Who decides what words are offensive?

Canadian man Lorne Grabher was proud of his personalised number plate bearing with his last name in bold capital letters: “GRABHER”. He bought the plate as a gift for his late father in 1991 and kept the family tradition alive by placing the plate on his own vehicle.

Unfortunately for Mr Grabher, a Nova Scotian native, circumstances beyond his control changed the meaning of his plate. On December 9, 2016, Grabher received a letter from the Office of the Registrar of Motor Vehicles stating that, following a complaint from the public, his personalised number plate was cancelled.

The meaning of Grabher’s number plate had changed after the release of the infamous Access Hollywood tape, in which then presidential candidate Donald Trump was covertly recorded using the following words to describe model Arianne Zucker: “I better use some Tic Tacs just in case I start kissing her. You know I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything.”

Suddenly, in the context of 2016, Mr Grabher’s German last name sounded like an endorsement of sexual assault.

In their letter cancelling the number plate, the office said “GRABHER” could be misinterpreted as a “socially unacceptable slogan”.

Frustrated, Mr Grabher applied to the Nova Scotia Supreme Court claiming the number plate’s cancellation unjustifiably infringed on his freedom of expression and equality rights under the Canadian Charter of Rights and Freedoms.

The court will be asked to decide three key legal issues.

First, the court will need to decide whether the number plate “expresses or implies a word, phrase or idea that is or may be considered offensive or not in good taste”.

Second, the court is to decide whether it causes enough harm to justify infringing Mr Grabher’s right to freedom of expression.

Third, there is a question of whether the regulation used to cancel Mr Grabher’s number plate is constitutionally valid.

To support cancelling the plate, the office will call Professor Carrie Rentschler, an associate professor of feminist media studies at McGill University and an expert on how language supports gendered violence.

Professor Rentschler’s expert report argues that the expression “GRABHER” would very commonly be read as “grab her” — a speech act which supports, condones and encourages violence against women. Moreover, her report argues, girls and women could reasonably be assumed to find the phrase potentially threatening and that “the speech act ‘grab her’ is located on a continuum of violence against women” and “verbal expressions … that are supportive of violence against women … contribute to a climate of fear in which many girls and women live”.

Mr Grabher’s lawyers will call their own expert witness, forensic psychologist and science journalist Dr Debrah Soh, who specialises in researching and writing on the topic of male sexuality and sexual offending.

Dr Soh, in her rebuttal report, argues that even if Mr Grabher’s number plate was misinterpreted as a statement condoning sexual assault, this would not lead to a higher incidence of sexual violence in society.

There exists no empirical evidence or research to suggest that exposure to cultural slogans normalises sexual violence against women or leads an individual who would not otherwise behave in this way, to commit a sexual offence,” Dr Soh said.

Instead, Dr Soh argues, sexual violence is associated with “deviant sexual interests and having an anti-social personality”, which do not apply to the vast majority of the Canadian population. As such, Dr Soh argues, there is no evidence that allowing the number plate would lead to increased societal harm.

The case, which has received widespread media attention in Canada, reflects wider global discussions occurring in the wake of the #MeToo movement about the role of the media in normalising gendered violence.

Indeed, one of the key points of contention between Professor Rentschler and Dr Soh in their expert reports is whether Canada could be seen as having a problem of “rape culture” — that is, a society that normalises sexual violence via societal attitudes.

“The identification of the problem of rape culture in Canada has been especially visible in Nova Scotia around cases of gender violence and cultural rituals that express support for sexual violence at universities,” Professor Rentschler said.

“The speech act ‘Grabher’ can be located on the continuum of sexual violence, as a form of communication like catcalling, verbal harassment and verbal threats of gender violence.”

However, Dr Soh argues there is no evidence that Canada has a rape culture or “a culture supportive of violence”.

“According to the most recent data provided by Statistics Canada, rates of the most severe form of sexual offending in Nova Scotia have decreased between 2016 and 2017, mirroring a similar trend from the year before,” Dr Soh said.

“The plate does not encourage a culture supporting sexual violence against women, and if the registrar were to reinstate it, allowing it on the road will not lead to women in society being less safe.”

Substantive hearings in the case will begin in Hallifax, Canada, in April.