Washington, D.C.
October 16-18, 1996

Redefining Higher Education

Development of Enterprise-Wide Information Policies

Frances Groen, Director of Libraries
McGill University

In June of 1995, I reported a short case study in College and Research Libraries, and, as a result of that, I was asked to come and speak with you today. The report described the McGill Library experience in challenging a Suppression of Information order, which came about from a legal gag order in a murder trial case.

I will briefly describe that case study to you, reflect on it even more briefly in light of the Communications Decency Act (CDA), and then talk about a few constitutional differences between Canada and the United States that are reflected in some of the decisions.

First, the case study. In the spring of 1994, McGill University reacted to a publication ban regarding the details of a murder trial. In brief, the circumstances were as follows. A grizzly multiple murder case came to trial in Ontario in late spring of 1993. Two separate trials of a husband and a wife, both accused of these murders, were to occur.

Prosecutors had to guarantee that the evidence presented in the first trial, that of the wife, Carla Homolka, did not influence the subsequent trial of the husband, Paul Teale, which was scheduled for approximately 18 months later. For this reason, Ontario Justice Francis Kovacs imposed the following gag order on July 5, 1993: “There will be no publication of the circumstances of the deaths of the victims referred to during the trial, and they shall not be revealed directly or indirectly to a member of the foreign press.”

While allowing reporters into his courtroom, Kovacs sought to limit severely any details in the media. Foreign press representatives were banned completely from the courtroom, since the court ruling could not control publications outside of Canada.

As a reminder of the ban (and an indication of the seriousness with which it would be taken) the Ministry of the Attorney General of Ontario issued a news release December 2 of that same year, five months following the original ban, stating that the Ministry was continuing to apply its policy of review and that it viewed any such potential breach of the publication ban most seriously.

These restrictions had implications for libraries. They required that librarians focus on the issue of dissemination and publication with respect to printed and electronic information in light of the court order. Although issues of publication and dissemination of information arise daily in the work of librarians, the ban created an environment in which the differences between publication, dissemination, and possession of information needed to be defined more precisely. Universities, especially those at which the computing center acts as a feeder for newsgroups over the Internet, formulated institutional policy and created precedents.

In the case of McGill University, a clear distinction evolved between the active dissemination of the news by the computing center and the mere possession of it by the libraries. The university’s computing center first reacted to the availability of a news discussion group, called , believing that the provision of this service constituted a violation of the publication ban. An interim decision was made to withdraw this newsgroup, pending a legal interpretation of the university’s responsibility. This decision was made on the basis that the Ontario court ban was considered to reach outside that province to us as the result of federal jurisdiction over the administration of the criminal justice system.

Many people on our campus became very, very angry at what they felt was censorship and interference with their inherent right to information. Some still remember this and are still very angry. But, in the opinion of McGill’s legal advisor, by failing to observe the ban the university would have been punishable for a criminal contempt of court charge. The legal advisor also developed a working definition of “publication,” which, in the case of the court ban, meant dissemination of information to any number of individuals in whatever form and through whatever medium.

Since the university policy to ban the newsgroup was confirmed to be not only proper but mandatory, it became essential to have legal advice on the appropriate action to be taken by the libraries. For instance, when a Montreal newspaper announced that the Washington Post would be publishing the details banned by the Ontario court, it was essential that the library administration formulate a staff policy for dealing with printed materials. During this process, the McGill libraries operated responsibly within the law. What they did not do was to jump to the conclusion that merely receiving printed publications in the normal course of activities was a criminal act. The concept of publication and distribution, implicit in the decision regarding the withdrawal of the newsgroup by the computing center, was not assumed to transfer directly to library policy. In formulating an appropriate library response, all issues, both practical and philosophical, were examined.

Several factors helped to shape our policy. One was that the variety of institutional responses received from directors of libraries in Canada indicated that there was no unified response to the distribution of the newsgroup. Further, the complexity of screening information as it arrives in the libraries, as well as the variety of formats in which information is available made it virtually impossible to guarantee that the library was not receiving material covered under the ban. Finally, we factored in the librarian’s value system as expressed in the Canadian Association of Research Libraries statement regarding freedom of opinion and expression of ideas.

We therefore welcomed the advice of McGill’s lawyers. In their opinion, there was a prohibition against publication and distribution of banned material, but not against mere possession. Placing the newspapers on the shelves of the periodicals section would not constitute a prohibited act. However, if the library or staff were to make multiple copies of the articles in question for distribution, this would be a prohibited act. Placing such material on reserve was also interpreted as a violation of the court order. Passive receipt, as a part of standard operating procedures, did not contravene the law. Theoretically, the police could come and seize the offending newspapers from the shelves. This would not mean that we had acted in breach of the ban since, on a practical note, it was virtually impossible for us to monitor the content of each and every periodical. The resulting library policy satisfied librarians, administrators, and almost all users who were aware of the controversy.

This all took place two years ago. Because our sensibilities had been greatly heightened by the incident, we followed the progress of the Communications Decency Act in the United States with great interest. The purpose, as stated in the amendment, was to provide protection against harassment, obscenity, and indecency to minors by means of telecommunication devices. This amendment was aimed at all participants.

Everyone here is also aware that the three-judge panel at the U.S. Court in Philadelphia ruled that the Internet is the most participatory form of mass speech yet developed, and deserves the highest protection from government intrusion. The panel went on to declare the CDA to be profoundly repugnant and an affront to the First Amendment, stating that the Internet deserves at least as much protection as printed materials. The Citizens Internet Empowerment Coalition rejoiced when, on June 12, a tribunal of federal judges granted the injunction. Citizens in both the U.S. and Canada welcomed the victory for free speech.

Although the defeat of the Communications Decency Act has no legal significance for Canada, it should prompt information professionals on both sides of the border to consider carefully some of the differences between our two cultures and our two constitutions. Under the Bill of Rights, the U.S. Supreme Court faces the nearly impossible task of reconciling the demands of collective life with a constitutional guarantee that acknowledges few, if any, restrictions on individual liberties. Individual rights become near-absolute entitlements under the First Amendment’s prohibition against abridgment of the freedom of speech. Any curtailment or restriction of this right must be on the basis of a discreet, isolated exception, rather than a limitation that may legitimate other such exceptions.

In Canada, under the Canadian Charter of Rights and Freedoms, some guarantees are qualified. A layperson may speculate that Canadian drafters of the charter looked at the vagaries of litigation spawned by the American experience and determined to impose certain restrictions on a Canadian rights guarantee. But such a hypothesis would ignore more fundamental cultural differences between our countries. It is a temptation here to indulge in political philosophy regarding the differences between a republic and a parliamentary democracy and the extent to which this impacts the guarantees of individual freedoms. However, censorship is equally odious in both cultures. The American attitude is deeply rooted in the idea of popular sovereignty, resting on a belief that the people, not the government, possess the absolute sovereignty.

The courts of the U.S. must continue to answer the question of whether the First Amendment means that government has no power to restrict expression because of its message, its ideas, or its subject matter, whereas the Canadian charter recognizes two distinct concepts, one of individual entitlement and one of state justification. Bear in mind here that the Canadian charter dates only from 1982, and, given that, it is said that charters tend to create competitions between and among rights. Perhaps that is why we see tension between the individual entitlement and state justification in our charter.

In the application of free speech law, the Canadian charter has mainly phrased questions in terms of constitutionality. It has not focused on individual situations the way that the U.S. Supreme Court commonly does when deciding whether laws are unconstitutional in their application to particular facts. Perhaps partly because they are beginning with a clean slate, the Canadian Justices have written opinions that explicate large domains. The Canadian Supreme Court is developing a distinctive balancing approach that avoids relying much upon categorical analysis. That approach leads it to sustain some measures that would probably be held unconstitutional within the United States.

The Supreme Courts of both countries see the guarantee of free speech essential to liberal democracy. Canadian legal rulings often discuss American cases, but do not import American doctrines. American decisions, though, pay little attention to what is happening in Canada. However, this may well be changing with legislation governing free speech over the Internet as the need to deal with the international nature of telecommunications and the flow of data across national boundaries is met.

When Chief Justice Kovacs rendered his gag order in the trial of Carla Homolka, he determined that the right to a fair trial took precedence over the absolute guarantee of freedom of speech. It would be tragic if a similar reprehensible crime were to occur in the United States, but my brief review of the differences between constitutional guarantees of freedom on expression in our two countries does not qualify me to speculate on whether the U.S. courts would have handled a similar case in a similar fashion.

Copyright � 1998 by Frances Groen

Question and Answer Session

MS. MARTIN (Georgetown University): I have a question for Frances. I am trying to get the timing right on this, but, if the incident you spoke of was about two years ago, we may have been in a situation where it was relatively easy for the computing center to block a particular news group. But even two years ago Netscape and Mosaic were in existence; so what happened to people's access to the Internet?

MS. GROEN: One of the issues for the university, as opposed to alternative methods of accessing, was the fact that our computer center acted as a feeder; it is the computer network for the province. So we were in a position of having to delete that particular file because of our accountability for the entire network.

Does that -- I may not be understanding your question fully.

MS. MARTIN: So, you presumably had students, members of the community, and residents of the province who would have access to the Internet and, therefore, access to information that was available on web pages elsewhere in the country.

MS. GROEN: You are asking if they could go through our host computer to get to the Internet? There was no control of that. They were absolutely free to do that.

The incident, though, took place in 1993; Netscape and Mosaic were quite as ubiquitous as they were two or three years later, but they worked in the other direction. What they couldn't do was receive from us, and that was the essence of the difference.