The Toronto Public Library (TPL) has recently instituted a controversial new Community and Event Space Rental Policy. Under the new policy the library can deny or cancel a room booking based on an assessment that “the purpose of the booking is likely to promote, or would have the effect of promoting, discrimination, contempt or hatred” for groups or individuals on the basis of “race, ethnic origin, place of origin, citizenship, colour ancestry, language, creed (religion), age, sex, gender identity, gender expression, marital status, family status, sexual orientation, disability, political affiliation, membership in a union or association, receipt of public assistance, level of literacy or any other similar factor”.
There is no question that this new approach is well intended. But good intentions don’t necessarily make for good policy. The British Columbia Civil Liberties Association (BCCLA) is among those who say that the new policy is a bad idea. We say that in requiring library staff to sort anticipated “good” speech from anticipated “bad” speech, the new policy is antithetical to the unique and critical mission of libraries to provide universal access to a broad range of information and ideas, including the offensive ones.
Just as libraries must vigorously defend against patrons attempting to have books removed for their alleged offensiveness, so must they remain ‘content-neutral’ with respect to what patrons might wish to discuss in community meeting rooms.
But wouldn’t this, as some would argue, make the library complicit in hate speech? In fact, that’s a fairly far-fetched hypothetical. There is much less speech that meets the legal test for “hate speech” than people suppose. In our view, this policy of prior restraint is much more likely to be complicit in “no-platforming” people trying to engage in discussions about deeply controversial topics.
For example, will gender-critical feminist speakers be denied access to room rentals on the grounds that their views could promote contempt for transgendered persons? Would a group supporting the Boycott, Divestment and Sanctions movement with respect to Israel be permitted to use a space, or will the library agree with complaints from those of the opposing political view that the discussion by BDS will be necessarily discriminatory? Will politically conservative groups be permitted to hold public forums on immigration policy or will that be deemed impermissible as likely to promote discrimination against racialized communities?
These are issues that we raised with TPL. And we very much appreciate that TPL assures us that it will continue to promote a diversity of views and not shy away from controversial topics in its collections, programming or room booking decisions. Our problem is that it is difficult to square the stance on intellectual freedom articulated by TPL with the actual policy it has just brought in which indicates something very different.
Is it possible to imagine the same policy applied to collections: A bar on acquiring any materials which could promote discrimination on that broad range of grounds? No, such a policy applied to collections would not accord with foundational principles of intellectual freedom. Nor can it do so applied to room access.
Simply put, you can’t “balance” suppressing speech with freedom of speech. Suppression of speech is the opposite of freedom of speech and the government is allowed to suppress some speech, but only if it can satisfy the test for justifying a violation of a constitutional right (a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society).
Would the TPL policy withstand a legal challenge? The TPL says it believes it would. There are others who are not so confident. But as important as the legal assessment may prove in the end, we are in fact only at the beginning. This is a new policy. The library community is very engaged in discussing this.
Before we ask about the Law, we should ask ourselves about the Library, its role and mission in a free and democratic society. In the view of the BCCLA, creating a welcoming and supportive environment is always a wonderful aim. But libraries properly do not allow that goal to trump the fundamental commitment to intellectual freedom that makes it inevitable that some people will not feel welcome or supported because of expressive materials that they find offensive. The library defends the presence of such materials, without defending the content. This should be as true for speakers as it is for authors.
>Micheal Vonn is the Policy Director at BC Civil Liberties Association.