Captive Audiences and Bubble Zones

Supporters of the recently enacted bubble zone by-law in Toronto argue that the law is necessary to protect individuals, who are entering and leaving places such as synagogues and religious schools, from harassment and intimidation by protestors. While very little was said in these debates about the protection of “captive audiences” from speech they find objectionable, this concern is, I think, implicit in the claim that the speech of protestors, and more particularly pro-Palestinian protestors, is harmful. 

In a recent editorial, the Globe and Mail defended the by-law, arguing that each one of us has a right not to listen to what others might want to say to us:   

The right to free speech has a companion: the right not to listen. When people don‘t have the freedom to walk away, when they are embarrassed, frightened and humiliated as the price of going about their day, they are truly captive to hostile messages.

According to the Globe’s editors “The [pro-Palestinian] protesters’ freedom to speak has extinguished the right not to listen”. The editorial also noted that:

Even in the United States, where free expression is protected by the First Amendment, speech that is “so intrusive that the unwilling audience cannot avoid it” will not always be protected, as the late Supreme Court justice John Paul Stevens wrote in a 2000 ruling on a bubble-zone law. He said the “verbal and visual assault” may justify limits, more than the content of the speech itself.

It is true that the American courts have in some cases taken a relatively broad view of the right not to listen (involving captive audiences). Yet the US courts’ concern about captive audiences is tied to their refusal to uphold laws against hateful and other forms of harmful speech. Hate speech is not banned in the US but its expression in locations where it is difficult for individuals to avoid seeing or hearing it (a captive audience) may be restricted. In Canada, however, the courts have upheld state restrictions on hate speech and so audiences do not need this reduced form of protection against hate speech or racist harassment. 

In the following post I will argue first that the by-law rests on the view that individuals should not be confronted with messages they don’t want to hear – that this amounts to harassment – and second that this view is inconsistent with our constitutional commitment to freedom of expression and freedom of peaceful assembly. 

I will begin with an excerpt from my recent book The Life and Death of Freedom of Expression (University of Toronto, 2024), which discusses the issue of captive audiences and bubble zones, after which I will discuss the Toronto by-law.  

In a society in which communication (other than with family and friends) is mostly mediated (through broadcast, print, and Internet) listening is generally a choice. The individual is free to tune in or tune out. The ability of individuals to opt out of online conversations or to choose not to read or access an information source has contributed to the formation of “echo chambers,” in which individuals are exposed to a limited range of perspectives. Even when individuals choose to read or listen to opinions with which they disagree, because the speech is mediated, they are not required to react to its message or to engage in any way with the speaker.

However, in public spaces such as the streets, individuals may be directly exposed to, or confronted with, messages they find objectionable. The courts have been willing to uphold restrictions on speech that is harassing – that it is directed at particular individuals or groups, often in a persistent way, and is intended to denigrate or humiliate them. In exceptional situations, the courts have also been willing to uphold speech restrictions that protect “captive audiences” from offensive speech in public locations, even when the speech is not directed at particular individuals.

Restrictions protecting captive audiences represent a second tier of censorship. Even if a particular form of expression is not harmful in a way that would justify its general restriction, its location may be restricted to protect audiences from exposure if it is considered to be offensive or objectionable. In deciding whether to recognize a captive audience claim, a court must consider, first, how easy or difficult it is for the unwilling audience to avoid exposure to the communication, and second, whether the communication is offensive or objectional to such an extent that an unwilling audience should be protected from exposure. There is no simple answer to the question of how direct the exposure to the speech must be before the audience is “captive.” Nor is there an easy or objective way for a court to decide whether the speech is so offensive or objectionable that a captive audience ought to be protected from it. Such a determination cannot rest simply on an individual’s assertion that she/he is offended by the speech but must rest instead on conventional or community standards of propriety or decency.

In R. v. Labaye, [2005] 3 S.C.R. 728, the Supreme Court of Canada said that individuals have a right not to be confronted with sexually explicit images or acts they find offensive or inappropriate. In the court’s view, individuals should be free “to live within a zone that is free from conduct that deeply offends them”. The court described the harm of being confronted in public with “unacceptable and inappropriate conduct,” as “the loss of autonomy and liberty that public indecency may impose on individuals in society, as they seek to avoid confrontation with acts they find offensive and unacceptable”. The court thought that this determination should ordinarily be made on the basis of expert evidence. However, judgments about decency necessarily rest on conventional standards of propriety which are changeable and contestable. While many in the community may be offended by certain actions or images, such as a woman going topless, others may take no offence to these actions.

Several Canadian provinces have enacted laws establishing bubble or buffer zones around abortion clinics. The Access to Abortion Act in British Columbia, for example, creates access zones around abortion clinics, as well as the homes and offices of abortion providers. These zones, which are carved out of space that is otherwise public, exclude protestors from the immediate vicinity of the clinics. The BC Court of Appeal, in R. v Watson and Spratt, 2008 BCCA 234, held that the BC law was a reasonable restriction on the freedom of expression rights of anti-abortion protestors. In the court’s view, the law was intended to ensure “equal access to abortion services,” to enhance “privacy and dignity for women using the services,” and to improve “security for service providers”. The court thought that “[w]omen entering the clinic should not be held hostage to the message the protestors wish to send”. The buffer zone established by the law “offers distance and therefore protection to the staff and patients of the clinic from the physical threats and emotional upset caused by the actions of the protestors and the proximity of their strong message”. The court also thought that because “the line between peaceful protest and virulent or even violent expression against abortion is easily and quickly crossed … a clear rule against any interference” is the best way to achieve the law’s purpose. When the object of the law is to ensure unimpeded access, it is impractical to require the authorities to make a decision about “each individual approach to everyone entering the clinic”.

The BC Court of Appeal in Watson drew on an earlier Ontario case, Ontario (AG) v. Dieleman [1994] 20 OR (3rd). In that case an Ontario Superior Court judge, when issuing an injunction against protests in the immediate vicinity of several abortion clinics, said that freedom of expression “does not include the right to have one’s message listened to”. The judge thought that “an important justification for permitting people to speak freely is that those to whom the message is offensive may simply avert their eyes or walk away. Where that is not possible, one of the fundamental assumptions supporting freedom of expression is brought into question”. But this claim may go too far. While audience members should not be required to stop and listen to a speaker’s words, they are not entitled to have the public sphere organized in such a way that they can avoid exposure to messages they would rather not hear. Captive audience claims should only succeed when an individual is directly confronted with messages that are offensive or invasive, based on conventional standards of privacy and decency. The establishment of bubble zones around abortion clinics protects the privacy and safety of those attending the clinics, who have made the deeply personal and often difficult decision to terminate a pregnancy. Protection from exposure to speech we don’t like, though, must be exceptional, otherwise we risk turning public spaces into places that can only be used for personal or commercial purposes. As the Supreme Court of Canada said in Greater Vancouver Transit Authority v. Canadian Federation of Students, 2009 SCC 31: “Citizens … are expected to put up with some controversy in a free and democratic society”. Democratic politics is possible only if we are able to speak to others, including strangers, about difficult and contentious issues.”

The recently enacted City of Toronto Bylaw, provides for the establishment of bubble zones (”access areas”) around properties, such as places of worship, schools, and day-care centres (“social infrastructure”), within which the following activities are prohibited:

A. While in an Access Area, no person shall:

(1) perform or attempt to perform an act of disapproval concerning a person’s attendance at, use of, or attempts to attend or use Social Infrastructure;

(2) persistently request that a person refrain from accessing Social Infrastructure;

(3) obstruct, hinder or interfere or attempt to obstruct, hinder or interfere with another person’s access of or attempt to access Social Infrastructure; or

(4) express an objection or disapproval towards any person based on race, ancestry, place of origin, colour, ethnic origin, citizenship, religion/creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance by any means, including graphic, verbal, or written means.

(I note that the size, and potential duration, of the by-law’s bubble zones, were increased by an amendment introduced during the vote at city council.)

Toronto already has bylaws limiting loud or persistent noises and obstruction of movement on public properties such as the streets and sidewalks. The Criminal Code of Canada prohibits the disturbance of religious services, intimidation (repeatedly following or communicating with an individual or besetting their home of workplace), harassment (causing someone to fear for their safety). 

At the end of its list of activities that are prohibited within a ‘bubble zone’ the by-law says this: 

For greater certainty, Subsection A does not prohibit peaceful gatherings, protests or demonstrations, including any such activities that occur as part of a labour union strike, information pickets and/or activities related to labour disputes.

This is not simply a statement of the obvious – that protest can occur outside the bubble zone. The provision specifically says that the listed prohibitions should not be read as extending to peaceful protest. Under the by-law then limited forms of protest may occur within a bubble zone. But what these might be is not clear. Could this include, for example, a protest with signs or chants that call for an end to genocide? I suspect that supporters of the by-law think that the law (when invoked) would ban this form of protest under one or more of its prohibitions. Certainly, the bylaw, under A1 above, appears to prohibit forms of protest that would ordinarily be considered peaceful and protected under the Charter – for example a protestor speaking to someone to discourage them from attending a meeting. 

The belief that the protestors’ speech is harassing or intimidating rests on the idea that individuals should not have to hear messages they don’t want to hear. And so even if the protestors’ speech would be constitutionally protected if delivered in another public space (because the content of the speech is not itself unlawful), the protestors have no right to express these views to a captive audience that does not want to hear them: To be confronted with views you don’t want to hear is a form of harassment. The right not to listen underlies the view that these forms of protest are appropriately subject to restriction; yet this right, which was neither explained nor defended in the debates, represents a fundamental challenge to our commitment to freedom of expression. 

This takes us to the real problem with the by-law. The by-law says that peaceful protest is still permissible and as Jamie Cameron in another CFE blog post has observed, protest is still peaceful under s.2 (c ) of the Charter of Rights even when it is disruptive. Demonstrations disrupt, to a greater or lesser degree, the ordinary operation of public spaces or the routines of community members. Public protests are often significant or effective as speech, precisely because they are confrontational and potentially disruptive. In Bracken v. The Town of Fort Erie, 2017 ONCA 668, the Ontario Court of Appeal emphasized that a “a protest does not cease to be peaceful simply because protestors are loud and angry”. In that case a lone protestor standing at the entrance to the city hall had communicated his message using a megaphone. In Fleming v. Ontario, 2019 SCC 45,the Supreme Court of Canada confirmed that the police could not prevent lawful expression because this expression “might provoke or enrage others”.

Protest, particularly in this political moment, is viewed very differently by different groups in the larger community. Some members of the Jewish community regard pro-Palestinian protests as anti-Semitic, because in their view these protests oppose Israel’s right to defend itself (following the brutal Hamas-led attack that occurred on Oct 7, 2023), and more generally to exist as a Jewish homeland. In their view then when these protests occur in their presence (when they are a ‘captive audience’) the protests are harassing and intimidating. The protestors, on the other hand, believe they are responding to a genocide that is supported by elements of the Jewish community in Canada and by the Canadian state. They are calling for an end to the mass killings in Gaza by Israeli forces and to the occupation of Palestinian lands by Israel. They regard their protests as peaceful and restrained, given what is at stake. 

There is certainly a case to be made that children entering a school should not be confronted by angry or hostile protestors – that what counts as unacceptable harassment is different in the case of children. Perhaps the same may be true for individuals attending religious services, although that is less clear. However, as I understand it, the relatively few protests that have occurred near the places listed in by-law have been directed at pro-Israel political meetings – notably a session about purchasing property in East Jerusalem. 

The question then is how will city officials apply the by-law when assessing an application for the establishment of a bubble zone at a particular location?  And if an application is granted, and challenged in the courts, how will the courts interpret the by-law given the city’s claim that the bylaw does not restrict peaceful protest and is consistent with the Charter’s commitment to freedom of expression and the freedom of peaceful assembly?  The by-law has been opposed by those who support pro-Palestinian protests and supported by those who are against such protests and regard them as anti-Semitic and harassing. Both sides then seem to agree that by-law will result in the prohibition of these protests in specified locations even when they are directed at political events and are in most cases peaceful. 

A restriction on speech or assembly cannot be based simply on the audience’s interpretation of the protestors’ speech or on their subjective experience of that speech. Speech or assembly cannot be restricted simply because someone feels uncomfortable with what is said or reports that they feel harassed or threatened by the speech. A commitment to free expression and to peaceful assembly means that we will sometimes be exposed to words we do not wish to hear and which we may find offensive and even hurtful. To repeat what was said earlier: Democratic politics is possible only if we are able to speak to others, including strangers, about difficult and contentious issues.