This fall, the B.C. Civil Liberties Association has awarded the University of Victoria a failing grade in Free Speech 101.
Lorenzo Bouchard is an “anti-treaty” protesters whose modus operandi includes carrying signs and handing out leaflets on the University of Victoria Campus. Several members of the university community complained, and a university panel found that his behaviour constituted “harassment” of Native students.
The panel recommended to the acting president of UVic that he be ordered to stop expressing his opinions regarding aboriginal rights on campus. To all of our surprise, the president accepted the finding that Mr. Bouchard had committed harassment and ordered him to stop his offending conduct.
Various overt acts comprised this “harassment”, including Mr. Bouchard’s making “aggressive eye contact” with passerby and holding out his hand to offer his pamphlets. One “deeply troubling” example of harassment was Mr. Bouchard’s “[t]urning to face [an aboriginal student] as she attempted to pass.” Although Mr. Bouchard did not say anything in the “event”, he “forced [the student] to become engaged… and [and] deprived her of her right to remain a mildly curious passerby”.
Also, Mr. Bouchard was found to have tried to influence people’s opinions, as is revealed in this quote from the Panel’s findings:
Mr. Bouchard[’s]… major overriding intent [was] to initiate at least a change of mind… concerning the issue of treaty negotiations. We do not think we have to go any further than this to find his behaviour offensive.
UVic’s harassment code apparently does not require that the material be both intended to demean and also have the effect of demeaning; one or the other is sufficient. In fact, even “demeaning” is not required; simple “offence” appears to fulfill the definition. So unless a defendant can present evidence that the complainant did not feel offended, an accusation alone might, in almost every conceivable case, be sufficient for a finding of harassment.
Obviously, such fundamentally unworkable rules can be effective only through selective and arbitrary enforcement: This is, as we repeatedly emphasize, virtually the definition of an unjust law.
The animating philosophy behind the UVic panel’s decision involves a fundamental misunderstanding of the nature of rights in general, and the speech right in particular.
The UVic panel concluded that: “We value highly the concept of freedom of expression… A university is appropriately characterized as a place in which views that are disagreeable or even distasteful can be expressed. However, with rights come responsibilities. With duties, duties of care.”
Yet can it really be the “responsibility” or “duty” of a person not to freely exercise speech rights? By what standard is a right, which carries with it an obligation not to exercise it, a right at all? The right of free expression is not equivalent, for instance to the right to swing one’s fist, which as we all know ends where another’s nose begins. In fact, the right of free expression does not even begin until the speech reaches the ear of its listeners, and the legal protection of free speech is not necessary until the message offends or is deemed somehow harmful.
The university also asserts that Mr. Bouchard’s distribution of his “Freedom Flame” newsletter was in contravention of the university’s policy on the distribution of news and information publications on the campus. They suggest that the policy requires Mr. Bouchard to obtain prior approval of his pamphlets before he hands them out.
Of course, if the policy was interpreted as the university urges, to mean that no “outside publications” may be passed from one member of the “university community” to another without review of its content by the administration, it is a policy which is being violated hundreds of times every day by the UVic library, to name but one transgressor. It would also prohibit one student from handing a copy of Time magazine to a friend. Such an interpretation, as we reminded UVic, is absurd.
Absurd or not, the university has recently confirmed to us that it believes it has the authority to prevent political leafleting by students, staff or faculty (though it also admits it has never restricted it, except in the case of Mr. Bouchard). It points to municipal bylaws that purport the same thing, without acknowledging that no such bylaw has withstood constitutional scrutiny.
In truth, I might not want Mr. Bouchard picketing outside my workplace. I might also not welcome beggars, union pickets or people with too much perfume. But there is a vast gulf between what we would like and what we must tolerate in the interests of a free and democratic society. UVic does not seem to be getting this message.