Banning a gay campaign advert from being televised in Jamaica breaches the constitution, judges have been told.
Gay activist Maurice Tomlinson is taking action against three Jamaican TV stations who refused to air his ‘Love and Respect’ advert – even though he offered to pay primetime rates to have it screened.
The 30-second video shows Tomlinson talking to his aunt about not being accepted in the island nation because of his sexuality. She replies she doesn’t like him being gay but loves and respects him all the same.
His lead council, Lord Anthony Gifford, told judges in the Supreme Court of Jamaica the video was dignified, restrained and only an intolerant person would object to it.
But independent stations TVJ and CVM and the Public Broadcasting Corporation of Jamaica – PBCJ have all declined to screen it.
Tomlinson argues the TV stations can’t refuse to screen the ad for ‘discriminatory, arbitrary or unreasonable’ as it violates his right to ‘disseminate opinions’ and ‘freedom of expression’ under Jamaica’s 2011 Charter of Rights and Fundamental Freedoms.
Under questioning from the bench, Gifford made the case that TV stations could refuse ads but had to have reasonable grounds to do so – not be motivated by prejudice.
Justice Sykes asked him: ‘It makes no difference if it is a religious or non-religious broadcaster? Such a broadcaster would be bound to broadcast a message contrary to his principles, that broadcaster can’t object?’
Gifford replied: ‘[He can object] only with good and sufficient reason. The balancing exercise involves balancing of rights, both sides have rights.
Justice Sykes asked: ‘Are you saying that private broadcasters have to provide reasons [for their decision not to enter into a contract with someone to place an ad]?
Gifford responded: ‘This is a constitutional right. If you are going to cut it off, you have to explain why.’
Tomlinson argues the stations wield significant power, and the case raises concerns about them excluding certain areas of public debate.
Gifford pointed out that, while gay sex is illegal, being a gay person is not. And as the advert was only a conversation between Tomlinson and his aunt, it could not be seen as promoting a criminal act.
Tomlinson told GSN he was cold-shouldered by lawyers at the court case. He claims one even refused to pass a pen from Tomlinson to his own lawyer.
He said: ‘She [one of his lawyers] therefore went to him and inquired what the incident with the pen was about. She reported that he said he does not associate with [gay] men.’
The ad was produced by AIDS-Free World who said in a statement released to GSN: ‘A lot is riding on this trial. Among other things, it is the first constitutional challenge to Jamaica’s systemic homophobia.
‘The case will also address the extent of Jamaicans’ right to freedom of expression as well as the limits to editorial freedom granted to broadcasters on the island.’
Meanwhile Tomlinson and his supporters have been protesting for their right to visibility.
The first protest saw them in Emancipation Park, the heart of the Jamaican capital of Kingston’s business district and near many government offices. They chose the spot to be seen by as many commuters on their way to work as possible.
Supporters also did a ‘Stand’ for ‘Visibility is Liberty’ outside the Jamaican consulate in New York today (29 May). And a final one will take place on Friday (31 May), the last day of the trial.
But others have also been expressing their view.
One wrote to popular Jamaican newspaper The Gleaner to say: ‘Let’s say that I am a rich white conservative landlord with a huge apartment complex and don’t want too many black or Rastafarian or gay tenants.
‘Why should I be forced to admit them? Why should I be vilified as a bigot because I urged them to go elsewhere?’
Tomlinson says this illustrates why promoting tolerance, including with his ad, is vital.
You can watch the advert here: