sites/default/files/2022-11/Academic%20Concession%20Procedures%20%28Approved%20by%20Faculty%20Council%20Nov%2017%2C%202022%29.pdf.
UNIVERSITY POLICIES
UBC provides resources to support student learning and to maintain healthy lifestyles but recognizes that sometimes crises arise and so there are additional resources to access including those for survivors of sexual violence. UBC values respect for the person and ideas of all members of the academic community. Harassment and discrimination are not tolerated nor is suppression of academic freedom. UBC provides appropriate accommodation for students with disabilities and for religious observances. UBC values academic honesty and students are expected to acknowledge the ideas generated by others and to uphold the highest academic standards in all of their actions.Details of the policies and how to access support are available on the UBC Senate website.
COPYRIGHTAll reading materials are edited copies of the decisions of the U.S. Supreme Court and the Supreme Court of Canada and there are no copyright issues on using them. All the class instructions and distributed materials can be shared among other participants of the class but cannot be published or distributed to others without permission. No video recordings or tape recording is permitted.
updated January 1, 2023
WARNINGThis course involves highly political as well as sensitive issues. Some of the issues covered a highly political and controversial issues raising public safety concerns. Some of the issues covered is highly offensive and hurtful. We will discuss all these issues in order to learn about the limits of freedom of expression protection under the Charter. I don’t have any intention of offending or harming anyone or provoking the disruption of public safety. Please be prepared to discuss and participate in the discussion as legal questions as lawyers. Please also be careful to be respectful for other participants as well. Also, if you are a foreign exchange student, there might be some concern for participating in this course and discussing some of the issues in the class. Please pay extra care on any possible restrictions in your jurisdiction. If you have any concerns with some of the issues, please notify me. ACKNOWLEDGEMENTUBC’s Point Grey Campus is located on the traditional, ancestral, and unceded territory of the xwməθkwəy̓əm (Musqueam) people. The land it is situated on has always been a place of learning for the Musqueam people, who for millennia have passed on in their culture, history, and traditions from one generation to the next on this site.COURSE INFORMATIONCourse Title Course Code Number Credit ValueTopics in Public Law: Freedom of Expression LAW343C.001 3
PREREQUISITESThere is no requirement to take this course. It would be wonderful if you have basic understanding of the Canadian Constitutional Law, especially freedom of expression. But we will start from the basics and anyone who does not have any previous understanding of Canadian Constitutional Law should learn various freedom of expression issues. COREQUISITESNone.If the students want to learn more about freedom of expression issues in the cyberspace, take LAW425 Cyberspace Law. Although we will touch some of the issues during this course, this course will more focus on newspaper, book and magazine, pamphlets, public gathering and demonstration and broadcasting.
CONTACTSCourse Instructor(s) Contact Details Office Location Office HoursProf. Shigenori MatsuiProfessor of LawUniversity of British Columbia, Peter A. Allard School of Law1822 East Mall, Vancouver, BC V6T 1Z1Phone 604-822-5592 e-mail matsui@allard.ubc.caLaw 354 I will be in my office on Tuesday and on Thursday almost all weeks. You can drop by any time, or you can ask for an appointment.COURSE STRUCTURECourse: Tuesday 11:00 to 12:30 & Thursday 11:00 to 12:30 room 122
SCHEDULE OF TOPICS
Course Outline (tentative, subject to change)Important cases are all included in the course material. Other cases are mentioned in the notes & questions.
January 1000 Introduction
PART I: FREEDOM OF EXPRESSION IN GENERAL01 Value of Free SpeechIrwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927R. v. Keegstra, [1990] 3 S.C.R. 697Abrams v. U.S., 250 U.S. 616 (1919)Whitney v. California, 274 U.S. 357 (1927)New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
January 1202 Theoretical Framework 1A. The Power to Restrict Freedom of ExpressionSwitzman v. Elbling, [1957] S.C.R. 285McNeil v. Nova Scotia, [1978] 2 S.C.R. 662Reference re Alberta Legislation, [1938] S.C.R. 100
B. What is expression and what is an infringement of freedom of expression?Irwin Toys Ltd. v. Quebec, supraR. v. Khawaja, [2012] 3 SCR 555R. v. Keegstra, [1990] 3 S.C.R. 697R. v. Sharpe, [2001] 1 S.C.R. 45Ford v. Quebec, [1988] 2 S.C.R. 712Retail, Wholesale and Department Stores Union, Local 580 v. Dolphin Delivery Ltd.,[1986] 2 S.C.R. 573Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120
January 1703 Theoretical Framework 2C. JustificationIrwin Toy Ltd. v. Quebec, supraR. v. Lucas, [1998] 1 S.C.R. 439 Thomson Newspapers Co. v. Canada, [1998] 1 S.C.R. 877Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)Doré v. Barreau du Québec, [2012] 1 SCR 395
D. Application of the CharterGreater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component,[2009] 2 SCR 295RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130Pridgen v. University of Calgary, [2012] A.J. No. 443, 350 D.L.R. (4th) 1Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
January 1904 prior restraintLittle Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835Near v. Minnesota, 283 U.S. 697 (1931)Pentagon Papers Case (New York Times Co. v. United States, 403 U.S. 713 (1971))
January 24PART II: RESTRICTION BASED ON CONTENTS05 National Security: The Ban on Publication of State SecretSecurity of Information ActR. v. Toronto Sun Publishing Ltd. (1979) 24 O.R. (2d) 621 (Prov. Ct.)The Spycatcher Case: The Sunday Times v. The United Kingdom (No. 2), ECHR (26 November 1991)
January 2606 Public Safety: Advocacy of Illegal ActionCriminal CodeBoucher v. R., [1951] S.C.R. 265 (seditious libel)R. v. Zundel, [1992] 2 S.C.R. 731Brandenburg v. Ohio, 395 U.S. 444 (1969)Cohen v. California, 403 U.S. 15 (1971)Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)Schenck v. United States, 249 U.S. 47 (1919)Gitlow v. New York, 268 U.S. 652 (1925)Whitney v. California, 274 U.S. 357 (1927)Dennis v. United States, 341 U.S. 494 (1951)Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959)United States v. Stevens, 559 U.S. -- (2010)Brown v. Entertainment Merchants Association, 564 U.S. – (2011)
January 3107 Political ExpressionThomson Newspapers Co. v. Canada, [1998] 1 S.C.R. 877R. v. Bryan [2007]BCTF v. BC, [2009] B.C.J. No. 619 Reference re Election Act (BC), 2012 BCCA 394Mills v. Alabama, 384 U.S. 214 (1966)Daily Herald v. Munro, 838 F.2d 380 (9th Cir. 1988)Talley v. California, 362 U.S. 60 (1960)Burson v. Freeman, 504 U.S. 191 (1992)Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827Buckley v. Valeo, 424 U.S. 1 (1976)Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)Citizens United v Federal Election Commission, 130 S.Ct. 876 (2010)
February 208 DefamationHill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130R. v. Lucas, [1998] 1 S.C.R. 439Grant v. Torstar Corp., 2009 SCC 61New York Times Co. v. Sullivan, 376 U.S. 254 (1964)Cusson v. Quan, 2009 SCC 62.Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Garrison v. Louisiana, 379 US 64 (1964)Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214.WIC Radio Ltd. v. Simpson,[2008] 2 S.C.R. 420Neron v. Chambre des notaires du Quebec, [2004] 3 S.C.R. 95,Crookes v. Newton, 2011 SCC 47
February 709 Invasion of Privacy and Infliction of Emotional DistressAubry v. Editions Vice-Versa Inc., [1998] 1 S.C.R. 591Florida Star v. BJF, 491 U.S. 524 (1989)Canadian Newspaper Co. v. Canada (A. G.), [1988] 2 S.C.R. 122Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)Reference re: Bill C-7 respecting the criminal justice system for young persons, [2003] Q.J. No. 2850 (Que. CA)Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)Times-Mirror Co. v. Superior Court, 198 Cal.App.3d, 244 Cal. Rptr. 556, (1988)
February 910 Pornography and Child PornographyR. v. Butler, [1992] 1 S.C.R. 452Miller v. California, 413 U.S. 15 (1973)Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985)R. v. Labaye, [2005] 3 S.C.R. 728R. v. Sharpe, [2001] 1 S.C.R. 45New York v. Ferber, 458 U.S. 747 (1982)Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)United States v. Williams, 553 U.S.-- (2008).R. v. Barabash, [2015] 2 SCR 522Ginsberg v. New York, 390 U.S. 629 (1968)
February 1411 Hate SpeechR. v. Keegstra, [1990] 3 S.C.R. 697Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)Virginia v. Black et al., 538 U.S. 343 (2003)Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich 1989)United States, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
February 1612 Fair TrialR. v. Mentuck, [2001] 3 S.C.R. 442Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122Toronto Star Newspapers v. Ontario, [2005] 2 S.C.R. 188Globe & Mail v. Canada (Attorney general), 2010 SCC 41Toronto Star Newspapers Ltd. v. Canada [2010] 1 S.C.R. 721Canadian Broadcasting Corp v. The Queen, 2011 SCC 3Sheppard v. Maxwell, 384 U.S. 333 (1966).Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835Chandler v. Florida, 449 U.S. 560 (1981).
February 20-24 reading break no class
February 2813 Advertisement and Commercial ExpressionFord v. Quebec, [1988] 2 S.C.R. 712Rocket v. Royal College of Dental Surgeons, [1990] 1 S.C.R. 232RJR-McDonald v. Canada, [1995] 3 S.C.R. 199Canada v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610Valentine v. Chrestensen, 316 U.S. 52 (1942).Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).Central Hudson Gas & Electric Corp., v. Public Service Commission, 447 U.S. 557 (1980):Kasky v, Nike, 45 P.3d 243 (cal. 2002), cert. dismissed 539 U.S. 654 (2003),Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376 (1973)Rubin v. Coors Brewing Company, 514 U.S. 476 (1995)Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986)Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).Devine v. Quebec, [1988] 2 S.C.R. 790
March 214 CopyrightHarper & Row v. Nation Enterprises, 471 U.S. 539 (1985)Eldred v. Ashcroft, 537 U.S. 186 (2003)Golan v. Holder, 565 U.S. --_(2012)Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)Robertson v. Thomson Corp., [2006] 2 S.C.R. 363Hoehling v. Universal Studios, Inc., 618 F.2d 972 (2d Cir.), cert. denied 449 U.S. 841 (1980)Murray v. NBC, 844 F.2d 988 (2d Cir. 1988)Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991)Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987)New Era Publications International v. Carol Publishing Group, 904 F.2d 152 (2d Cir. 1990)CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37
March 7PART III: CONTENT NEUTRAL RESTRICTION ON SPEECH15 Content-Neutral Restriction on Speech: Time, Place, & Manner RestrictionSaumur v. City of Quebec, [1953] 2 S.C.R. 299Ramsden v. Peterborough, [1993] 2 S.C.R. 1084R. v. Guignard, [2002] 1 S.C.R. 472Pepsi-Cola Canada Beverages v. R.W.D.S.U., [2002] 1 S.C.R. 156Vancouver (City) v. Zhang, [2010] B.C.J. No. 2015, 2010 BCCA 450 (BCCA)Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139United States, Lovell v. City of Griffin, 303 U.S. 444 (1938) Martin v. Struthers, 319 U.S. 141 (1943)Tillman v. Distribution Systems of American, Inc., 224 A.D.2d 79, 648 NYS2d 630 (1996 N.Y.)Statesboro Publishing Co. v. City of Sylvania, 271 Ga. 92, 516 S.E.2d 296 (1999)City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993)(en banc), cert. denied, 511 U.S. 1085 (1994)Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)Vann Niagara v. Oakville, [2003] 3 S.C.R. 158U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141
March 9PART IV: NEWSGATHERING16 The Right of Receive Information and the Right to Gather InformationLuscher v. Deputy Minister of National Revenue, [1985] 1 F.C. 85 (C.A.)Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120R. v. Sharpe, [2001] 1 S.C.R. 45International Fund for Animal Welfare Inc. v. Canada, [1987] 1 F.C. 244 (T.D.)Branzburg v. Hayes, 408 U.S. 665 (1972)Wilson v. Layne, 526 U.S. 603 (1999)Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978).Dietmann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971)Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973)Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460 (9th Cir. 1998)Shevin v. Sunbeam Television Corp, 351 So.2d 723 (Fla. 1977)Sanders v. American Broadcasting Companies, Inc., 20 Cal. 4th 907, 978 P.2d 67 (Cal. 1999)Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)Clift v. Narragansett Television L.P., 688 A.2d 805 (R.I. 1996)
March 1417 Restrictions on Newsgathering: Subpoena, Testimony, and SearchR. v. National Post, 2010 SCC 16Globe and Mail v. Canada (Attorney General), 2010 SCC 41Branzburg v. Hayes, 408 U.S. 665 (1972)Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421R. v. Vice Media Canada Inc., [2018] SCC 53Zurcher v. Stanford Daily, 436 U.S. 547 (1978)Reporters Committee for Freedom of the Press v. American telephone & Telegraph Co., 593 F.2d 1030(D.C.Cir. 1978)
March 16PART V: PUBLIC ACCESS TO GOVERNMENT INFORMATION18 Public Access to Government Information and Mass MediaNew Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319Houchins v. KQED, Inc., 438 U.S. 1 (1978)City of Oak Creek v. Ah King, 148 Wis.2d 532, 436 N.W.2d 285 (Wis. 1989)Sherrill v. Knight, 569 F2d 124 (D.C. Cir. 1977)Ludtke v. Kuhn, 461 F.Supp. 86 (S.D.N.Y. 1978)
March 2119 Public Access to CourtCanadian Broadcasting Corp. v. New Brunswick, [1996] 3 S.C.R. 480Re Vancouver Sun, [2004] 2 S.C.R. 332Gannett Co. v. DePasquale, 443 U.S. 368 (1979). Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984) Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986)Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). United States v. McDougal, 103 F.3d 651 (8th Cir. 1996).Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671R. v. Rowbotham, (1976) 2 C.R. (3d) 241 (Ont. G.S.P.) R. v. Pilarinos, (2001) 158 C.C.C. (3d) 1 (B.C.S.C)R. v. Dickinson, [2012] B.C.J. No. 287.A.B. v. Bragg Communications, 2012 SCC 46
March 2320 Freedom of InformationAccess to Information ActOntario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815Macdonell v. Quebec (Commission d'accès à l'information), [2002] 3 S.C.R. 661Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441
March 28PART VI: BROADCASTING, NEW MEDIA, INTERNET21 BroadcastingCKOY Ltd. v. R., [1979] 1 S.C.R. 2Canada (Canadian Radio-Television and Telecommunications Commission) v. CTV Television Network Ltd., [1982] 1 S.C.R. 530Red Lion Broadcasting Co. v. FCC, 395 U.S. 467 (1969)R. v. Canadian Broadcasting Corp., [1983] 1 S.C.R. 339
March 3022 New Media and InternetCapital Cities Communication Inc. v. Canada, [1978] 2 S.C.R. 141Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)(Turner I)Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997)(Turner II)Reno v. ACLU, 521 U.S. 844 (1997)Broadcasting Public Notice CRTC 1999-84
April 4PART VII: SOCIAL RESPONSIBILITY OF MASS MEDIA23 Social Responsibility of Mass Media and Right of AccessGay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)CBS, Inc. v. FCC, 453 U.S. 367 (1981)Adbusters Media Foundation v. Canadian Broadcasting Corp.,[2009] B.C.J. No. 658, 2009 BCCA 148,
April 624 Government SpeechNational Endowment for Arts v. Finley, 524 U.S. 569 (1998)Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)Rust v. Sullivan, 500 U.S. 173 (1991)
April 11 wrap-up
*End of semester
LEARNING OUTCOMES
Course Objective: This course is intended to provide the students with an opportunity to learn various questions regarding freedom of expression. This course is ideal for students who have learned the basic doctrines of constitutional law to apply its knowledge in specific situations involving freedom of expression. But the students can learn the basics of freedom of expression by taking this course without any advance knowledge. The students should be ready to face new constitutional questions never discussed in the class if they are raised in the future.
LEARNING ACTIVITIES
Course structure: This seminar meets twice a week on Tuesday, 11:00 to 12:30 and on Thursday, 11:00 to 12:30 in room 114.The course will start with the examination of values of freedom of expression and general theoretical framework, especially focusing whether the mass media should be granted privileged status. The course will then examine various content-based restrictions on speech, such as ban on disclosure of national secret, ban on advocacy of illegal action, regulation of election speech, restriction of other political expression, civil and criminal liability for defamation, civil liability for invasion of privacy, regulation of offensive speech, ban on hate speech, ban on pornography, ban on child-pornography, regulation of sexually explicit expression, regulation of commercial expression and protection of copyright. Then, the course will also examine the content-neutral restrictions on freedom of expression, restriction on newsgathering, including protection of confidential sources. It will also examine the right of access to the government information, including right of access to the courtroom and the right of access to government-held information under the Access to Information Act. The course will also examine the regulation of broadcasting and new media, including the cable television, satellite television and the Internet. Then, the students will face the question of social responsibility of the mass media, the issue of right of access to the mass media and the social responsibility of mass media.Throughout the course, the students are encouraged to analyze these constitutional issues under the protection of freedom of expression of the Charter. But the course will also examine various issues presented in other countries, especially in the United Kingdom, the United States, or other European countries.Students are mandated to read assignment before the class and actively engage in the class discussion. Analyzing questions suggested in NOTES & QUESTIONS is especially important to obtain the detailed knowledge of law of freedom of expression. Critical analysis is also strongly encouraged.All power-point files to be used during the class will be uploaded and would be shared with participating students on UBC OneDrive. Please make sure that you have access to UBC OneDrive. Please note again that we will discuss various offensive, vulgar and insulting expression during the course for the critical examination on the limits of freedom of expression. Since the course is on freedom of expression, it is essential to discuss various views and opinions. The course does not have any intention of facilitating or promoting any of the views or opinions discussed. I hope you will understand the necessity and significance of these discussions.
IT IS EXPECTED THAT ALL OF THE STUDENTS WILL READ THE ASSIGNMENT FOR EACH CLASS AND COME TO THE CLASS FOR DISCUSSION. ACTIVE CLASS PARTICIPATION IS STRONGLY EXPECTED
LEARNING MATERIALSThere is no mandatory textbook for this course. I will send you an electronic file of reading assignment and you are supposed to read the materials before the class.
If you need some reference materials, the following books and articles might be helpful:Robert Martin, Media Law (2nd ed. Irwin Law 2003)(Canada)(out of print)Kent Roach & David Schneiderman, Freedom of Expression in Canada, 61 SCLR (2d) 429 (2013), http://www.law.utoronto.ca/utfl_file/count/documents/Roach/Chapter%2010%20Roach%20Schneiderman.pdf (Canada)Geoffrey Robertson & Andrew Nicol, Media Law (5th ed. Penguin 2008)(U.K.) Eric Barendt, et al., Media Law: Text, Cases and Materials (Pearson 2014)(U.K.)T. Barton Carter, Marc. A. Franklin & Jay B. Wright, The First Amendment and the Fourth Estate: The Law of Mass Media (12th ed. Foundation Press 2016)(U.S.)Franklin, Anderson, Lidsky & Galda, Media Law: Cases and Materials (9th. Ed. Foundation Press 2016)(U.S.)Stone, Seidman, Sunstein, Tushnet, & Karlan, The First Amendment (5th ed. Kluwer 2016)(U.S.)
Note, however, that not all of these books are available in the library.
ASSESSMENTS OF LEARNINGClass participation 30% and final assignment 70%. Students will be evaluated based upon the class participation and examination or final essay paper. The examination or final essay paper will be assigned 70% of total evaluation and the class performance will be assigned 30% of total evaluation.
Class participation: Class participation mark is evaluated based upon the class attendance, performance as a student moderator and the degree of active participation in the class discussion. Each student is required to attend the class after reading assigned materials and is encouraged to participate in the class discussions. Regular attendance and active participation are especially important to provide you with deeper knowledge and understanding. During the classroom discussions, we will pick up many specific issues, including new issues and new judgments, and discuss how we should resolve the cases. With respect to major issue for discussion, we might pick up the student moderator to moderate the discussion or divide the class into separate breakout rooms for student discussion. After each class, all participants are required to submit a short answer to the question attached in the power-point file. The answers will be also considered into the participation mark.If you miss too many classes, you will not be eligible to submit your final paper.
Examination: student will have a choice of choosing examination or submission of paper. If you choose to challenge the examination, please notify me by the end of February. Examination is scheduled on April 27, from 9. Examination will be open book examination and student will be granted one and half hour answering time plus 15 minutes reading time. Examination will usually ask one question with several sub-questions and prompt the student to answer the question. It is a specific hypothetical constitutional question, and it could be touched during the class or alluded during the discussion. The examination will be evaluated just as final essay papers.
Final paper: With respect to final paper, each student should choose a particular topic from the areas covered by this course and submit the outline of the paper by the end of February (you can just send an e-mail outlining your paper) and then write a substantial paper (roughly 15 pages—this is merely a suggestion and is not the minimum or maximum limit) by the end of submission deadline (4:00 p.m. of the final day of the examination, April 28, 2023). Please send your paper with your email to me. But please make sure to keep your original copy with you just in case and make sure to receive my reception e-mail.You do not have to pick up the topic discussed in the class. You can pick up any subject that might be relevant to our course. I will be happy to advise you on your choice of topic and you should talk with me before finalizing your outline. The paper will be evaluated based on the choice of topic, the extent of the research, the organization and structure of analysis, the analytical skill, the writing skill and the overall persuasiveness. I don’t care what format you would choose, what citation method or citation style you would prefer to use or how long you would choose to write. All I will care is the substance of your research, writing and analysis.
After separately evaluating class participation mark and examination or paper mark, I will add these marks to produce tentative final mark. Then, in order to comply with the law school’s grading policy, sometimes I will have to add final adjustment to reach the final marks to be submitted.
If you are sick or if you are the close contact with an infected person with the COVID-19 virus, don’t come to school. Stay home and take a short-term absence for health reasons. For the law school’s short-term absence policy for health reasons, seehttps://allard.ubc.ca/sites/default/files/2022-08/short-term_absence_2022W.pdf .
For the law school’s grading policy, see https://allard.ubc.ca/sites/default/files/2020-06/grading_rules_2018w_beginning_spring_term_2019.pdf . For the law school policy on late submission, see https://allard.ubc.ca/sites/default/files/2020-06/penalties_for_late_assignments.pdf.For the law school’s academic concession policy (including deferral of exam or extension of deadline of submission of paper), see https://allard.ubc.ca/sites/default/files/2022-11/Academic%20Concession%20Procedures%20%28Approved%20by%20Faculty%20Council%20Nov%2017%2C%202022%29.pdf.
UNIVERSITY POLICIES
UBC provides resources to support student learning and to maintain healthy lifestyles but recognizes that sometimes crises arise and so there are additional resources to access including those for survivors of sexual violence. UBC values respect for the person and ideas of all members of the academic community. Harassment and discrimination are not tolerated nor is suppression of academic freedom. UBC provides appropriate accommodation for students with disabilities and for religious observances. UBC values academic honesty and students are expected to acknowledge the ideas generated by others and to uphold the highest academic standards in all of their actions.Details of the policies and how to access support are available on the UBC Senate website.
COPYRIGHTAll reading materials are edited copies of the decisions of the U.S. Supreme Court and the Supreme Court of Canada and there are no copyright issues on using them. All the class instructions and distributed materials can be shared among other participants of the class but cannot be published or distributed to others without permission. No video recordings or tape recording is permitted.
updated January 1, 2023