Public Libraries and Freedom of Expression

Should we expect our public institutions to protect our freedom of expression?  The Toronto Public Library made a controversial decision in July 2017 to permit a memorial to the late Barbara Kulaszka to be held in a rental space in one of the library’s branches. Ms Kulaszka, a former librarian, was a lawyer best known for her legal defence of Holocaust deniers and white supremacists. Many people registered their objection to the event, both before and after it took place. These people include the President of the Toronto Public Library Workers Union and the Mayor of Toronto, John Tory. Mayor Tory has asked for a review of library policies under which the City Librarian, Vickery Bowles, says the event was given permission to proceed.

Fewer than two dozen people attended the memorial. The event was monitored by a library staff member whose purpose was to ensure that no laws, including laws against hate speech, were broken. It appears that this individual was instructed to call police if he or she thought that a law was being broken. Really? Charging a person with public incitement of hatred, or willful promotion of hatred requires the consent of the Attorney General of Canada. Did the library staff member have the expertise to identify such an offence, and to distinguish it from the library’s other obligations, to ensure the equitable delivery of its services and to uphold the Canadian Charter of Rights and Freedoms. If not, what was his or her purpose in attending this memorial gathering? To keep the volume down?

The Toronto Public Library’s “Underlying Principles” are published on line as follows:

Toronto Public Library's mission is to provide free and equitable access to services that meet the changing needs of Torontonians. The Library preserves and promotes universal access to a broad range of human knowledge, experience, information and ideas in a welcoming and supportive environment. The Library establishes Rules of Conduct to foster this environment for all users. The Library is committed to applying the Rules of Conduct in a fair and equitable manner, both substantively and procedurally.

The TPL also makes clear that using their space does not imply that the library is giving its imprimatur to the purpose of the meeting – anymore than carrying a book implies approval of the book’s contents.

What are the expectations for those who rent library spaces? Under its terms of use, the library states that the use must be for a lawful purpose. And under the Rules of Conduct, the uses must comply with the Ontario Human Rights Code. For those who breach the rules, there are a list of possible suspensions and exclusions. Breaches of the rules can lead to a verbal as well as a written warning.

Since the Ancient Library of Alexandria, governments have understood the value of maintaining collections of knowledge and ideas. Our libraries stand as a measure of our societies. Without libraries, all societies are diminished. Even the smallest branches of our local libraries hold thoughts and views that will challenge, dismay, enjoin, delight, offend and support nearly everyone. We only ask the people who enter the libraries to refrain from disturbing other patrons who choose to be present at the same time. We do not ask that they hold or refrain from any particular views or beliefs, or even that they have the capacity to read.

Quite a few toddlers have their own library cards and are regular if somewhat noisy and messy users of my local library. They have been known to have voluble disagreements, too. Some have called others unpleasant names. I have seen a few cookies thrown. I doubt, however, that any of these individuals have received written warnings. Most adults know not to pay too much attention or we risk reinforcing negative behavior.

Barbara Kulaszka gained fame (or notoriety) for her defence of such neo-Nazis as Marc Lemire and Ernst Zundel. She edited Zundel’s infamous “Did Six Million Really Die?” and collaborated with Doug Christie whose Canadian Free Speech League gave her their “George Orwell” award. There is little doubt that she, like Christie, was a fellow traveler of the white supremacists she defended. Not the sort of person many of us enjoy spending time with, for sure. And, those such as Paul Fromm, who organized and spoke at her memorial are known for their similar views.

I have two concerns about the event and its sequelae: The public should understand that public libraries are public. As such, libraries have cannot use prior restraint when they decide who can use use their facilities. We should all understand, that once people have agreed to abide by the library’s rules of conduct, the library is content-neutral on what is said in that rental space. As City Librarian Bowles said in a CBC interview, denying access to people based on their views “… not only contravenes the Canadian Charter of Rights and Freedoms, the principles of intellectual freedom, but [it also contravenes] the cornerstone of the library's mission and values." 

My second concern is one that my late colleague, A. Alan Borovoy, General Counsel of the Canadian Civil Liberties Association, expressed so well. When Ernst Zundel was charged and then tried in court under the then False News section of the Canadian Criminal Code, Zundel bragged that he and his ideas got more publicity than he could ever have afforded to pay for. Borovoy’s response was that Zundel should not even have been charged.  Borovoy and the Canadian Civil Liberties Association fought for the section to be struck down as an unconstitutional limit to freedom of expression. They won. This fight cost Borovoy friends, as well as support from certain sectors of the Jewish community.  

But as Borovoy frequently said about those whose ugly or hateful speech had drawn public attention, “they should have been allowed to wallow in the obscurity they so richly deserve.”