Section 2(b) Advertising Rights on Government Property: Greater Vancouver Transportation Authority, a New Can of Worms and the Liberty Two-Step?
33 Dalhousie Law Journal 1, 2010
31 Pages Posted: 5 Jul 2012
Date Written: 2010
The Supreme Court’s recent decision in Vancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights Dunmore/Baier analysis, which means that policies restricting expressive rights based on groups rather than content could be less likely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to apply the positive rights Dunmore/Baier criteria only where the claim is for an audience with the government or access to government funding. Second, the Court’s section 1 analysis provides sparse and problematic guidance for addressing the now opened can of worms that is sure to arise from the government sale of private advertising in a legal context that draws the censorship line above controversial content but below offensive content.
Keywords: advertising, government, transportation
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