The Supreme Court of Canada has given the green light to political advertising on the sides of transit vehicles, in an important test of free expression.
In an 8-0 ruling this morning, the court said two B.C. mass transit agencies were wrong to refuse political ads the Canadian Federation of Students and a teachers union attempted to purchase in 2004.
The agencies - the Greater Vancouver Transportation Authority (TransLink) and British Columbia Transit (BC Transit) - rejected the ads based on internal policies that focused on making riders feel comfortable with their surroundings.
The corporate policy permitted commercial advertising on the outside of transit vehicles, but banned political ads that were "likely to cause offence to any person or group of persons or create controversy."
"It is difficult to see how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users," Madam Justice Marie Deschamps wrote today for the Court.
"The policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse," she said. "They therefore do not constitute a minimal impairment of freedom of expression. Advertising on buses has become a widespread and effective means for conveying messages to the general public."
In the summer and fall of 2004, CFS and the British Columbia Teachers' Federation (BCTF), attempted to purchase advertising space on the sides of buses operated by the transit authorities.
The CFS wanted to encourage more young people to vote in a provincial election scheduled for May 17, 2005 by posting advertisements about the election. The first advertisement, which was to run the length of the bus, would have depicted a silhouette of a crowd at a concert, with the words: "Register now. Learn the issues. Vote May 17, 2005. ROCK THE VOTE BC.com."
The second advertisement would have run along the top of the bus, and read: "Tuition fees ROCK THE VOTE BC.com Minimum wage ROCK THE VOTE BC.com Environment ROCK THE VOTE BC.com."
The BCTF, the exclusive bargaining agent for more than 40,000 public school teachers in B.C., wanted to express its concern about changes in the public education system. Its ad was to have read: "2,500 fewer teachers, 114 schools closed. Your kids. Our students. Worth speaking out for."
In 2006, the B.C. Court of Appeal ruled that the refusal to carry political and controversial advertising violated the Canadian Charter of Rights and Freedoms.
The publicly owned transit companies argued that maintaining the ban was in the public interest by ensuring "a safe and welcoming environment" for riders and drivers and minimizing exposure to "potentially offensive messages."
The agencies argued their polities were created in order to prevent anyone from thinking the corporations endorsed political views that advertisers might seek to place on them. They said passengers have to approach, enter and ride on the vehicles, and thus are "captive" to the messages on the inside and outside of them.
An intervenor in the case - the B.C. Civil Liberties Association - argued that political advertising lies at the heart of the Charter section that protects freedom of expression.
"In a world where advertising is ubiquitous and appears in public spaces of every description ranging from billboards on private buildings to web pages of private search engines, every citizen has learned to distinguish between the message and the owner of the location where the message is delivered," the BCCLA argued.
"Many public mediums, including magazines and newspapers, routinely accept political and advocacy advertising, while maintaining editorial and content independence for the newspaper itself."
The BCCLA pointed out the same ads that were rejected were run in alternative media, "and met normal community standards of good taste and appropriateness for public display."