Free speech and the visage culturel: Canadian and American perspectives on pop culture discrimination.

• Author: Slotin, Ian
• Position: Cultural protectionism

Canada as a separate but dominated country has done about as well under the U.S. as women, worldwide, have done under men; about the only position they've ever adopted toward us, country to country, has been the missionary position, and we were not on top. I guess that's why the national wisdom vis-a-vis Them has so often taken the form of lying still, keeping your mouth shut, and pretending you like it.... Our national animal is the beaver, ... noted for its industry and its co-operative spirit. In medieval bestiaries it is also noted for its habit, when frightened, of biting off its own testicles and offering them to its pursuer. I hope we are not succumbing to some form of that impulse.

--Canadian writer Margaret Atwood on capitulating to the inundation of American popular culture (1)

[T]elevision is just another appliance. It' s a toaster with pictures.

--Former FCC Chair Mark Fowler (2)

There is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media.

--U.S. Congress, Cable Television Consumer Protection and Competition Act of 1992 (3)

1. INTRODUCTION

   "Culture," it is said, "is one of the two or three most complicated words in the English language." (4) The recurring confrontations between Canada and the United States over works of popular culture are a vivid illustration of culture's complexity. (5) To Canadians, pop culture works are a space for Canadians to express theft views, experiences, and aspirations. Canadians view that cultural space as integral to nourishing and preserving a national identity that consciously defines itself by its differences from the United States. Margaret Atwood's statement, quoted above, expresses an extreme version of the Canadian view that the deluge of American cultural works in Canada is a direct and serious threat to Canadian cultural industries and, by extension, to Canadian identity and sovereignty. (6) For Americans, whose perspective is shaped by a history of liberal markets and an ingrained suspicion of governmental measures that limit speech, the asserted connection between protecting popular culture and Canadian sovereignty is hard to swallow. Mark Fowler's statement likening television to "a toaster with pictures" illustrates the most extreme American position on works of popular culture--that the market, not the government, should dictate how and whether these products are disseminated. (7) While Americans often treat the notion of a distinct Canadian national identity with less respect than it deserves, there is a reciprocal failure by many Canadians to understand the important roles that free speech and free markets have in the lives of U.S. citizens.

   Over the past century, Canadian policies attempting to mitigate the alleged harms of an inundation of American pop culture products have assumed two forms: those that aim to promote indigenous Canadian mass culture through subsidies, and those that aim to protect existing Canadian cultural industries by using tariff barriers and Canadian content rules. The protective policies have drawn the ire of the United States for two related reasons. First, the American government regards such measures as primarily economic--not cultural--protectionism that violates Canada's international trade obligations. Second, because Canada's protective policies have the purpose and effect of restricting speech on the basis of content, Americans view the Canadian government's intervention in that area as particularly invidious.

   This Note examines the competing Canadian and American perspectives on protective regulations of magazines and cable television, with an emphasis on the constitutional freedom of expression jurisprudence of each country. I observe that Canadian and American free expression principles coincide with each nation's political position on content-based (8) regulation of popular culture. I also observe, however, that despite their continual hostility toward Canadian protective regulations, American lawmakers themselves employ arguably content-based rules to protect local, distinct culture when those voices are threatened by outside influences. Praising the cultural and educational value of local broadcast television stations, Congress passed the Cable Television Consumer Protection and Competition Act of 1992, (9) requiting cable providers to carry local broadcast signals. Though the United States Supreme Court held that Congress had a content-neutral objective, I argue that Congress's actual intention was analogous to the Canadian drive to protect the idiosyncratic conversations of a small community from an onslaught of influences of a much larger one. Thus, while arguing abroad that popular culture works should be treated merely as ordinary commodities, the United States relies on a conceit of content-neutrality at home to privilege local culture.

   The divergence between America's international position on culture and its protective measures at home exposes the myth of the United States as a paragon of cultural free trade. These contrary positions ought to be reconciled. Rather than adopting the extreme position that pop culture goods are ordinary commodities, the United States Trade Representative (USTR) (10) should acknowledge the special value Americans themselves ascribe to pop culture works and be more willing to accommodate the efforts of other nations to preserve their own cultural industries.

   I present an overview of the Canadian content-based protective measures for magazines and television in Part II. Part III explores the Canadian and American national myths that underlie those nations' competing visions of the role and importance of popular culture. Canadian courts have never considered whether Canada's content-based pop culture discrimination infringes the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms. (11) Section IV.A concludes that were the issue to come before the Canadian Supreme Court, the Court would probably uphold Canada's protective measures as a reasonable means of preserving Canada's visage culturel.

   In the American constitutional vernacular, Canada's protective regulations seek to advance an interest in the "`dissemination of information from diverse and antagonistic sources.'" (12) Section IV.B determines, on the basis of current American constitutional doctrine, that the Canadian protective regulations would not be upheld were the issue decided by the U.S. Supreme Court.

   While Canadian-style protective regulations would not pass constitutional muster in the United States, the U.S. Supreme Court has upheld a congressional statute with a similar (though less explicit) purpose in Turner Broadcasting System, Inc. v. FCC. (13) In that case, cable providers challenged a statute requiring them to provide local broadcast stations to their subscribers, often in favorable channel positions. Those "must-carry" rules are analogous to Canada's protective cultural regulations in that both seek to protect works produced by a small community against a deluge of content from outside sources. Part V argues that the conception of popular culture as a valuable repository of local community perspectives most plausibly underlies Congress's motives in enacting the must-carry rules. Accordingly, the USTR should refine its international position on pop culture to match Congress's efforts to preserve a distinct visage culturel in America.

2. CANADIAN PROTECTIVE MEASURES FOR TELEVISION AND MAGAZINES

   No one denies the widespread presence of American pop culture in Canada. Despite its relatively small size, Canada remains the most important export market for U.S. pop culture. In 1989, sales of U.S. books to Canada represented 39.9% of all U.S. books sold abroad. (14) Even more remarkable, 78% of all U.S. magazines sold abroad are sold in Canada. (15) On the other hand, only 19% of the English-language magazines and 55% of the books Canadians read are of Canadian origin. (16) Canada is also the largest per capita consumer and the second-largest absolute consumer of U.S. movies. (17) Additionally, sales of U.S. television programs in Canada earn approximately US$125 million per year. (18) Contrarily, only 3-6% of the screen time in Canadian theaters (19) and 39% of the television programming in Canada (20) qualify as Canadian content.

   Though nearly every country is penetrated by American mass media to some degree, Canada's situation is unique for several reasons. First, seventy percent of the Canadian population shares a primary language with Americans, thus facilitating Canadian absorption of U.S. cultural exports. (21) Second, eighty percent of the Canadian population lives within sixty miles of the U.S. border, making American print publications easy to obtain. (22) That proximity also enables Canadians to receive American television broadcast stations and Canadian cable companies to carry American cable stations. (23)

   Canada's most protective cultural policies have always been its rules regarding U.S. periodicals. (24) In 1929, the combined sales in Canada of four major American magazines were more than double the sales of the four leading Canadian magazines. (25) Seeking to prop up the floundering Canadian periodicals industry, publishing entrepreneurs and a "nationalist intelligentsia" that found U.S. mass culture to be a menace to Canadian values lobbied Parliament to enact a tariff on foreign publications. (26) The Conservative government of the time responded by imposing Canada's first tariff on periodicals in 1931. (27) Subsequently, sales of the five leading Canadian magazines rose by about sixty percent during the next four years, and U.S. magazine circulation in Canada fell by approximately the same amount. (28)

   In 1965, Tariff Code 9958 was enacted. (29) It prohibited U.S. media companies from importing "special editions" of their periodicals to Canada. A "special edition"...