Bill C-10 - When funding becomes Censorship

There is a new censorship kafuffle in town. It’s Bill C-10, which will restrict tax credits to film and television productions deemed offensive and "contrary to public policy" by the Ministry of Heritage. The arts community is rightly up in arms, condemning the Bill as government censorship. But, the government, along with more than a few supporters, insists that this isn’t censorship. Artists are free to make art, they say, just not on the government’s tab.

So, just what is censorship, exactly?

(A shorter version of this article was first published on Xtra.ca) 

The Miriam Webster dictionary defines censoring as the act of examining material "in order to suppress or delete anything considered objectionable" It is often, but not always, done by governments.

Okay, so let’s focus on government censorship. When does a government act become the suppression or deletion of objectionable information?

Some kinds of censorship are pretty easy to identify. Like when you write something and end up in jail because of it. Laws that make certain kinds of speech a crime are obviously censorship. And we have had our fair share of those laws. Like obscenity laws used to censor works of literature, like Lady Chatterley’s Lover.

Then, there are the laws that stop short of putting people in jail, but stop books, magazines, and other expressive material from entering the country. We have an illustrious history of censorship at our borders, where customs officers have for decades decided what kind of material is just too racy for Canadians. And over the decades, there have been some pretty interesting books on that list: Lady Chatterley’s Lover of course, but also books by Norman Mailer, Balzac, de Maupassant, Henry Miller. The list goes on.

And needless to say, there was a lot of gay and lesbian stuff on that list. Like Radlyffe Hall’s The Well of Loneliness banned in 1949, lesbian pulp novels in the 1950s and 1960s, The Joy of Gay Sex into the 1980s, and gazillions (okay, maybe thousands) of titles en route to Little Sister’s book store in Vancouver.

The well documented excesses of Canada Customs demonstrate just what’s wrong with censorship. Low level bureaucrats – the very same folks who are also responsible for ensuring that drugs and illegal firearms are not allowed into the country and that legal goods are appropriately taxed – are also responsible for determining whether a particular publication is obscene. They look at a couple of passages in a book, see some sex that is icky to them, and boom, it’s censored.

Then, there were the film review boards. Another hot bed of Canadian censorship.

In 1932, Scarface deemed a gangster film was banned from most provinces for nearly five years. Scores of films were censored. But, fast forward to slightly more modern times, and there is no absence of censorship. In 1968, Ontario bans I am Curious Yellow. In 1978, it bans Pretty Baby. In 1980, it orders cuts to the Oscar winning The Tin Drum. The director refuses, and the film does not play in Ontario.

My personal favorite was always Not a Love Story. The documentary was a denunciation of the porn industry’s exploitation of women. It was banned in Ontario because it was, well, pornographic.

And lest you think it’s a thing of the quaint past, in 2001, it banned Fat Girl. (The power to ban films was mostly removed from the Ontario Film Review Board in 2005).

So, what about funding decisions? The government does not have to fund the arts. It doesn’t have to fund the production of television or films, nor books and magazines. But, once it chooses to do so, is it then free to decide what kinds of material it will fund?

Well, it’s important to consider why government programs fund the arts. It is generally to promote the Canadian industry. Sure, there is an artistic and cultural heritage dimension. But, there is also a business dimension: it is about supporting Canadian jobs and business.

Is it about funding material that is consistent with the government’s ‘public policy’ of the day? At a certain level, sure. Promoting Canadian culture and Canadian jobs are an important part of government public policy. But, what about policing the standards of decency?  Or more specifically, standards "contrary to public policy".

And let’s return to Bill C-10 itself. Its about the Income Tax Act. Its called An act to Amend the Income Tax Act. Not the Criminal Code. Not a promotion of the arts bill. Not a "lets clean up Canadian culture’ bill. It is hidden deep in the fine print of reforms to the Income Tax Act.

Tax credits in the Income Tax Act are intended to promote a vibrant television, film and video sector.   They are not supposed to be about promoting decency in Canadian culture.

To try to assess just how this new provision might be applied, we need to think about what might "contrary to public policy" might mean.

Well, the power to decide what is contrary to public policy for  films and television will rest  with the Minister of Heritage. This is already the case for  books, under the guidelines of the Heritage program that governs federal investment in book publishing.  According to the Book Publishing Industry Development Program,  the following materials are not eligible for funding:

1. Hate propanganda, obscene of child pornography, or any other illegal material as defined in the Criminal Code

(okay, fair enough - if its illegal, well, it shouldn't be funded, although there could be dust ups between a heritage department officials interpretation of obscenity and the courts)

2. pornography or other  material  having significant sexual content unless it can be demonstrated that there is an overriding educational or other similar purpose

(So, here, its not just material deemed obscene. It is anything with significant sexual content, and the question will be - what does that mean?   It could just mean adult porn - and frankly, that industry doesn't really need the money, they are doing pretty well on their own.  But, it  could also be a whole lot broader....)

3. material that contains excessive ro gratuitous violence

(a pretty subjective call in terms of when we go from a film with violence to a film with excessive violence.  Which one is Eastern Promises?  Its very violent.  But, is it excessive or gratuitous? Depends who you ask. )

4.  Material that is denigrating to an identifiable group.

(another subjective call, especially since it would be material that falls short of hate propaganda.  What about something like Borat?  Or a film exploring racial stereotypes? Or a film about terrorism that takes a hard line on 'Islamic extremists' that others think is denigrating to Islam? )

5. any other similarly offensive material.

(a category that speaks for itself in terms of its potential broadness).

There is no reason to believe that these will necessarily be the exact guidelines to be adopted, although a number of politicians supporting C-10 have referred to them in the debates.  But, assuming that something like these guidelines were adopted - well, they are both broad and vague, which means that they could be broadly and vaguely applied.

And this is where it is useful to remember the history of censorship in this country.  When you give officials the open ended power to censor, guess what they do? They censor. Broadly. And often badly. Look at the history of customs censorhip, and film censorship. And every other kind of censorship. Promoting decency becomes a way to censor stuff that is, well, just icky to the official.

And art is often, well, icky. It is subversive, unsettling, challenging. Good films often upset us. They very well might just be icky. I found Eastern Promises, David Cronenburg’s critically acclaimed, but very violent film to be, well, very violent. It was upsetting. It was icky. It could, accordingly, be censored.

Now, every one on down from the Heritage Minister is insisting that films like Eastern Promises and Juno would NEVER be censored. Well, that’s easy to say, now that those films are out in the public sphere and incredibly successful. But, its possible that they just might never see the light of day because an official decided that they were too icky.

Using tax credits to cherry pick films that promote public policy and films that are contrary to public policy, well, it fits most of the definitions of censorship. It is, effectively, suppressing material that is deemed objectionable. Because without federal funding, Canadian films and television shows just don’t get made.

The "its not censorship, its just about not using my tax dollars to fund that smut" argument really doesn’t hold up. (There are lots of things I’d rather not have my tax dollars funding, like the Alberta Tar Sands - tax credits galore). Bill C-10’s cherry picking approach to funding film and television shows needs to be called what it really is – government censoring what it just doesn’t like.   Censorship is a continuum.   Not funding films and television is definitely different than banning films.  But, the end result - and the process along the way - can be the same: lower level officials making decisions about what Canadians can and cannot see.  And, as history tell us,  the power to make these decisions is often used broadly, and badly. 

Comments

[Brian Dell]

How is "the process" the "same"?

It is entirely different to allow something and to encourage something. This is not a broad based tax measure. Only income from film or TV production qualifies. As such, the question is what is the policy reason for this incentivizing.

This is not the only statute where "contrary to public policy" would appear. If there isn't a slippery slope problem there why is there one here?