Tuesday, April 29, 2008

Canadian Islamic Congress to seek compromise

Most human rights complaints never make it to trial, you know. There is a possibility that this one will not. There are always compromises, deals worked out on the courthouse steps, etc. The CIC is about to announce an offer for settlement. We don't know what that is yet, but it will be interesting to read.

It looks like a great deal of damage has already been done to the public's perception of the hate speech complaint process, and to the human rights commissions and tribunals as a whole. So even if this offer is accepted, there is probably no way the system will escape some serious reform.

But anyway, there is not much of a chance that Rogers Publishing will buy what the CIC is selling. It should be pretty telling that, at least as far as I can tell, Rogers never filed a preliminary application to dismiss on this matter. That should tell us that they want this to go to hearing. They want to take full advantage of the process, in all its grinding slowness.

Speaking of the respondents, why not take out a subscription to Maclean's, if you haven't done so already? Lawsuits aside, the magazine has made some huge leaps and bounds in the last few years, and is a very rewarding read. Hey - it's only twenty bucks. Treat yourself.

Friday, April 25, 2008

Now reading

Colin Thubron's Among the Russians, a great book about the twilight years of the Soviet Union. The author talks a lot in the book about the strange, unintended effects of censorship. He repeats the concept several times that censorship is actually a kind of perverse honour for artists. In contrast to the West Thubron knew, with its vast armies of unread writers and uncelebrated artists, the Soviet regime had created in Russia a climate where every kind of expression became a hundred times more valuable than it would otherwise have been.

There is a lot in the book about samizdat, the Russian term for self-published materials. This was circulated underground, with tissue-thin pages made grimy by hundreds of eager hands. People would pay huge sums for a volume of Solzhenitsyn, or even of Turgenev. The message is clear; the government cannot kill an idea, no matter how repressive it is. That goes for bad ideas as much as it does for good ones.

Sunday, April 20, 2008

Joseph Brean in the Post

Another great piece from our intrepid human rights reporter. The part that really gets me is not where Barbara Hall says that human rights complaints "may have to spike," although that sure is enough to send a bit of a chill up the ol' vertebrae.

No, I'm just struck by the wording of Hall's directive to the media:

In a wide-ranging interview this week about the upcoming changes to her commission's mandate, she stood firmly by her position that media have a responsibility to put their writings through a "human rights filter" before publication, and said the commission is keen to call out those who do not, jurisdiction be damned.

That phrase - "human rights filter" - really sounds unpleasant. I suppose she's really only arguing for what some would call reasonable caution and restraint. But to me, it sounds like she's talking about something more far-ranging. Media companies in Canada probably never spent time worrying about any "filters" other than accuracy and interest - that is, until the Maclean's case blew up. Now, all of a sudden, media are supposed to be subject to this new "filter," the nature of which seems to shift from one day to the next? How is anyone to publish anything controversial?

Friday, April 18, 2008

Spit in their eye, Brigitte!

Or so says John Derbyshire in his latest RadioDerb podcast. I like that the Brigitte Bardot story is finally getting some media attention - on the fifth go round. Well, as George Jonas says, there are ripe news items and unripe ones. It seems like Mlle. Bardot's story just fell off the vine.

Not that I really have a position one way or the other on Muslim ritual slaughter practices. I'm not particularly interested in animal rights advocacy, I suppose. But Bardot is passionately interested. Should she not be allowed to speak her mind? Or is it just because she spoke up in an especially offensive way? I really don't know the answer.

Thursday, April 17, 2008

Wednesday, April 16, 2008

New Bill

Tabled by Carole Freeman of the Bloc Quebecois, a new bill could make it a criminal offence to vandalize any building occupied by an identifiable minority group. It's not surprising that the impetus for this move comes from a Quebec MP, as that is the province that seems to have the most serious problems with religious tolerance. Hate crimes in Quebec have been sharply on the rise in the last few years.

Tuesday, April 15, 2008

Babette s'en va-t-en guerre ... Part V!

More Brigitte Bardot news, if you can believe it. Ms. Bardot, a noted animal rights activist, is opposed to the practice of slaughtering sheep without first stunning them, something this Telegraph article links to the Muslim community. In a letter, she decried "this population that is destroying us, destroying our country by imposing its acts."

Well, as we know, in France that's enough to get the authorities' attention. After being charged and convicted of hatred more times than Jean-Marie Le Pen, Ms. Bardot obviously knows the drill. She will not be silenced, she says:

"I will never keep quiet" until animals are stunned before ritual slaughter, she added, saying she was "tired and weary".

But enough about the defendant. You must be wondering how the prosecutor is holding up under the strain. Well might you wonder:

"I too am tired and weary", said the prosecutor Anne de Fontette, pointing out that Miss Bardot had been convicted four times since 1997 on similar charges.

"She might as well write that Arabs should be thrown out of France", she said. "It is time to hand out heftier sentences".

One can't fault the prosecutor's logic here. Nominal fines are never going to be enough to silence people who have strong beliefs. Eventually, every censor realizes this. You either have to get serious and start locking people up for saying unpopular things, or you have to concede that government should not be in the business of policing political speech. You may not hear them speaking up these days (probably because of all the publicity from Ezra Levant and Maclean's), but there are many very intelligent people in Canada who would like to see our censorship regime cover a lot more ground than it does now. If you like the approach France is taking, you may agree.

Bill C-10

This is old news by now. Part of the new Income Tax Bill contains a provision that would allow the Heritage Minister to deny key tax credits to films that the government deems offensive or 'not in the public interest.' I was wondering what exactly these tax credits are that everyone is concerned about losing. There's a little something about them here; apparently, it's a refundable credit of sixteen percent of wages paid to Canadians or Canadian companies in making a movie. If the government doesn't like what your movie has to say, though, it will soon have the power to deny you this credit, and it would seem that for a lot of films, that is effectively a death sentence.

Now, the strangest part of the whole Bill C-10 is that people who could care less about s.13 of the Human Rights Act are suddenly crying 'censorship' when it comes to funding movies. I have had people argue to me that the bill is actually worse than s. 13, because at least a respondent before the Human Rights Tribunal has a chance to appeal all the way to the Supreme Court, while the filmmaker denied his credit gets no such review. Someone actually quoted Madam Justice McLachlin's (as she then was) argument from the Keegstra case, that any drawing a line between acceptable and unacceptable speech catches not only the speech that crosses the line, but anything that would be close - because no one will want to take a chance. I would have no problem with people making these points if they would apply them equally to instances of real censorship - the kind involving government commissions investigating and charging citizens for the offence of sharing ideas.

This is not to make apologies for Bill C-10. The best the Heritage Ministry can say about it is that they would not enforce it very strictly, and so we shouldn't worry that the next Crash will lose its tax credit. If Canada is going to be in the business of funding movies, that doesn't mean it should be sitting in the MPAA chair, combing through our scripts looking for salaciousness, wielding their red pens. All I mean to say is: Some perspective, please. Let's get the state out of its increasingly comfortable position between the writer's pen and the page.

Monday, April 14, 2008

A federal power over political speech?

I got to thinking about this after I got out my twenty-year-old edition of Professor Hogg's Constitutional Law of Canada, which I picked up for a couple dollars at a book sale. In the section on free speech rights, he asserts that, while there is a divided federal-provincial jurisdiction over expression, certain categories fall under sole federal jurisdiction. Hogg, who is probably the top constitutional law expert in the country, says that political speech - that which is necessary to the working of a liberal democracy - can be regulated, but that this can only be done by the federal government. Only Ottawa is competent to restrict speech that is purely political, because the right to expression is so fundamental that any derogation of it should be done through federal law (usually the Criminal Code), with appropriate procedural safeguards.

When I went to look in the newest edition at the library, I found that the section on speech was virtually unchanged from twenty years ago. Despite everything that had gone on with speech in the late 80s and beyond, the professor had left in all the old case law like the Reference re Alberta Statutes and the Padlock case (Switzman v. Elbling), but had not included Taylor or a provincial equivalent like the first Collins. This isn't to say that the new edition is falling down on the job at all; I mean, to someone like me, the free speech issue is huge, but in national terms it really doesn't amount to a lot of case law. There have only been about two dozen hearings in the federal Human Rights Commission dealing with s.13. As for the provincial cases in BC, Alberta, and Saskatchewan, I haven't counted them all, but surely they would be about the same in number, total, as the federal complaints. Professor Hogg has no shortage of subjects to deal with in his textbook, which is already about the size of a Toyota in its unabridged format.

The point is that according to Hogg, the provinces do have the power to regulate a great deal of expression, but they do not have jurisdiction over anything that could be called 'political.' Surely, there is nothing unconstitutional about the 'signs and notices' provisions that appear in pretty much every Human Rights code from here to Nova Scotia. Likewise, libel and slander actions get fought out in provincial court and some provinces have their own acts dealing with defamation. According to the older case law - meaning, older than the federal version of the Human Rights Act, only Ottawa is supposed to be able to regulate political speech. Note that this rule would apply to all kinds of political expression, whether you were talking about the mayoral election in your town or the situation over in China. It shouldn't matter what kind of politics you're talking, the rule is that only one government is allowed to regulate what you can and cannot say in that area. According to this rule, the federal Commission would be good and constitutional. The actions of the various federal commissions and tribunals, though - that might be another story.

For some tribunal law on this subject, one can look back at a case that was reviewed before on this site - Canadian Jewish Congress v. North Shore Publishing (or, as it's more commonly known, the first Collins complaint). In the reasons for this one (which are extremely long and very well reasoned, by the way), one of the intervenors brought up several jurisdictional arguments, one of which was the supposed federal power over speech. Tribunal Member Nitya Iyer (who, upon further research, turns out to have a Master's degree from Harvard, which would explain the degree of sophistication evident in the reasons) deals with the question in much more detail than I have time to do here. In short, she goes over the older cases, going as far back as the 1938 Alberta Statutes reference, and looking at everything up to Taylor and R. v. Keegstra. She goes over Professor Tarnopolsky's book on Human Rights, which argues for an exclusive federal jurisdiction for political expression, and briefly looks at a Saskatchewan case called Engineering Students Society which appears to support the notion. There is a lot of writing on fed-provincial jurisdiction questions, and it takes up an awful lot of ink.

The passage I most wanted to highlight is where Iyer discusses Chief Justice Dickson's reasons from Keegstra. She notes that the Chief Justice in that case did find that hate speech could be classified as 'political,' but then quotes his strong qualification:

"I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of activity is thus wholly inimical to the democratic aspirations of the free expression guarantee."

So, the Chief Justice concluded that while hate speech may be political in nature, it has a distinctly anti-democratic tendency to it. Iyer then takes this to mean that hate speech, as a class of expression, is less deserving of constitutional protection, and should not be reserved exclusively to the federal jurisdiction. Now, so far, I am not questioning the tribunal member's reasoning. There is, indeed, pretty ironclad law passed down by the Supreme Court here, saying in pretty clear words that this one type of political speech - that is, hate propaganda - should not benefit from the same broad constitutional protection as other types of communication. Iyer is correct to draw from this the idea that hateful speech can be legally suppressed by the state.

The problem is, nothing in what the Chief Justice said in Keegstra can by any means take away from the principle that political speech is purely a federal matter. Dickson C.J. most explicitly did say that hate speech "would generally be classified as political." True, he does go on to say that it is anti-democratic, and therefore not worthy to be saved by s.1 of the Charter with its mention of a "free and democratic society." But this does not mean that hate speech is no longer political. It simply means that it can be infringed upon. Nothing in the reasons suggests that Dickson C.J. meant to overturn the decades-old principle of Parliamentary jurisdiction in this area. Iyer, then, comes to a faulty conclusion. She essentially assumes that only political speech that is democratic should fall under the federal power. This is in direct opposition to the Padlock case, for example, where the Court found that the suppression of Communist propaganda was an essentially federal matter, and was ultra vires the province of Quebec. Communism, it need hardly be explained, is an explicitly anti-democratic ideology. What Dickson C.J. said about hate propaganda undermining democracy could just as easily have been applied to Marxism. The principle is, and should be, that only Parliament can suppress political ideas. It is irrelevant whether these ideas are essentially democratic (e.g. 'throw the bums out') or anti-democratic (e.g. 'no votes for women').

In addition to Collins, there is a whole body of rather confusing case law on this matter from Saskatchewan. It doesn't resolve things to my satisfaction, any more than the BC jurisprudence does. It would be interesting to look at how Alberta has dealt with this question. More questions for another day.

Sunday, April 13, 2008

Christians not cool with this

When I gave a seminar presentation about freedom of speech in a class a few weeks ago, I included one of the Muhammad cartoons as part of the reading material. I thought that since we were going to be talking about the Ezra Levant case, it was only natural that we should see the basis for the complaints. Unfortunately, the cartoon did not sit well with one student, who insisted that, while it may have been alright to publish such material before 9/11, it was not acceptable in the anti-Muslim climate that followed the attacks. When I said I didn't think the cartoons themselves could actually expose anyone to hatred or contempt, he replied that I could never understand, because I am not a Muslim.

Well, that's true. I could probably never understand just what he feels when he looks at a drawing of Muhammad wearing a bomb instead of a turban. The closest I could get to that experience, I suppose, would be looking at something like what they've been showing over in Austria lately. Apparently, an exhibition by Alfred Hrdlicka has caused some major controversy, with some art depicting the Last Supper as a gay orgy. The most offensive of it has now been removed.

When you read this, you automatically think of the Danish cartoons, right? There have been lots of angry calls and letters from Christian groups (many from all the way over in the United States), and even a few threats of violence. Interestingly, the exhibition is being held in a church-owned building across the street from a cathedral. The brass there thought the art was acceptable, but apparently many others feel differently. No deaths have resulted from this controversy, at least.

A situation like this is a good head-check for the anti-censorship crowd. Denouncing prior restraint when the issue is denigration of someone else's religion is one thing; but can you look at something dreadfully offensive to your own creed and be unmoved? Are you willing to stand up for the right to speak of someone who is denouncing what you identify with most strongly?

Another question to ask yourself: Would you want the religious fundamentalists who are currently threatening this artist to be able to bring legal complaints against him for the offence of exposing Christians to hatred and contempt?

UPDATE: I noticed this question to readers on the USA Today site: READERS: So ... is it art or is it blasphemy? Where's the line?

To answer that with another question: How are those two things mutually exclusive?

Saturday, April 12, 2008

Micheal Vonn on why the anti-censorship crowd is losing

Just click on that video to get to the YouTube site. I don't know why it's not appearing properly here.

An excellent talk - worth hearing all of it.

Friday, April 11, 2008

The big fish and the small

Sean Berry's post reminded me of something one of my professors said the other day about the Little Sisters Book and Art Emporium v. Canada case. The question there was about prior restraint - possibly 'obscene' books and magazines getting held up at the border by zealous customs officials. Little Sisters book store is in here in Vancouver, and is always getting into flaps with the border guards over the stuff they try to bring into the country.

My prof was saying that back then, the progressive, civil libertarian critique of censorship was that the big fish like Harper Collins were having their books waved through customs with no trouble at all, while comparable material from small publishers - the stuff destined for the Little Sisters shop - was being stopped. So, it was wrong to have a censorship regime that let the big companies off the hook, while catching all the independent, limited-audience publishers.

Now, though, the perception is very different. As Sean points out, it took having one of their own compadres taken to the tribunal before big media took notice of the hate speech process. When it came to state censorship of hate speech back in the 80s and 90s, people either paid no mind, or were happy to see the fringe wackos and the newsletter writers being called to account for their words.

But the tribunals, it seems, don't operate the way customs officials do. Probably, the human rights people feel they have a broader mandate, and a more important duty. The border guards gave the major companies a pass because they didn't want a lot of attention - negative publicity, calls for reform, etc. But the tribunals, well, either they are not afraid of bad press, or they didn't foresee how much bad press they would get from this Maclean's case. Either way, they sure have the media's attention now.

Don't you get between me and my MSM!

Sean Berry on how the anti-censorship argument should be framed.

And a little something from yours truly

Marni Soupcoff of the National Post was kind enough to publish my response to Maxwell Yalden's April 10 column on Full Comment. Thank you Marni!

More great coverage from the Post

Again by Joseph Brean, he of the mammoth cover story from a while ago. This article is about the Ontario Human Rights Commission's statement yesterday on the Maclean's case. It also has some good quotes from Tarek Fatah of the Canadian Muslim Congress. Read it here.

Wednesday, April 9, 2008

Case of the day - Warman v. Fromm [2007] Ont. Sup. Ct. J.

In honour of the conservative bloggers served today with Statements of Claim, I thought I would look at an earlier defamation case brought by the same plaintiff, Richard Warman. Note that this is not a hate speech case, but one brought in court under tort law. Still, it's pretty relevant to the big news on the blogosphere today. A link to the case is here.

A couple years ago, Warman sued the Canadian Association for Free Expression and Paul Fromm for certain postings about him that appeared on the website freedomsite.org and were distributed via e-mail to other sites. In the words of the Court, Warman alleged that these writings mischaracterized him "as an enemy of free speech, a member of the thought police, a high priest of censorship, and an employee who abused his position at the CHRC in order to limit freedom of expression and pursue his own ideological agenda." The Court used the proper legal test for determining whether the statements were defamatory, a test which was most recently stated in the Supreme Court case Botiuk v. Bardyn: would the material tend to lower the Plaintiff in the estimation of right thinking members of society, or expose that person to hatred, contempt, contempt or ridicule? Would a reasonable person think less of the subject of the writings after having read them?

This is the test the plaintiff has to meet. Once this burden is discharged, however, the case is not closed. The burden merely then shifts to the defendant, who must establish one or more of the several available accepted defences. A common one is the defence of truth: when a statement is found by the Court to lower the plaintiff in the eyes of reasonable people, it is assumed then that the statement is untrue. This is a rebuttable presumption, which the defendant can displace by proving the truth of his words, which can be done in any number of ways. Another defence is that of fair comment, which means that the impugned statements were made without malice, in good faith, on a matter of public interest. Where the plaintiff is a public figure, this defence is easier to establish.

The Court went through the postings one by one, applying the Botiuk test each time. All nine were then found to be defamatory. There is, of course, much room for disagreement here. While all the postings were about the plaintiff and all referred to him in negative language, they varied greatly in strength and vitriol. For example, the first post was probably the strongest; it included terms like "thought police," "enemy of free speech," accusations of fanatacism, etc. This kind of language was echoed at least four other postings. But there were others written with much different wording, such as the third posting which referred to Warman as the Canadian Human Rights Commission's "hatchetman." Another message called the plaintiff a "professional censor" carrying out an "ideological vendetta" against those with whom he disagrees. Taking all these messages to be defamatory, the judge then examined and dismissed the defendants' arguments on fair comment and truth.

The judge's analysis of the truth defence is particularly problematic. Responding to the defendant's contention that the statements were true, the Court said that there was much falsehood in some of them, including descriptions of Tomas Winnicki as an 'anti-Israel critic', and of Richard Kyburz as a 'tax critic.' Winnicki and Kyburz were, in fact, people whom the Canadian Human Rights Commission had previously found guilty of disseminating hate propaganda, and so the Court here finds that the descriptions of them as innocent critics are so misleading as to be outright false. This should not, however, preclude the defence of truth in every case, I think. It would be important to consider whether the words written about Warman himself had any truth to them - the ones about him being a censor, for example. On the other hand, it could be argued that the characterizations of Winnicki and Kyburz were integral to the allegations about thought policing, and so a falsehood about them was also a falsehood about the plaintiff.

A good argument in Warman's favour, I suppose, would be an analogy to others in the legal community who often take up controversial fights. A defence lawyer known for defending sex criminals, for example, would probably have a cause of action if some website posted comments referring to him as an 'enemy of public decency' or a 'friend of rapists'. In this light, the judge's offer of the Winnicki and Kyburz convictions as evidence that Warman was engaged in a righteous fight is understandable, if somewhat simplistic. I would hope that such protection would extend to those who defend terrorists in court, or Neo-Nazis. There is no reason to tar a lawyer just because he brings cases that are politically unpopular.

Having said that, though, it is usually accepted that mere insults are not, by themselves, actionable in most cases. According to Allen Linden and Bruce Feldthusen's Canadian Tort Law,
some insults would be enough to meet the test, but the examples they give are far beyond what was written about Warman on freedomsite. Some actionable insults they give include:

"[T]o accuse someone of being a homosexual, of wife-swapping, of molesting a minor, of having a venereal disease...To call someone a drunk, or "hideously ugly," or a traitor is defamatory. To impute an unpopular political belief, such as implying that a person is a Communist, or behaves like a Nazi secret service agent, may be defamatory.

"To speak disparagingly of a person's professional capacity can amount to defamation, such as calling a doctor a "quack" or a lawyer a "shyster" or a "thief."... Where a professional gambler was accused of cheating, the court awarded damages because the accusation was injurious to his professional reputation and would disrupt his source of income."

It would seem that the comments about Warman could be construed as being injurious to his reputation as a lawyer - calling him a member of the thought police, or a professional censor, might do this. But calling him a censor is not really the same thing as calling a doctor a quack, or a gambler a cheat, is it? I mean, the impugned comments did not say that Warman does what he does badly, the way calling a lawyer a "shyster" would imply. Rather, they assert that Warman's very occupation - bringing hate-speech complaints to the CHRC - is not a legitimate one. It would be similar to calling a pornographer a "purveyor of filth," or a cigarette manufacturer a "merchant of death." The distinction is subtle, but key. In the first instance (doctor = quack), the accuser implies that the person is incompetent, dishonest, etc. In the second instance (plaintiff before CHRC = thought police) the accuser implies that the person is involved in something undesirable, that the very business in which the person is mixed up is a bad one. Now, keeping this in mind and using the textbook's definition, the comments on Fromm's site were probably not defamatory. Of course, the textbook could be wrong, or I could be misreading it.

As for the new lawsuit against Ezra Levant, Small Dead Animals, Five Feet of Fury and the rest, the defence of truth will probably be central, even more so than it was in Warman v. Fromm. I understand that the main point of contention is some posting that Warman is alleged to have written in the course of his hate-speech investigations. York v. Okanagan Broadcasters stands for the proposition that where a criminal offence is alleged, the accuser need only establish the truth of the allegation on a balance of probabilities. This post, if one reads it carefully, probably could disclose a criminal offence under s. 319 of our Code. Or, it might not - it's hard to tell with these hate messages. The upshot of this is that the defendants would only have to prove on a balance of probabilities that the message was, in fact, written by the plaintiff. Whether this could be done is an open question.

Tuesday, April 8, 2008

Free speech case of the day - Whitney v. California (1927)

A woman named Charlotte Whitney was charged and convicted under California's Criminal Syndicalism Act for her work with the Communist Labour Party. The party's platform was what you would expect from a Marxist organization founded in 1919: they basically toed the Comintern line. It is interesting to note among Whitney's colleagues would become two of the most famous American Bolshevik figures - John Reed (of Ten Days that Shook the World fame) and Benjamin Gitlow (whose own free-speech Odyseey, which culminated in the Supreme Court decision of Gitlow v. New York, which will have to wait for another day). You can read the decision here.

The Act under which Whitney was charged contained a prohibition against engaging in "criminal syndicalism," which was defined in the Act as the aiding and abetting of crime, sabotage, acts of force, terrorism, with a view to bringing about a change in industrial ownership or poltical change. One can tell by reading the section of the Act that is was really designed with the red menace in mind, much the way Austria's hate speech laws are made to deal with Nazi expressions and ideas. A subsection of the Act made it a felony to assist in the organizing of any group that would engage in violent revolutionary tactics or advocate same.

Whitney argued that the Act was unconstitutional, because it violated rights of due process and equal treatment under the law. Her third ground of appeal, that the law was repugnant to the first amendment, was also rejected by the majority, the opinion of which was written by Justice Sanford. Of the right to freedom of expression, Justice Sanford wrote, "the freedom of speech which is secured by the Constitution does not confer an absolute right to speak." It is not, he held, an "unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom." Using the "clear and present danger" test formulated by Justice Holmes in the Gitlow case, the majority ruled that it was obvious the danger posed by Marxist incitement to revolution and violence was a sufficiently proximate risk to justify the curbing of free speech rights.

Two judges, Justices Brandeis and Holmes, wrote a separate opinion. Concurring in the result because they found the Supreme Court's limited power of review did not extend far enough to overturn the conviction, they nonetheless provided a far more vigorous defence of the first amendment than did the majority. The dissent, written by Justice Brandeis, is still regarded as perhaps the definitive encapsulation of the meaning and importance of freedom of speech.

Justice Brandeis gave his assessment of the first amendment's origins in the birth of America as an independent nation. The founders, he wrote, understood the dangers of political violence and the often precarious nature of representative, democratic government. However, they also understood that the best protection for free peoples was not the suppression of thought and imagination - because such intervention would breed fear, resentment, and would in the end lead to greater violence and instablility. Instead, the judge wrote, "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." (This is the true public safety argument when it comes to free speech, by the way). Addressing the issue of public order, Brandeis wrote some brilliant lines:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.

He continues, on the same theme:

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.

This case should be required reading for anyone who thinks that the Boissoin case is anything like good law.

Monday, April 7, 2008

Degradation of religious doctrines in Austria

Susanne Winter, a politician and member of the right-wing Freedom Party of Austria, has been indicted on charges of incitement to racial hatred and "degradation of religious doctrines" for some comments she made about Islam and the prophet Muhammad, says this story. This is the first I've heard about such a law about religious doctrines, but at any rate, Ms. Winter has been charged under it. Apparently she called Muhammad a "child molester" and made other similarly disparaging remarks about the Koran. In Austria, incitement to racial hatred can bring a sentence of up to two years in prison (I note with interest that two years is the exact same upper limit that we in Canada have on our Criminal Code s. 319).

According to this brochure on anti-racism in that country, Austria's hate speech laws are geared towards suppressing Nazi speech specifically - which is not surprising. There are provisions in their Code allowing for easier prosecution of Nazi expression than any other kind. Vienna is a signatory to international treaties which oblige it to ban the NSDAP and combat any manifestations of its ideology. There are other statutes covering incitement to violence against a church, or against a particular religion. Section 188, which seems to be one of the sections under which Winter is charged, is the one that covers doctrines.

She is also in trouble for warning of a "tsunami of Muslim immigration" about to sweep over Europe if current immigration trends continue. Her party, the FPO, is stridently anti-immigration, and has even put up propaganda posters saying that "Vienna must not become Istanbul." Two things are interesting about this, from the Canadian point of view. The first is that we would never have a viable political party whose main cause is stopping immigration. The second is that, even under our rather loose hate speech laws, no one would get into legal trouble for having said what she did. Our Code section about incitement is rarely used. Those laws seem to get a lot more exercise over in Europe.

Sunday, April 6, 2008

Naseem Mithoowani on NPR

The hate speech complaints against Maclean's magazine were brought about, in part, by the actions of four Osgoode Hall law students. One of those law students, Naseem Mithoowani, was interviewed on National Public Radio's On the Media show last Friday. You can listen to the clip here. Mithoowani had about 7 minutes airtime with host Bob Garfield.

Here is my favourite part of the interview. They are discussing the Maclean's piece:

Q: For a moment, let's agree that the piece is not only inflammatory, but, you know, fundamentally fascistic. Let's start with that as a premise.

A: Okay.

Q: Before you filed the petition, did you consider that you would be seen as intolerant of other views - and worse than that, by using the tools of Canada's liberal democracy to stifle dissent, that you were in fact realizing his very predictions, which is that Islam is, you know, is going to use the very tools of our society to take control over us all?

A: I actually, that possibility never crossed my mind...

admission against interest
n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. Another party can quote in court an admission against interest even though it is only hearsay.

(Yes, I know, she is not a party to any complaint, and I also know the Human Rights Tribunals don't operate according to the same laws of evidence as the courts. I just thought it was an interesting statement.)

Saturday, April 5, 2008

R. v. Ramsingh et al.

While reading the famous obscenity case R. v. Butler, I took a detour into some stare decisis, and wound up at R. v. Ramsingh (1984) from Manitoba. Ramsingh concerns a dealer of skin flicks, who had his stock raided by the police and was brought up on criminal charges. Section 163 of the Criminal Code makes it an offence to distribute or to possess for the purposes of distribution any obscene film, picture, or publication. The definition of an 'obscene' publication is provided as "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence."

At issue in Ramsingh were some pornographic movies the Winnipeg Vice Squad had gotten their hands on by way of an elaborate sting investigation (an undercover cop approached Mr. Ramsingh at his newsstand and asked for some "good stuff"). The Crown presented seven movies in total as evidence. Counsel for the defence submitted another three films that had been previously examined by the Court and found to be acceptable, for the sake of comparison.The task of the trial judge, Ferg J., was to determine whether the content of the films contravened s. 163 by coming within the Code's definition of obscenity.

Ferg J. gave a generally unfavourable appraisal of the films' artistic merit.
The plots in most are thin in the extreme, the acting is third grade, if not totally amateurish. There is no character development, no artistic merit, no redeeming qualities (except in two video cassettes which I will cover later) in any of the films. The scenes are disjointed, difficult to follow at times, and the dialogue is, for the most part, insipid, mundane and simple-minded in the extreme. The quality of the filming, the colour, and camera work for the cassettes, at least, is generally good.

The two films that most resonated with the judge (or, that possessed "redeeming qualities") were 'Bordello' and 'Deep Throat.' But for those of you keeping score at home, that is a pan for 'Swedish Erotica,' 'Caught in the Act,' and 'California Gigolo.' Well, at least the lighting technicians can still hold their heads up high. At any rate, the judge found that some of the videos could be described as 'obscene,' while others could not. It mattered little to the Defendant, who was convicted on all counts: possession, circulation, and possession for the purpose of circulation (had the defence lawyer never heard of Kienapple?).

What really struck me about this case was not the legal reasoning. The BCCA criticized his reasons in R. v. Pereira Vasquez, while the Supreme Court obviously approved - he was quoted in both the majority and the dissent in Butler. No, what I found really interesting about the case was this: there were seven movies placed in evidence by the Crown, and three from the defence. Without knowing how long they all are, I would have to guess that is at least nine or ten hours of film. Does anyone else find it just a little absurd that we paid a highly trained legal mind to sit in the courtroom for ten hours and watch pornography? Include lunch and cigarette breaks, and that would take up the better part of two working days. Is that really what we want our judges occupied with?

While we're at it, I think there might be more useful ways for those Vice Squad cops to spend their time, too.

Friday, April 4, 2008

The other battlefield

Professor Ronald Dworkin on free speech defenders of today:

People once defended free speech to protect the rights of firebrands attacking government, or dissenters resisting an established church, or radicals campaigning for unpopular political causes. Free speech was plainly worth fighting for, and it still is in many parts of the world where these rights hardly exist. But in America now, free-speech partisans find themselves defending mainly racists shouting 'nigger' or Nazis carrying swastikas or—most often—men looking at pictures of naked women with their legs spread open.

The man is very respected by the constitutional law crowd at my school, I can tell you that. Back in the 90s, he wrote a couple of articles on the right to pornography which raised some serious hackles with some feminists (like Rae Langton, for one). But if you don't have a stack of 15-year-old literary magazines around your house, how can you relive the intensity of it all? Be glad; for now, through the magic of the internet, you can experience Dworkin and Catharine MacKinnon throwing hammers at each other on the letters page of the New York Review of Books. A very good read.

Wednesday, April 2, 2008


Something else I did not realize about French history with freedom of speech: Emile Zola was actually tried and convicted in absentia of libel (scroll down) for his J'accuse defence of the wrongfully persecuted Captain Alfred Dreyfus. So was Georges Clemenceau, future French premier, who owned the newspaper that ran the article.

So the only ones out of that whole sordid business to be prosecuted for libel were Zola and his publisher. Dreyfus' accusers - people like Edouard Drumont - faced no such lawsuits.

And yes, it seems Zola was a very controversial figure, and had been long before he got mixed up in the Dreyfus affair. His writings were frequently vulgar and offensive, he criticized the authorities at every turn, and he was the second most caricatured public figure of his time, after the actress Sarah Bernhardt. In short, another very interesting individual. More proof that the interesting people are the ones who have the most to worry about when censorship gets out of hand.

Tuesday, April 1, 2008

He said, "My friend Bob, what do we need to make this country grow?"

Until I was doing a bit of research on the Michel Houellebecq trial, I had no idea that the actress Brigitte Bardot had been charged and convicted at least four times under the same French statutes. Apparently the animal rights activist is a bit of a provocateuse herself.