dave@lsuc.UUCP (David Sherman) (10/22/85)
Don Black writes, over and over and over (in response to my posting an article reprinted from the Canadian Bar Association newspaper): > 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? The definition is set out clearly in the Criminal Code of Canada. Several extremely difficult tests must be satisfied. A jury of 12 unbiased ordinary men and women determine whether those criteria have been satisfied. > "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." "We" must be a jury, which is required to be UNANIMOUSLY convinced beyond a reasonable doubt that the publication was false, was published wilfully, was published by the accused who knew it to be false, and so on. > And what if the Hate Literature later turns out to be the truth? That's what the jury system is for. It was not made public until after the Zundel trial that Judge Locke refused a request to take judicial notice of the fact of the Holocaust. This forced the fact of the Holocaust to be proven at the trial as a necessary ingredient of Zundel's conviction. That the Crown succeeded, showing Zundel's publications to be false, is evident from the unanimous jury conviction. > Hate Literature is a pretty broad term. Somebody needs to define it > better. Zundel and Keegstra were convicted under two very clear sections of the Criminal Code - much clearer than just "hate literature". See ss. 177 and 281.2 of the Criminal Code of Canada. Those sections are drafted in a way that provides numerous defenses to the accused, including, of course, truth. > 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? Not at all. Don Black and I agree that truth is a complete defense to any charge under the above sections of the Criminal Code. But suggesting that truth was a relevant defense in the Zundel and Keegstra cases is, obviously, a red herring. > Aaahhh, sooo....A DEFINITION!!!! Here's the key...FALSE STATEMENTS > constitute the defamation. False statements, not those which are true. Agreed. > The Wanted Murderer stands up and says "You're a liar! I did nothing > wrong! You're a Hate-monger." If the WM can prove same, he can recover for defamation of character. > There's that word FALSE again. Yes, indeed. > If the material is false, a rights violation has occurred. BUT WHAT IF > THE STATEMENTS ARE TRUE?????? See above, and stop misleading people. Come on, Don, do you still claim the Holocaust didn't happen? Don't be totally stupid. I see you still haven't taken up my challenge to go speak to ANY Jewish person over 60 of Eastern European ancestry and ask them about what happened to them and their family in the Holocaust. Or are we all liars? > And who is to define truth????? Again, a jury. The same questions apply to any other crime. > How can a controversial topic be adequately discussed if it cannot be > published without fear of prosecution? The fact of the Holocaust is not a legitimate controversy. "Discussed"? Sure. Questions can be raised, and they can be answered. But when you DENY the fact of the Holocaust, you in the same breath accuse a large segment of society (Jews) of being liars. That is racism, anti-semitism and hate propaganda. Now, shut up. > Politicians who have skeletons in their closets should consider not > running. True. But politicans with no skeletons, whose opponents fabricate skeletons, are entitled to protection through the law of defamation. That was the point made in the article I quoted. > 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. Nonsense. See above. That's what we have juries for. > Class action suits usually benefit lawyers the most, anyway. Which might be a reason why they're not widely permitted in Canada. > Exactly. If the plaintiff cannot show that he suffered a loss, then > there is no suit. Which is why it's appropriate to take harm against a large segment of society away from the civil courts and into the criminal courts. > >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. Yes, Don. I'm losing my patience here. You're clearly insinuating that Zundel's publications were, in your view, true. Well, answer this: *************************************************************** IF ZUNDEL'S PUBLICATIONS WERE TRUE, WHY DIDN'T HIS DEFENSE OF TRUTH SUCCEED IN RAISING AT LEAST A REASONABLE DOUBT IN THE MIND OF AT LEAST ONE OF THE TWELVE JURORS? *************************************************************** The answer is self-evident. Zundel's attempt (which was put forward strongly by his counsel in court) at showing the truth of his publications failed utterly. Since that was not enough to convince Don Black, I have to assume that Don Black is either totally and abysmally stupid or a racist anti-semite of the worst kind. I suspect the latter. > But what if the statements are true? See above. > >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? It's precisely because the statements cause harm to the group as a whole, and not to the individual plaintiff, that it's appropriate to have a criminal remedy. No-one is seeking damages from Zundel. We were simply trying to stop him from publishing his damaging filth. > And what if the statements are true? See above. > >Nor should we fear that hate literature laws will inhibit proper > >discussion of public issues. > > Oh, yes we can have such fears. Why? Nothing in what you've written gives the slightest cause for concern, given the protections allowed by the legislation and by the jury system. > Zundel dared question "generally accepted" history. he attempted to > bring before the public scrutiny some serious questions about the Holocaust. BULLSHIT. Zundel didn't "question". The evidence is so overwhelming to anyone who investigates history that there is nothing to question. What Zundel did was falsely accuse the Jewish people of fabricating the Holocaust for material gain. His publications, if read by unknowing people who aren't familiar with history, can lead such people to believe that the Holocaust never happened and that Jews are thieves and liars. > 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. Fair enough. But he took that risk, knowing that he was publishing material that was not true. (The jury could not have convicted him without this essential ingredient being shown.) > >A true statement, however harsh, may always be stated. > > Certainly, since a true statement does not constitute defamation. My, my. We agree. > 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. Red Herring again. If it's an "arbitrary determination", that arbitrariness is determined by an unbiased jury. A statement which is KNOWN to be false by the publisher (as Zundel's publications were) can't possibly fit into the above paragraph. > >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.) In fairness to Mr. Feingold and Mr. Shindman, someone who makes it clear from his postings that he's a racist anti-semite (see above) is fair game for personal attacks. > 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! It's a crime when you call several million Jews thieves and liars. > 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. Nonsense. Essential to the Zundel conviction was the fact that he knew his publications to be false. > >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. Haven't we been over this already? > >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. Exactly. Which is why we have the requirement of a jury being convinced unanimously beyond reasonable doubt. > >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. That's already clearly defined and was an essential ingredient of the Zundel and Keegstra convictions. > >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. My own feeling is that where the tolerance and community of a multicultural society is threatened, the criminal law is the most appropriate remedy. No-one wants damages from Zundel. We're not out for his money. We want to stop him from encouraging non-Jews to hate Jews. > 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. Good faith was attempted as a defense and rejected by the jury in both cases. > DO THEY NOT HAVE THE RIGHT TO BE WRONG ABOUT A PUBLIC ISSUE??????? They do not have the right to spread material, which they know is wrong, for the purpose of fomenting hatred against Jews. > DO THEY NOT HAVE THE RIGHT TO PUBLISH CONTRARY OPINIONS??????? Opinions are one thing. Known falsehoods are another. > Yes, Freedom of Speech clearly is "dead as a doornail" in Canada. Sic > Transit Gloria Mundi. Gloria was sick on the subway on Monday? :-) (Don't worry, I've studied Latin and I do know what it means.) Freedom of Speech is alive and well in Canada. Freedom to spread lies about groups, for the purpose of stirring up hatred, is not. Dave Sherman The Law Society of Upper Canada Toronto -- { ihnp4!utzoo pesnta utcs hcr decvax!utcsri } !lsuc!dave
robinson@ubc-cs.UUCP (Jim Robinson) (10/24/85)
In article <863@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes: [Don Black asks: ] >> 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? > >It's precisely because the statements cause harm to the group as >a whole, and not to the individual plaintiff, that it's appropriate >to have a criminal remedy. Unless I am mistaken it is necessary in a libel case to prove that the falsehoods printed resulted in damage to the reputation of the plaintiff. Since at no time was it undertaken to determine whether Zundel's publications resulted in such damage to the collective reputation of Jews in general, and since it is very unlikely that any significant damage was done (most people having better things to do than listen to the rantings of neo-Nazis) I would guess that had the Zundel case been tried as a regular libel case that he would have been acquitted. So what it appears we have here in Canada are two "libel" laws: one that can put you in *jail* without the need to prove injury was done to the plaintiff's reputation, and one that can *fine* you *only if* said damage had been sustained. This seems to me to be at the very least a serious inconsistency. An inconsistency that was not properly addressed above by Dave Sherman. >..............................No-one is seeking damages from Zundel. >We were simply trying to stop him from publishing his damaging filth. I do not see why only a criminal remedy can achieve this objective. I imagine a civil court could just as easily be used to fine Zundel and prevent him from publishing further Holocaust material by the issuance of an injunction. (Not being a lawyer I would be interested in hearing if this is indeed not feasible.) What this all boils down to is that I have a great deal of trouble watching people (even escapees from the loony bin) being put in jail for *telling lies*. >Zundel and Keegstra were convicted under two very clear sections >of the Criminal Code - much clearer than just "hate literature". >See ss. 177 and 281.2 of the Criminal Code of Canada. Those sections >are drafted in a way that provides numerous defenses to the accused, >including, of course, truth. The following is essentially a reposting of an article I wrote concerning my perceived deficiencies of section 177 of the Criminal Code of Canada. *********************************************************************** As Dave Sherman pointed out the issue was *not* freedom of speech. This is due to the fact that section 177 of the Criminal Code places what I consider to be an unduly harsh restriction on that freedom that is so dear to so many of us. This is what section 177 says: "Everyone who wilfully publishes a statement, tale, or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and is liable to imprisonment for two years." First off, I personally do not think that the public is best served by unnecessary restrictions on freedom of speech. On the contrary, I believe that it is imperative that any democratic society be given as much access to as much information as possible. It is only then that the legitimate debate which is the cornerstone of a democracy can be guaranteed. It is unfortunate that society would have to suffer the occasional Ernst Zundel in such a setup, however, the possible abuses of the alternative far outweigh the need to deter every wacko that comes along from espousing his views. So why do I think section 177 is unduly harsh and/or unnecessary ? - I believe that Canada has got to be one of the most tolerant countries on this planet. I do *not* think that the average Canadian can be swayed by an argument merely because it has been given semi-official status by virtue of it being in print. No, I believe that Canadians are more than capable of recognizing garbage for themselves and of acting accordingly. It should be noted that this tolerant state of affairs that exists today in this country was brought about without previously having to jail the intolerant minority among us. If, however, one believes that basically the people are like sheep that have to be led, then this argument is undoubtedly falling on deaf ears. - Section 177 is extremely vague. The term public interest is used but not defined. As the law stands it would appear to me that it could well be applied to routine libel cases which were never meant to be tried in a **criminal** court. All that is apparently necessary is that the injured party has to be ruled to be a public interest. Needless to say what really worries me is that the most obvious public interest is the government whose massive resources dwarf those of the average citizen. - Continuing on the theme of vagueness consider the phrase "is likely to cause injury or mischief". The "is likely" part implies to me that the author of the contentious publication needs some kind of crystal ball. But the real problem with the phrase is the use of the word "mischief". Among other definitions for that word my dictionary gives: (i) a source of harm or irritation, and (ii) action that annoys. Do we really want to throw people in jail because they have printed lies that "irritate" or "annoy" a "public interest"??? If I say (print) something like "this country's current economic malaise can be blamed entirely on the existence of crown corporations(*)"; a statement that is obviously untrue and yet is likely to cause mischief to ( read annoy ) a public interest ( read crown corporation ), could a jury observe the letter of the law and return anything but a guilty verdict? It is my belief that section 177 is a law waiting to be abused. Maybe not today, maybe not next week, month, or year, but as surely as governments have abused other loopholes, at some point a government will not be able to resist the temptation of abusing this law to the detriment of all of us. (*) note to American readers: crown corporations are corporations which are owned by the government, e.g. PetroCan - the "peoples'" oil company; and Air Canada, the carrier of the masses. *********************************************************************** J.B. Robinson
friesen@psivax.UUCP (Stanley Friesen) (10/30/85)
In article <863@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes: > >The definition is set out clearly in the Criminal Code of Canada. >Several extremely difficult tests must be satisfied. A jury of 12 >unbiased ordinary men and women determine whether those criteria >have been satisfied. > >"We" must be a jury, which is required to be UNANIMOUSLY convinced >beyond a reasonable doubt that the publication was false, was published >wilfully, was published by the accused who knew it to be false, and so on. > Hmm, this sounds a whole lot like the definition of libel in US law! If this is an impediment to free speech, so is the US libel code. -- Sarima (Stanley Friesen) UUCP: {ttidca|ihnp4|sdcrdcf|quad1|nrcvax|bellcore|logico}!psivax!friesen ARPA: ttidca!psivax!friesen@rand-unix.arpa
robinson@ubc-cs.UUCP (Jim Robinson) (11/04/85)
In article <823@psivax.UUCP> friesen@psivax.UUCP (Stanley Friesen) writes: >In article <863@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes: >> >>The definition is set out clearly in the Criminal Code of Canada. >>Several extremely difficult tests must be satisfied. A jury of 12 >>unbiased ordinary men and women determine whether those criteria >>have been satisfied. >> >>"We" must be a jury, which is required to be UNANIMOUSLY convinced >>beyond a reasonable doubt that the publication was false, was published >>wilfully, was published by the accused who knew it to be false, and so on. >> > Hmm, this sounds a whole lot like the definition of libel in >US law! If this is an impediment to free speech, so is the US libel >code. I guess it's exactly like the US libel law if in the States: 1) the case is tried in a criminal (not civil) court, and 2) the plaintiff is not one or more *private* citizens but is in fact the ***government***, and 3) it is not necessary to prove that any damage was done in order to obtain a conviction and hence a possible jail term. J.B. Robinson