From AJR,   June/July 2005

The Blog and the Ban   

An American blogger strikes a blow for freedom of information in Canada.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

As an inscription on the Peace Arch marking the international boundary between Canada and the United States in Blaine, Washington, proclaims, the two nations are "Children of a Common Mother," with similar legal systems derived from English common law. The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms both guarantee freedom of the press, as well as the right to a fair trial.

But those two rights sometimes collide. When they do, it's up to the courts to strike the balance between them. The result can be very different depending on which side of the 49th parallel you reside.

In the United States, the free press almost always prevails. Since 1976, when the Supreme Court voided a gag order on the news media in a murder case in Nebraska Press Association vs. Stuart, it's been almost impossible for a trial court to control pretrial publicity, even if it might prejudice potential jurors. The high court said that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights" and are presumed unconstitutional, especially if the information involved is derived from a public proceeding.

In Canada, though, it's a different story. It's true that in 1995, the Supreme Court of Canada adopted what appears to be a similar rule, in Dagenais vs. Canadian Broadcasting Corporation. It held that a publication ban--what we call a gag order--could be issued only if necessary to prevent a real and substantial risk to a fair trial, if no reasonable alternatives would prevent the risk, and the positive effects of the ban would outweigh the harm to free expression.

Yet courts in Canada still occasionally impose publication bans and will hold news organizations in contempt of court if they violate them. The result is that Canadian journalists generally respect these orders.

That's not always so with their more unruly siblings south of the border. In 1993, when American television networks defied a publication ban and reported details of a horrific murder trial in Ontario, Canadian cable operators blacked out the newscasts. Stories about the trial were deleted from editions of the Buffalo News slated for distribution in Canada, and Canadian customs officers confiscated copies of the American version at the border from people carrying more than one copy. A similar confrontation is brewing as news media in Seattle prepare to cover the trial of an accused serial killer in British Columbia early next year.

Canadian judges have no jurisdiction outside of their own country, so they can't punish American media for refusing to observe the ban. Courts in the United States aren't likely to enforce orders issued by foreign courts if they violate Constitutional principles. Nevertheless, some U.S.-based news organizations, including the Washington Post, have abided by the Canadian orders, at least some of the time.

But Canadian judges can't count on the non-mainstream media to be quite so respectful. In April, in what one Canadian writer called the "clash of the blog and the ban," Ed Morrissey, the Minnesota-based publisher of a Weblog called Captain's Quarters, decided to publish details of an investigation into a corruption scandal known as "Adscam." The hearings in Montreal involve allegations that former Prime Minister Jean Chretien and his Liberal Party siphoned off funds earmarked to persuade Quebec separatists not to break away from Canada, a scandal which some predict could bring down the current government.

The presiding judge, John Gomery, had issued a publication ban in late March. Even though the print and broadcast media were allowed to attend the hearings--along with any members of the public who could find a seat--they weren't allowed to report on the testimony of three witnesses who are facing criminal trials on related charges. Even while they were filing challenges to the ban, the Canadian news organizations respected it, deleting references to Morrissey's site name and address from their stories out of fear of being held in contempt if they helped the public gain access to his reports.

But despite the ban, someone continued to funnel the hearing testimony to Morrissey. Denied the information by their own media, intrepid Canadians flocked to his Web site. The Christian Science Monitor reported that one Canadian blogger linked to Captain's Quarters, saying that he didn't want his children to grow up in a country "where public testimony can be known by government officials and by the media, but by no one else."

On April 7, Gomery lifted most of the publication ban. Although his order makes no reference to it, surely Morrissey's blog and the public reaction to it were factors in his decision.

Meanwhile, some Canadian legal experts have suggested that Gomery didn't have the authority to issue the publication ban in the first place. And Canadian judges may conclude that the only way to stanch the free flow of information will be to close proceedings like these to the press and the public.

But having had a taste of freedom of information, it seems unlikely that the Canadian people will tolerate being treated like children any longer--thanks to one American blogger, and to the First Amendment of their neighbor to the south.