Paul's Internet Landfill/ 2022/ Speech Vs Third Party Advertising Laws

Speech and Third Party Advertising Laws

This municipal campaign election has gotten ugly. The public school board trustee elections (WRDSB) are particularly contentious. There is a coordinated campaign by social conservatives to elect candidates in line with their views. Websites including Vote Against Woke and Know Your WRDSB School Trustees have sprung up; the first explicitly endorses candidates they perceive to be socially-conservative, and the second pretends to classify candidates, but it is not difficult to see its slant from the "In the News" section.

The pretext for this battle are some controversies over a delegation being cut off, and trustee Mike Ramsay being suspended. There are accusations being imported straight from the Republican Party in the states: that schools are teaching Critical Race Theory (CRT), that white children are being made to feel guilty for being white, that children are being sexualized and "groomed" into radical gender ideologies, that school libraries contain pornographic materials. There are even accusations that schools are providing litter boxes for students who identify as cats and dogs.

On the other sides, accusations of homophobia and transphobia run rampant, and any conversations of age-appropriate material are dismissed as homophobic censorship. I found a reasonably good explanation of the context on Reddit.

To read the Twitter comments, the culture war is in full swing (which makes the much more moderate tone of this recorded debate all the more interesting, since people were quite civil there. That might also explain why nearly nobody has bothered watching that debate.)

In this environment, there are a whole lot of attempts to suppress speech and opinions about the election. People are being hounded into taking down their opinion pieces. You cannot read a tweet without without the keyboard warriors showing up.

At the risk of "there are good people on both sides"ing this issue, I will note that the optics are actually really bad on both sides. The socially-conservative candidates are associating with some sketchy sources (Sue Ann Levy being among the more respectable of them) and the progressives are mostly white progressives telling a moderately multicultural slate of social conservatives that they are bigoted. (I should also note that several of the candidates being endorsed by the social conservatives would probably not identify themselves as being socially conservative themselves.) This election is ugly.

Third Party Advertisers

Enter the Municipal Elections Act, and in particular the rules around third party advertisers. This Act specifies that organizations and individuals that are not candidates must register with their municipalities if they wish to advertise in the election.

The legislation defines a third party advertisement as:

“third party advertisement” means an advertisement in any broadcast, print, electronic or other medium that has the purpose of promoting, supporting or opposing,

(a) a candidate

(and also referendum questions, but that is not of concern here.) However, the legislation carves out some exceptions. The most relevant is:

(2) An advertisement is deemed not to be a third party advertisement for the purposes of this Act if the person or entity that causes the advertisement to appear in any broadcast, print, electronic or other medium incurs no expenses in relation to the advertisement. 2016, c. 15, s. 1 (7).

The 2022 Third Party Advertisers' Guide attempts to elaborate:

A third party advertisement is an advertisement in any broadcast, print, electronic or other medium that promotes, supports or opposes a candidate, or a “yes” or “no” answer to a question on the ballot. Advertisement includes traditional ads as well as materials such as brochures or signs.

(emphasis mine) and

Activities that do not involve spending money, such as discussions or expressing an opinion about a candidate (or an answer to a question on the ballot) are not considered to be third party advertising. Examples include:

Maybe these guidelines seem clear to you. Unfortunately the boundaries are fuzzy, and the implications of these ambiguities are Real Bad.

Attempts to Invoke Third Party Advertising Breaches

There have been multiple attempts to go after people in this election based on the third party advertising rules. Here are three cases:

WRV Cease and Desist

I am involved with (WRV), and based upon a Twitter thread we linked to, we received a threatening cease and desist letter accusing us of defamation (which is nonsense, since under Canadian case law linking to defamatory material is not itself defamatory), and threatening to report us both to the media (which would have been fine!), take legal action against us (which would not have held up in court given enough time and money), and have us investigated with the municipal clerk for not registering as a third party advertiser. The intention of this letter was clearly intimidation. Because we did not want to get caught up in their SLAPP lawsuit (and because as an unincorporated entity we would have been personally liable) we partially caved. We did not give into all their demands, but we took down the piece they disliked, and they have since left us alone. (Maybe they will go after me for writing this, which would be unfair.) To this day I am FURIOUS at this group and their intimidation tactic.

Know Your WRDSB Trustees Complaint

Another example of this is the attempts of so-called "progressives" to shut down the socially conservative websites. A prominent example of this is this Twitter thread in which Boos argues that since the site "incurs costs (domain name registration, hosting, development, etc.)" it should be considered a paid advertisement and thus subject to the third party advertiser rules. City News covered this story.

Cambridge Leaflets

A third example is documented in this tweet by Jayne Herring where somebody in Cambridge was dropping off leaflets linking to a Youtube video and encouraging people to vote for a certain set of socially conservative candidates. (Meanwhile, Mike Ramsay supports these leaflets.) Herring says these will be "reported to the clerk", presumably as a complaint under the Third Party Advertisers rules. The Cambridge Times covered this story.

Are These Third Party Advertisements?

Note that in each of these cases the third party advertiser rules are being used as a threat, and that in each of these cases the intent is to suppress speech that the accusant doesn't like. In the Mike Boos thread someone points out, which Mike agrees probably violates the rules but is probably not reporting to the Ministry of Municipal Housing and Affairs (or the Municipal Clerk).

It is in that sense that I strongly disagree that either WRV or the "Know Your WRDSB Trustees" site should be considered in violation of the Third Party Advertiser act. Both of these websites did indeed have to pay some costs to exist (at least domain registration), but I strongly disagree that setting up a website that expresses a political viewpoint is an advertisement.

The accusation against WRV is total nonsense because the whole purpose of the site is to provide information in a nonpartisan way. It is true that we do some content curation, but it is pretty light and also nonpartisan. Although not directly applicable, there is text relating to municipal websites that suggests that publicity does not constitute contributions to candidate campaigns:

Exception re making information public

(9) For greater certainty, if a municipality or local board makes information available to the public on a website or in another electronic format, the provision of the information does not constitute a contribution to a candidate. 2016, c. 15, s. 51.


(10) Without limiting the generality of subsection (9), the information referred to in that subsection includes the following:

  1. The phone number and email address provided by the candidate in the nomination filed under section 33.

  2. A hyperlink to the candidate’s website. 2016, c. 15, s. 51.

How about the "Know Your WRDSB Trustees" site? In some sense they are modelling themselves as a nonpartisan information site, but let's pretend that they weren't. I argue that even though they spent money on site development and website hosting and domain name registration, the existence of this site is not an advertisement because it is not being promoted to people. I think of an advertisement as a mechanism by which an entity tries to grab a victim's attention, promoting a message that the victim may not have been aware of before. A book I write is not automatically an advertisement; if I tell other people this book exists and/or encourage people to read the book, then that is a form of advertisement. The many tweets encouraging people to visit the "Know Your WRDSB Trustees" site are advertisements, but because they are social media posts they are protected under the legislation.

This brings me to a second, more pernicious aspect of this third party advertiser legislation. It turns out that the "Know Your WRDSB Trustees" people also have a presence on Facebook in which they make explicit endorsements for particular candidates. The legislation says that this is okay, but why? If you post content on some Silicon Valley social media platform you are protected, but if you set up your own website you are not? That does not sit right with me at all.

I do not feel the legislation is clear here. I am not confident I know what constitutes an "advertisement". The legislation says that speech is okay if it "incurs no expenses in relation to the advertisement". Does that cost include hosting fees? Domain registration? What if the domain is used mostly for other purposes, but contains an endorsement list? Is that protected speech in a way a custom endorsement site is not? The Waterloo Region Labour Council published an endorsement list. Are they in violation of the third party advertiser rules? Is a newspaper in violation of those news if it publishes an editorial? These are the kind of ambiguities that attract lawyers and legal cases, and in the meantime they are leverage to suppress political opinion.

What about the third case, of anonymous leaflets being dropped off at Cambridge homes? This seems much more clear-cut to me, but even here there may be loopholes. This material is clearly endorsing candidates, and it is clearly serving as an advertisement -- it is a "brochure". The defense here would be if the mysterious people producing the advertisement claimed it incurred no costs to produce. I am not sure how that is possible (paper and ink cost money!) but who knows?

There is a claim that the Youtube video linked in the brochure must also qualify as a third party advertisement, because it is also a form of political advocacy. I disagree with this. The leaflets are advertising the Youtube video, but the video itself is not advertisement. But then again I am neither a lawyer nor a lawmaker.


Another claim is that both the "Know Your WRDSB Trustee" site and the leaflets are produced anonymously. Neither has contact information. I think this a fair point for the leaflets. I think it is sketchy that the "Know Your WRDSB Trustees" and "Vote Against Woke" websites are anonymous. If they count as advertisements then they would need identifying information. But if they are statements of speech that should be protected then I am not sure that identification should be mandatory.

I am torn about this, though, because it means big powerful interests like the Koch brothers could fund a bunch of anonymous websites advocating abhorrent positions in the election, and we could not hold those groups accountable in any way. On the other hand, anonymous whistleblowers are real, and the anonymity of those whistleblowers ought to be protected.

Free Speech Absolutism

As an overprivileged pale brown cisgendered male, it should come as no surprise that I tend towards free speech absolutism over suppressing speech we don't like. I am no Christopher Hitchens, but one reason I participate in is to get the word out, and in my view that means getting as much relevant information about candidates and the election published as is feasible. There are lots of opinions expressed in this election that I disagree with, but I feel it is worth getting that information into a place where others can see it, so that others can make more informed decisions about the election. That is why the intimidation of WRV made me so angry -- in the WRDSB school board tire fire, we have published endorsement lists and news articles from both the progressives and the social conservatives. The failure mode here is that we publish too much information and people get overwhelmed, but that feels like a lesser evil than not publishing enough information.

This is not to say that we do a perfect job. Bob Jonkman chooses to publish as much social media information about candidates as he can find to his Poliblog listing, and honestly looking at somebody's non-campaign Twitter can reveal a lot about their values. Maybe WRV should also publish such information, but we decided not to.

Speech can create real harm. But in the context of this election I feel publishing more speech is more helpful than publishing less. In particular, I find the "Know Your WRDSB Trustees" site really helpful both for progressive and anti-woke types -- it clearly attempts to distinguish between the two groups.

There are all kinds of other endorsement lists that are out there, and I think most have something to recommend them. The election is richer for having these different (and sometimes competing) views.

Should People Complain?

If people complain about sites violating the third party advertiser rules, they should be even-handed about it. I disagree with these accusations being used solely against one's political enemies.

Like many others, I was horrified by the Citizens United ruling in the United States. We can see the damage that unlimited speech by corporations and the uber-rich has done to the American landscape. But I also feel that the Working Families Coalition should not have been stifled by the Ford government. I do not have a clear sense of how much third party advertisement should be permitted, and what the limits on this should be.

As usual, I feel that political parties are the worst offenders of everything, and for some reason political parties are allowed enormous amounts of spending in provincial and federal campaigns. As far as I know political parties are prohibited from participating in municipal politics in Ontario (they are prohibited from registering as advertisers, anyways) and I think that is a good thing.