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What is allowed on privately owned space, that the public can see? by pomeline

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· @pomeline ·
What is allowed on privately owned space, that the public can see?

I was thinking about something this morning, that I feel does not get enough attention in the free expression/censorship debate -- What is allowed on privately owned space, that the public can see?

Example : Can someone put up a 20ft tall billboard of a full frontal naked man on their private farm, if that land runs along the highway?

Most conservatives I asked, who I know to be pro free speech in other scenarios, said no. Most said "children might be able to see if they drive by, so there needs to be limits on ads".

Let's explore a little further on what that reality really looks like..

The 20ft tall image is not advertising any product for sale, so not an advertisement in the traditional sense. But a 20ft tall massive photo that -- while facing out towards the highway -- is still fully contained on their privately owned land.

Is it a violation of free expression to censor that?

If it's not a violation, and we allow a precedent for The State to encroach and mandate removal of expression on private property -- do we trust The State to not abuse that precedent? What does that say about 5th Amendment rights (if American) in general?

"Nothing graphic/sexual/violent in public spaces because kids could see" -- Most people generally accept that as an acceptable limit for ads in public (like on the subway, in malls, or billboards at Dundas Square).

And it's worth noting, conservatives who claim to be the pro free expression ones have a history of embracing that limit too.

More specifically, when relating to pro LGBT ads in public that depict a gay couple, or more recently advertisements on HIV and STI awareness that dealt with stigmas in a very modern way.

It's also why you rarely see those in the "any censorship on Facebook is bad, the Government should intervene" crowd fight for free expression when it comes to allowing nudity. Even though that absolutely falls under the umbrella of free expression! (Either kids potentially being able to view things is not a valid justification to censor, or what kids have the potential to see *does* matter. Which is it?)

So, back to societally accepted justifications for regulating advertisements ("No graphic/sexual/violent imagery in public spaces because kids could see").

We rarely question the potential for censorship there, or how that is defined.

Why do I have less rights to free expression than others on my privately owned land, just because other people might be able to see it in passing?

I looked into it, and it turns out this is not a hypothetical issue in Canada. It is a very real one, used to censor as recently as May 2019.

"The Justice Centre has filed a court application at the Court of Queenโ€™s Bench of Alberta on behalf of two individuals and a business challenging a bylaw of the Municipal District of Foothills. While permitting other large, highly visible signage that can readily be seen by drivers, the bylaw prohibits trailer billboard signs on the sides of highways, even when placed on private property."

The speech in question?

A sign that says "Canada has no abortion laws".

Placed on a privately owned trailer, on privately owned land, that faces onto the highway.

Even pro choice people like myself can acknowledge that what the sign said is well, technically true -- Canada does not regulate abortion at the federal level. They do it on the Provincial level and let hospitals and medical colleges regulate their standards & practices.

They didn't try to bring a charge with a hate speech offence, or bring them before a human rights tribunal. So the speech on the billboard is not illegal or discriminatory towards any individual or identifiable group.

Yet the municipality ordered the sign be removed regardless.

The JCCF is bringing a constitutional challenge.

So. All of that said, certainly an interesting exploration of principle we should all challenge ourselves on..

If you agree with some limits, do you trust The State to implement them exactly as you'd like?

Should we allow State to have censorship power on private property at all?

When does something turn into a piece of artwork on private property, vs an image the State has grounds to censor? Is it really all down to whether the image faces toward your house or toward the road? Why is it okay for a citizen's right to expression and private property to be conditional on wherever the government feels like building a road?

It is an important reminder of why we all need to be consistent with free expression, especially when contradictory to our own personal morals.

You may be okay with censorship when that advertisement is of a gay couple advertising an HIV clinic. But you never know when that same concession on censorship will be turned around and used to censor your pro life ad.

Conversely, people who think it's okay to censor this pro life ad? You never know when the next ring wing government will come in & use that precedent to censor you.
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