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freedom of expression, private advertising, Vancouver Bus, section 2(b), Baier, Dunmore


The Court’s recent decision in Vancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights/Baier analysis that essentially means that policies that restrict expressive rights based on groups rather than content will be very unlikely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to only apply the positive rights Baier/Dunmore criteria where the claim is for the government’s ear or the government’s purse. Second, the Court’s section 1 analysis leaves sparse and problematic guidance for addressing the now opened can of worms that is sure to arise from the government sale of private advertising in a legal context that draws the censorship line above controversial content but below offensive content.