The fight to get Fox News taken off of Canadian cable explained

A Canadian LGBTQ2S+ advocacy group is trying to get Fox News taken off of Canadian cable channels—will they be successful?

Egale Canada issued an open letter on April 4 calling on the Canadian Radio-television and Telecommunications Commission (CRTC) to hold a public consultation regarding the broadcasting of Fox News in Canada.

The letter came days after the March 28 episode of Tucker Carlson Tonight on which Carlson recounted the previous day’s mass shooting at Covenant School in Nashville, Tennessee, in which six people were killed. 

Within hours of the shooting, the Nashville police chief said officials “feel that [the shooter] identifies as trans” and suggested a connection between their gender identity and a motive for the shooting. But months later, the shooter’s identity has not been confirmed and police say that no clear motive has emerged.

In Carlson’s segment, he alleged that the Nashville shooting is part of a larger phenomenon of “trans terrorism” targeting Christians, and added that “there will be more violence coming.” Carlson also alleged that trans people receive preferential treatment in employment.

At one point, Carlson mentioned another open letter issued by Egale earlier that day regarding a rise in anti-LGBTQ2S+ hate in Canada, and Egale’s logo was displayed on screen. Canadian trans advocate Fae Johnstone was also mentioned in the segment.

In Egale’s open letter to the CRTC, executive director Helen Kennedy wrote, “To position trans people in existential opposition to Christianity is an incitement of violence against trans people that is plain to any viewer.”

The letter calls for a “serious Canadian conversation about the broadcasting of Fox News in Canada,” urging the CRTC to begin a formal public consultation on the removal of Fox News from a list of programming authorized for broadcast in Canada.

Before Carlson was fired from Fox at the end of April, Tucker Carlson Tonight was the highest-rated cable news program for viewers aged 25 to 54 in the United States, with more than three million nightly viewers. Fox News has been the most-watched U.S. cable network for the past 20 years.

Challenges and precedents

Executive director for the Forum for Research and Policy in Communications, a non-partisan organization focused on Canadian broadcasting and telecommunications, Monica Auer told Xtra that this CRTC case has raised interest “because it’s not going to be easy.”

Fox News is a foreign-owned corporation. The CRTC cannot call the head of Fox News to a hearing or address Fox directly the way it can when a Canadian-owned entity has their licence up for renewal. The question in front of the CRTC is whether Fox should still be included on a list of programming that is authorized to be broadcast in Canada. 

The CRTC dealt with a similar issue in March 2022 when the decision was made to remove RT (originally launched as Russia Today) and RT France from the list of authorized programming.

In their decision, the CRTC wrote that the content of RT “constitutes abusive comment since it tends to or is likely to expose the Ukrainian people to hatred or contempt on the basis of their race, national or ethnic origin and that its programming is antithetical to the achievement of the policy objectives of the [Broadcasting] Act.”

In Egale’s open letter, Kennedy wrote that the CRTC can levy fines against Canadian broadcasters for broadcasting abusive or hateful content, a new power given to the CRTC by way of April 2023 updates to the Broadcasting Act. 

Auer notes that in order for this to happen, the CRTC would have to decide to issue a fine for something that, at the time of the Carlson broadcast, was not a fineable offence.

At the heart of this case, says Auer and independent communications researcher Ben Klass, is the issue of freedom of expression and hate speech. 

Klass says he’s done research into past CRTC cases in which they made it very clear that they give a “wide interpretation” of the second section of the Charter, which concerns “fundamental freedoms” such as the freedom of expression. 

Auer explains that there are two sides to the concept of freedom of expression: the freedom to express yourself without persecution, and the freedom for others to hear your speech. At the same time, there’s what Auer calls a “standard assumption” that freedom of expression in broadcasting is governed by laws that prohibit hate speech against identifiable groups.

“It’s the uncomfortable balance between the right to hear what other people are saying and the right as a state to ensure that Canadians aren’t exposed to speech that is so offensive as to breach our laws,” says Auer.

Freedom of expression and the broadcasting of hate speech was relevant to a case that the CRTC decided on in 2004, when the Commission decided to not renew a licence for CHOI-FM. The French-language radio station had broadcast content the CRTC deemed “abusive, degrading, disrespectful and contemptuous of persons with mental disabilities.” 

CHOI-FM had received almost 100 complaints against its programming and multiple warnings from the CRTC by the time the Commission decided to not renew their licence. Since CHOI-FM was a Canadian-owned broadcaster, the CRTC was able to put an end to their programming by not renewing their licence.

The station’s legal team eventually attempted to take their case all the way to the Supreme Court of Canada, but in June 2007, the Supreme Court refused to hear the case. CHOI-FM was bought by RNC Media and was able to continue broadcasting under a new licence despite the court decision.

While the RT and CHOI-FM cases can provide insight into how the CRTC will decide to proceed, Auer stresses that the CRTC does not run on precedent.

“The fact that they made a decision one way does not automatically mean that they must therefore follow that precedent going forward,” says Auer.

Fox and Egale make their cases

On May 3, the CRTC opened a public consultation in response to Egale’s letter. Comments from over 7,000 individuals and organizations were received. Fox News filed a response to the complaint, after which Egale filed a reply.

In their reply, general counsel for Fox News, Bernard Gugar, argued that Egale’s complaint is “moot” because Tucker Carlson Tonight is no longer aired on Fox News. 

Gugar also argued that unauthorizing Fox News would be “disproportionate and unprecedented” and inconsistent with the Charter. Gugar differentiates the case of CHOI-FM from the complaint against Fox News by pointing out the large number of complaints against CHOI-FM over a number of years. In contrast, according to Gugar, Fox News has only received this one complaint to the CRTC. 

“In the instant case, the content complained of came from a brief portion of a broader segment of a singular episode of Tucker Carlson Tonight, in which Mr. Carlson was engaged in fostering debate in relation to public responses, such as that of Egale Canada, that appeared to link the Covenant School shooting to allegedly widespread and growing anti-trans sentiment,” wrote Gugar in Fox News’ response. 

In their response, Egale disputed the claim that their case stems entirely from one episode of Tucker Carlson Tonight. They cite public comments from groups such as Black Coalition for AIDS Prevention, Rainbow Refugee and JusticeTrans that document content broadcast by Fox News that they allege targets and encourages hate toward trans people, Black people, refugees and refugee-claimants. 

Eagle’s legal counsel wrote that Fox News “regularly broadcasts false and misleading content that exposes many equity-deserving groups in Canada to hatred and contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.”

Next steps

Now, the commissioners will have meetings to review and discuss Egale’s open letter, as well Fox News’ and Egale’s responses, and all of the public comments made during the public consultation period. CRTC staff will also put together presentations exploring the issues raised in these documents. 

Klass likens the CRTC to a court that looks at broadcasting and telecommunications laws.

“In this particular case, the CRTC is being called on to do this, and they’re posting [Egale’s] complaint so that there can be a public debate about it,” said Klass. “[The CRTC] hasn’t made up its mind yet.” 

The CTRC is made up of between six and nine commissioners who work on five-year terms. Klass says these commissioners come from a “wide variety of backgrounds,” but generally they have worked in broadcasting and journalism.

“They have standards as to how long they usually would like to take with those types of things, but it’s not like a hard-and-fast rule,” says Klass. “I’d say within the next six months you could expect it to be wrapped up.”