Emily Post is out of place on picket lines

by A. Alan Borovoy
General Counsel
Canadian Civil Liberties Association

It's one thing to endorse the Ontario government's aim in seeking an injunction against certain anti- abortion picketing in the province. After all, some of the pickets are accused of having committed criminal offences - a number of them against pregnant women.

But the government's method is another question entirely. If picketers have committed crimes, why doesn't the government prosecute them? The virtue of prosecutions is their narrow focus on individual wrongdoers. Injunctions, however, cast an excessively wide net.

In this case, for example, the government is asking the court to restrain not only violent obstruction but also peaceful picketing. Thus, the violent deeds of some would serve to muzzle the non-violent words of others. In view of the importance of the right to picket, that would hardly be appropriate or fair.

After suffering years of injunction injustice, the labour unions secured remedial legislation. An injunction against labour picketing now requires convincing evidence that, without it, the police will not be able to protect the public peace and the rights of the parties. There's no reason to accept anything less for non-labour picketing. (Remember, the police can already separate the parties so as to reduce the likelihood of violence.)

In the event that an injunction could later be justified, its scope should not exceed what is needed to achieve the government's legitimate objectives. There can be no ethical objection, for example, to restricting picket-line activity that is clearly unlawful such as assaulting, impeding, obstructing, blocking, and threatening.

Unfortunately, the government's proposed injunction would also restrain the pickets from using "insulting" or "abusive" language. But, so long as such language does not threaten physical violence, it is not necessarily unlawful. Moreover, such a prohibition might be incurably vague. When do unkind words become "insulting" or "abusive"? The practical impact of this is that the polemics of picket lines might have to observe the prescriptions of Emily Post. Imagine how such a precedent could affect the picket lines of environmentalists, consumer boycotters, and aboriginal activists.

Another feature of the proposed injunction is to stop the pickets from using "defamatory" language. Such a restriction would likely cast a chill over the kind of invective the abortion conflict normally generates. To what extent, for example, are epithets such as "sinner" and "baby killer" defamatory? Perhaps there is an argument for curbing certain injurious words that the pickets have already used. But to invoke the contempt power of the courts, in such an indefinable way, against what might be said in the heat of controversy is to risk muzzling legitimate speech.

The government also wants to ban picketing at the homes of the clinic doctors and staff. While the interests of personal privacy do create an argument for some such measure, there could be serious problems. To what extent, for example, should intransigent employers, slum landlords, and racist proprietors be able to claim such a haven? Suppose a residence were the only practical place at which non-violent pressure could be exerted against some contentious behavior? Obviously, the balance to be struck is a difficult one.

To whatever extent residential areas are to be officially "off limits" to freedom of expression, the appointed judges should not be deciding these things on their own. The creation of such a "picket- free" zone should require, at the very least, that the elected legislators attempt to devise acceptable guidelines.

In the meantime, however, a legitimate injunction would not disturb peaceful picketing even if the pickets used unpleasant - but not threatening - invective. If such an approach could not adequately secure medical rights and the public peace, a wider remedy could still be sought at that point. In no event, however, should such an injunction even be attempted, unless ordinary policing proved inadequate.

While it's necessary to protect the free choice of patients and doctors, it's also important in a democratic society to protect the free speech of protestors and pickets. The government should reassess its approach.