Attacking Ad Censorship

The Globe's decision to carry a Scientology ad supplement is good news for all advertisers
The Globe and Mail recently ran an advertising supplement by the Church of Scientology that caused a great stir amongst many of the newspaper's readers. They harshly denounced the paper for either publishing the ad, or being seen as "tacitly" endorsing the advertiser in question.

So large was the readership hue and cry, that The Globe took the unusual step of publishing its own advertisement in which it defended the ad's publication on the basis of free speech principles and the role of a newspaper in upholding those principles notwithstanding a commercial context. The extent of the controversy even caused the paper to devote its weekly "Papermaking " column to the subject.

No issue goes to the heart of the marketing community more than "censorship of advertisements." The greatest copy in the world is worthless if it becomes the prey of the censor's black pen, or if a newspaper refuses to publish the ad because the editor arrogantly believes the product or service being promoted is not worthy of the public's consideration.

Consequently, the decision of The Globe to publish the Church of Scientology supplement, and its defending of the publication with forthright l anguage in the face of such an outpouring of condemnation, is a significant one to the marketing community.

What is particularly noteworthy about The Globe's position is that it had the legal right to arbitrarily reject the advertisement in question. That was the position of the Supreme Court of Canada in a 1974 advertising case involving such a rejection by the Vancouver Sun.

In that case, the Supreme Court stated that a newspaper is able to refuse to publish an advertisement on the mere basis that the material being advertised offends its editorial position. Justice Martland, speaking for the Court's majority, stated the law as follows. "The law has recognized the freedom of the press to propagate its views and ideas on any issue and to select the material which it publishes. As a corollary to that, a newspaper also has the right to refuse to publish material which runs contrary to the views which it expresses."

Justice Dickson wrote a detailed and insightful dissenting opinion. He concluded his judgment this way: "I do not think a newspaper...can insulate itself from human rights legislation by relying upon 'honest' bias, or upon a statement of policy which reserves to the proprietor the right to decide whom he shall serve."

Reading the majority and minority decisions in that case, one is exposed to two competing, yet legitimate positions articulated by two of Canada's most senior and respected jurists.

For reasons to be explained, the decision of The Globe and Mail to publish the advertisement in question vindicates the legal process displayed in the Vancouver Sun case.

It is too easy to see the Vancouver Sun judgment as simply a split decision in which one side won, the other lost, with a bare majority sanctioning arbitrary censorship of advertisements. Rather, one can view the judgments in the case as providing a working framework for newspapers. This could be the legacy of any senior court's decision in a case that does not lend itself to right or wrong answers.

Reading Justices Martland and Dickson's decisions "together," the overall message that the Supreme Court (as a Court) may have given to Canadian society is that while newspapers will always have the right to exert arbitrary editorial control over advertisements they publish, newspapers must possess a strong presumption against the exercise of that right.

It would seem that this is the sum and substance of the recent decision of The Globe. No one should doubt for a moment the willingness of The Globe to exercise control of advertisement publication in a given situation. On the other hand, that newspaper has shown that it will nonetheless invoke that right sparingly.

For this reason, the legal process has been poignantly vindicated by the manner in which The Globe and Mail has chosen to conduct itself. The legal process at the appellate level is not only to correct legal errors made by subordinate courts, but also to provide the opportunity for competing positions to be fully explored from a legal policy standpoint. When difficult and important subjects are involved, by sometimes reading the majority and minority decisions together, in context, one may find the space within the area where two circles intersect. Not that truth and justice reside within that place, but quite often wisdom will.

More than two decades later, the wisdom of the judgments in the Vancouver Sun case has shown itself. The Globe and Mail has found the space within the intersection of the majority and minority decisions in that case. It may be that Canada's national newspaper has set a national precedent.