Pushing The Expression Envelope: Semiotics

In yesterday's blog, I discussed the expressive content of sound, noise, and music. Yes, even ring-tones have expressive content. To find that something has expressive content is important when it comes to freedom of expression rights under s.2(b) of the Charter. If a sound or gesture does not have expressive content, then it will not be protected. Even if it does have expressive content, the court will be more concerned with an infringement if the expression goes toward fulfilling a Charter value such as self-fulfillment or democratic entitlement. Of course, the government can still restrict that right if justified under s.1 of the Charter.

The Supreme Court of Canada suggests that expressive content, not only depends upon the purpose of the expression, but is also dependent on the place of that communication. Therefore, expressive content must also depend upon the source of that communication: human manipulation as opposed to a pure environmental source. 

On that basis, let's push the expression envelope, so to speak, and think about the expressive content of symbols. Semiotics is defined generally by writer and one-time Professor of Semiotics, Umberto Eco, as the "study of signs." Signs can be words, sounds, images, gestures, objects, body language or really anything which stands for something else. According to Roland Barthes, the linguistic philosopher who created a postmodern view of semiotics, all of these signs in the modern world are really a complex association of "language" or a "system of signification." Thus, the peace symbol emblazoned on an American flag during the Vietnam War is expression as well as the dancing men in the Sherlock Holmes mystery.

But how about numbers? Numbers are symbols and form a language. Numbers can express weight, time, and amount. Numbers have expressive content and meaning. In a world of technology, the expressive content of numbers is important and perhaps of crucial significance in today's information highway. presently, the legal community has focused on the intellectual property aspects of information and have treated numbers as property. However, as expressive symbols, information or data may be viewed as more than receptacles but as having intrinsic expressive value under s.2(b) of the Charter.

Who knows, perhaps in the postmodern world of the future, the Jetsons will be expressing themselves freely in a numeric world protected by the Charter.

Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.