black@pundit.DEC (America first, without apologies.) (10/22/85)
>Subject: Hate literature laws no violation of freedom of speech >Posted: 11 Oct 85 16:45:26 GMT > >Rick McGeer has expressed the opinion that convictions under >the Criminal Code of Canada for publishing hate literature or >for publishing false news are a violation of the right of >freedom of speech under Canada's Charter of Rights and Freedoms. >I do not agree. I agree with Mr. McGeer. >The following column appeared in The National, the newspaper of >the Canadian Bar Association, September 1985 (p. 37). It was >written by Albert S. Frank, a lawyer in Edmonton. >Reprinted with permission. Because it is copyrighted, I reproduce it in its intirety, with comments. > * * * * * * > >The recent prosecution and convictions of Mr. Zundel and Mr. Keegstra >have dramatically brought to public attention the laws concerning >hate literature. In reaction to these events, Mr. Monopoli, in the >May 1985 issue of The National, wrote an article suggesting that >such prosecutions violate the principle of freedom of speech ("Zundel's >conviction could be Pyrrhic Victory"). In his opinion, no matter >how obnoxious and repugnant hate literature might be, people should >have the freedom to create and spread such material. However, I >wish to suggest that it is perfectly consistent with our respect >for freedom of speech to prosecute hate propagandists. OK. Fine. Who determines the definition of Hate Literature? Who sets the standards? Who determines what is obnoxious? Who determines repugnancy? What if the Hate Literature just happens to be aimed at a particularly corrupt political party that just happens to be in power? "Oh, that's Hate Propoganda you're spreading. We don't like that. So Mr. Publisher, here's a "tenner" for you. Publish from your cell." And what if the Hate Literature later turns out to be the truth? >It is inherent in the notion of human rights that the rights >of an individual must be restricted for the sake of other >individuals. Your right to freedom of action must be limited >out of respect for my rights. If we allowed you a completely >unfettered right of freedom of action, you could physically >attack me or violate my rights in other ways. Surely a respect >for your rights does not require an utter contempt for my rights. Some things are obvious. A person has the right to be secure in his person. property, and effects. And he has the right to protect himself and his property by any means necessary. >If we take the contrary view, that your right to freedom of action >is absolute, then we are saying that I have no right, not even >a right to live, since you could use your absolute freedom of >action to murder me if you wished. But we are not taking the contrary view. Don't obfuscate. >A general respect for human >rights therefore requires that rights be restricted, not absolute. So long as that restriction is not a violation of human rights in itself. >Like other rights, freedom of speech can be abused to harm others. >A person who uses words to threaten physical violence to get money >is committing robbery, and thereby violating the rights of the victim, >every bit as much as if he said nothing and, instead, waved a weapon >and gestured at his victim's wallet. The criminal law makes this >and other abuses of freedom of speech illegal. It is commonly accepted that theft and robbery are crimes. Using my ability to convey sounds, i.e. "speech," to be my weapon of force in a crime is not covered under Freedom of "Speech." >Hate literature is another abuse of freedom of speech which violates >the rights of its victims and can therefore properly be restricted. Hate Literature is a pretty broad term. Somebody needs to define it better. >Hate literature violates a right which our common law has long >recognized, a person's right in his reputation. According to the >well-established law of defamation, a person has a right to legal >protection from those who would attack his reputation, just as he has >a right to legal protection against those who would attack his person. Of course. A just person, who has done no wrong, does not deserve to have his reputation defamed. Now, what of the person who has lived in a community for decades, never bothered anyone, contributed to charity, went to church on Sunday, and generally was a nice guy, but in reality, he's wanted for murder? Is it then defamation of character to expose the fact that he is a criminal? >According to Black's Law Dictionary (5th ed.), "Defamation is that >which tends to injure reputation; to diminish the esteem, respect, >goodwill or confidence in which the plaintiff is held, or to >excite adverse, derogatory or unpleasant feelings or opinions >against him ... unprivileged publication of false statements." Aaahhh, sooo....A DEFINITION!!!! Here's the key...FALSE STATEMENTS constitute the defamation. False statements, not those which are true. The Wanted Murderer stands up and says "You're a liar! I did nothing wrong! You're a Hate-monger." >Thus, the common law recognizes that the right of freedom of >speech does not extend to permit a person to violate the rights >of his victim by making false derogatory statements about him. There's that word FALSE again. If the material is false, a rights violation has occurred. BUT WHAT IF THE STATEMENTS ARE TRUE?????? And who is to define truth????? How can a controversial topic be adequately discussed if it cannot be published without fear of prosecution? >Even politicians, who deliberately put themselves in the public >eye and involve themselves in public controversy, are entitled >to such protection, as is illustrated by the case of _Christie v. >Geiger et al._ (Dec. 4, 1984, Alta. Q.B., Foisy J.). Politicians who have skeletons in their closets should consider not running. But then again, consider the case of the Hero of Chappaquiddik. >If an individual is entitled to protection against defamation, >surely a large group of individuals should be entitled to protection >as well. Yes, protection against FALSE statements is justified. But who defines truth? Where is the governing General Definition that draws the line between truth and lies? Without that definition for protection, abuse is rampant. >Unfortunately, our civil law is not presently a very useful >tool for the protection of the rights of groups. In Canada there >are severe restrictions on class action lawsuits. Class action suits usually benefit lawyers the most, anyway. >Furthermore, >the law of defamation itself is designed for the protection of >the individual plaintiff, not the group of plaintiffs. And rightfully so! >As was stated recently in the case of _Booth v. B.C.T.V. Broadcasting >System_, 139 D.L.R.(3d) 88 at 92, in cases where the words complained >of are clearly defamatory the issue "is whether the words were >published of and concerning the particular plaintiff who is claiming." Exactly. If the plaintiff cannot show that he suffered a loss, then there is no suit. >If the civil law cannot protect against a violation of the rights >of groups of citizens, then it is appropriate for the criminal law >to do so. Very appropriate. No question. >It is especially important to do so since hate literature >has the potential to cause much greater harm than an attack on a >particular individual. Yes, because defamatory, untrue statements can incite others to do harm to otherwise a large number of innocent individuals. >Few people in human history have faced death because of defamatory >statements made particularly against them but millions of people have >been killed because they happened to belong to an ethnic or religious >group which had been the object of hate propaganda. The key here is that we have defined "defamatory" as false statements. FALSE statements. FALSE propoganda. But what if the statements are true? >However, even leaving aside the most extreme results of hate >literature, it would be absurd if a man could sue to protect >his reputation from an accusation of selling shoddy merchandise, >but he and his fellow victims could not obtain either civil or >criminal protection against defamatory statements accusing them >of every evil act known to mankind and of being behind every >disaster which has befallen the human race in the last few centuries. If they suffer no loss as individuals, why should they be allowed to sue? Can they show that the untrue statements caused a loss of profit? And what if the statements are true? >Nor should we fear that hate literature laws will inhibit proper >discussion of public issues. Oh, yes we can have such fears. Zundel dared question "generally accepted" history. he attempted to bring before the public scrutiny some serious questions about the Holocaust. If his material were proven true, it would shed doubts as to the legitimacy of the Israeli State. Such a question is in fact a public issue. >A true statement, however harsh, may always be stated. Certainly, since a true statement does not constitute defamation. But any statement must see the light of day before its truth can be determined. And publishers must have the right to print about controversial issues without the fear of somebody making an arbitrary determination that their material constitutes an untruth and is therefore Hate Literature. >Furthermore, the discussion of public issues does not require personal >attacks. (My, my. Here's a jurist saying what I have been saying all along. Read closely, Mr. Feingold, Mr Shindman, et alia.) >A person could not be sued or prosecuted for a scathing and inaccurate >criticism of government policy. A citizen has the right to be wrong about >a public issue. My Gawd! If I criticize the Government for believing in the Holocaust, it's OK. But if I criticize anybody else for believing in it, it's a crime! And if I publish material about a public issue, that I in good faith believe to be true, its' OK. But the author just said that it's a crime to be wrong. >However, if a person goes beyond saying that he thinks a policy >is wrong, foolish or appalling and makes personal attacks on the >politicians promoting these policies, he may be sued and rightly so. Agreed. But only if the attacks contain FALSE information. >Our devotion to democratic discussion does not require that we >permit false _ad hominem_ attacks on politicians or on anybody else. (My, my. Here's a jurist saying what I have been saying all along. Read closely, Mr. Feingold, Mr Shindman, et alia.) >The same principles justify the civil law of defamation and the >criminal laws concerning hate literature; they stand or fall >together. Yes. They clearly apply to PROVEN FALSEHOODS, proven beyond all doubt, and not somebody's Generally Accepted concept of true and false. After all, at one time, the world was flat and the universe rotated around it. >Those who are of the opinion that hate literature >is an unacceptable restriction of freedom of speech must, to be >consistent, urge that the tort of defamation be abolished for >precisely the same reason. A good argument. But to be consistant, we must clearly define Hate Literature as information that is proven to be false. >It is possible to believe that our defamation and hate literature >laws are acceptable in principle but unsatisfactory in practice. >I have spoken to many people who think that it would be better >to sue hat propagandists than to prosecute them, a view which I >share. The civil law should be reformed to allow class action >lawsuits against those who defame groups. Wrong. This leads to Persecution, rather than Prosecution. The proverbial shoe can easily end up on the other foot, as well. Better to leave well enough alone. >Until or unless the civil law is reformed, it is good that the >criminal law is available. We must not forget the seriousness >of group defamation. The fact that the hate propagandists use >words in their attacks does not make their behaviour any less a >violation of rights or any less serious than smashing synagogue >windows or burning a cross on a lawn. I fail to see the connection. If I smash a window, I've caused an economic loss. If I burn a cross, I've committed the crime of arson, or illegal burning. But if I publish information in which there is the possibility of truth, it must rightfully be shown case by case that an economic loss occurred because my information was false. In the cases of Mr. Zundel and Mr. Keegstra, they advocated an opinion, in good faith, about a public issue that was contrary to generally accepted history. DO THEY NOT HAVE THE RIGHT TO BE WRONG ABOUT A PUBLIC ISSUE??????? DO THEY NOT HAVE THE RIGHT TO PUBLISH CONTRARY OPINIONS??????? Yes, Freedom of Speech clearly is "dead as a doornail" in Canada. Sic Transit Gloria Mundi. * * * * * * [The article on which I comment originated from:] >(The National, Canadian Bar Association, September 1985. Copied > with permission.) > >Dave Sherman >The Law Society of Upper Canada >Toronto --Don Black "...dec-vax!decwrl!dec-rhea!dec-pundit!black" VAXmail: PUNDIT::BLACK ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ "...accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. --Unamimously adopted in Congress, 4 July 1776 ================================================================================ Posted: Mon 21-Oct-1985 10:26 To: ROLL::RHEA::DECWRL::"net.politics" Posted: Tue 22-Oct-1985 11:03 To: ROLL::RHEA::DECWRL::"net.politics"