The city of St. Catharines, Ont., recently repealed a bylaw that regulates the display of pictures of fetuses — a mere 10 months after city council unanimously passed the bylaw.
The repeal occurred on the eve of a court hearing to decide the constitutional validity of the bylaw, titled Bylaw to Regulate the Delivery of Graphic Images. Seven other Canadian cities and towns — some in Ontario, some in Alberta — recently adopted the same bylaw.
These bylaws are all exercises in targeted political censorship, disguised as initiatives to protect residents’ health and safety.
The bylaw’s title is a misnomer. It did not apply to all graphic images, but only regulated images “showing or purporting to show a fetus.” It required such images, if delivered to residences, to be contained in opaque envelopes with a “graphic” and “disturbing” content warning. It also plainly applied to non-graphic images of a fetus, like an ultrasound scan.
This was no accident.
The bylaw was clearly politically motivated. When it was adopted, the St. Catharines city councillor who first raised this matter thanked the pro-choice group Niagara Reproductive Justice for its advocacy. That group and the Abortion Rights Coalition of Canada were indeed leading advocates.
The coalition, which submitted the only written brief in support of the bylaw, told council that “anyone who strongly values reproductive rights may experience the images like a gut punch, because they represent an infuriating challenge to their fundamental human rights.”
Three recent court rulings have involved non-graphic fetal imagery in advertising by pro-life groups. The coalition cited one of these cases in its submission to council in support of the bylaw.
Yet the coalition also insisted the bylaw “is not about censoring one viewpoint while advancing another” but is simply about residents’ safety and rights.
They protest too much.
The coalition identifies as “Canada’s only national political pro-choice advocacy group.” It boasts on its Facebook page that bylaws like St. Catharines’ are part of its strategy to prevent “Conservative politicians” from taking away abortion rights. The coalition and other pro-choice groups routinely try to get (non-graphic) pro-life ads canceled. They do so by complaining to cities that such ads deceive people by implying that unborn children are children, or human beings, or persons.
Pro-life advocates consider the use of images as critically important. Something as simple as an ultrasound image instantly reminds people of an unborn child’s humanity. My client, which launched the court challenge, has long used ultrasound images of unborn children (never aborted children) in its advocacy.
Other pro-life activists use images of aborted babies. They should not be singled out for censorship either. A reasonable discussion can be had about whether certain restrictions on the use of gory or disturbing images are justified. But in a free and democratic society, such restrictions should be viewpoint neutral.
Freedom of expression is constitutionally guaranteed so everyone can manifest their opinions and ideas, “no matter how unpopular, distasteful, or contrary to the mainstream,” the Supreme Court has said. There are limits, to be sure, but limits must be imposed fairly.
The city of St. Catharines may not target political opinions or points of view for censorship because some people — or even most people — find them offensive. Activists and advocates in a constitutional democracy must be subject to the same rules, regardless of their political persuasion.
Even Canada’s jurisprudence on hate speech affirms this basic approach. Hate speech laws do not target opinions or political positions per se. Rather, their focus is the anticipated effect of the speech in question — would it generate extreme feelings of hatred in others toward an identifiable group of people?
St. Catharines’ city council has not given up on the idea of regulating graphic images. But its decision to repeal this bylaw may signal that council now understands freedom of expression protects viewpoints with which it disagrees.
According to council meeting minutes, council has now instructed its staff — who it is hard not to feel sorry for — to find evidence of negative effects of graphic images to inform the introduction of a revised graphic images bylaw.
It may prove hard to show how graphic images used for the pro-life cause would threaten people’s health, while graphic images used for any other social or political cause would not.
So perhaps council will play fair and come up with a bylaw regulating graphic images of all kinds. In which case it will likely upset advocacy groups of all kinds, too. Possibly even pro-choice ones.
