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Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:

Richard Warman, a lawyer who worked as an investigator for the Canadian Human Rights Commission, often filed complaints against "hate speech" sites — complaints that were generally upheld under Canadian speech restrictions. Fromm, a defender of various Holocaust deniers and anti-Semites, has been publicly condemning Warman for, among other things, being "an enemy of free speech." Warman sued, claiming that these condemnations are defamatory.

Friday, the Ontario Superior Court held for Warman — chiefly on the grounds that because Warman's claims were accepted by the legal system, they couldn't accurately be called an attack on free speech. Thus, for instance:

[25] The implication, as well as the clear of meaning of the words ["an enemy of free speech" and "escalated the war on free speech"], is that the plaintiff is doing something wrong. The comment "Well, see your tax dollars at work" also implies that Mr. Warman misused public funds for this "war on free speech".

[26] The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.

[27] The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.

[28] Freedom of expression is not a right that has no boundaries. These parameters are outlined in various legislative directives and jurisprudence. I find Mr. Fromm has exceeded these. This posting is defamatory.

Likewise, apropos another statement ("Since then, a number of dissidents have been dragged before human rights tribunals, largely through the efforts of CHRC hatchetman Richard Warman"), the court responds:

[32] While opposition to legislation is permitted, it is defamatory to say that Mr. Warman is largely responsible for "dragging" dissidents before the human rights tribunal, when in fact the "dissidents" were disseminating prohibited hate speech. The tribunal upheld the complaint. This posting is also defamatory.

Likewise, here's another statement that the court treated as defamatory and legally punishable:

[48] At the press conference after Mr. Fromm's comments, he introduced three other people who spoke of their "problems with Richard Warman". Mr. Fromm added, after one speaker:
Thank you very much, Jason. So, for posting an opinion, the same sort of opinion that might have appeared in editorial pages in newspapers across this country, Jason and the Northern Alliance, his site has come under attack and people who are just ordinary Canadians find themselves in front of the courts for nothing more serious than expressing their opinion. This is being done with taxpayers' money. I find that reprehensible.

[49] In one posting Mr. Fromm describes Mr. Warman's "campaign of intimidation" recitingvarious actions taken by Mr. Warman. He states that freedom of the Internet was the key issue.

[50] Again Mr. Warman was referred to as acting like a one-man thought police agency.

[51] The plaintiff is accused of using taxpayer money to "restrict freedom of speech" and of refusing "to allow those with differing opinions the right to express their views."

[52] The tone of all these allegations is derisive and holds the plaintiff up to ridicule and contempt. The words themselves and the inferences to be drawn are all defamatory.

Likewise, the court says, "[59] Mr. Warman is criticized for his anti-hate speech stance, and his professionalism and integrity are attacked. This would lead a reasonable reader to conclude that the plaintiff was an ideologue who wanted only to deny freedom of speech to those with whom he disagrees. [60 ]I find this posting defamatory."

* * *

It seems to me that Fromm was simply expressing opinions that the court disapproved of — that people who try to restrict "hate speech" are "enem[ies] of free speech," that people who are punished for hate speech are "dissidents," that people who for ideological reasons use the law to restrict speech they disagree with are ideologues who want only to deny freedom of speech to those with whom they disagree. Who is an "enemy of free speech" obviously turns on the speaker's view of free speech, and the view that he expects his audience to share, or that he wants to persuade his audience to share. Who deserves to be labeled with the generally positive term "dissident" depends on what dissent the speaker believes to be legitimate and morally proper.

Yet the Canadian justice system not only allows the suppression of certain viewpoints, and excludes them from free speech restrictions. With this case, it also tries to deny critics the right to label the speech they support "free speech," and the dissenters they like "dissidents."

The court is insisting that Canadians' speech not only follows the government-approved ideology on the topic of race, ethnicity, and religion (an ideology that I agree with, but that I don't think should be legally coerced). It is also insisting that Canadians' speech follows the government-approved ideology and terminology on the topic of free speech itself.

Some of the other statements come closer to factual falsehood, for instance when Fromm says Warman went after "tax-fighter Richard Kyburz"; a reader may infer that Warman went after Kyburz because of Kyburz's stance on taxes, rather than because of Kyburz's anti-Semitic speech. I'm not sure that even those, in context, should properly be seen as legally punishable. But the court's decision is in any event much broader than these statements.

Related Posts (on one page):

  1. Defamation Liability for Disagreements About Political Labeling:
  2. Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:
CEB:

It is also insisting that Canadians' speech follows the government-approved ideology and terminology on the topic of free speech itself.

I know virtually nothing about Canadian law, but it seems that one would be asking for trouble by even lobbying the legislature to change the law on freedom of speech. I.e, speech to the effect that the law is unjust would be unprotected, because in the legislature's view, the law is in fact just, and your speech is false.
11.27.2007 1:45pm
Smokey:
Canadian law takes another step in the world wide march from democracy toward inevitable dictatorship:
A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship.

The average age of the worlds greatest civilizations from the beginning of history has been about 200 years. During those 200 years, these nations have always progressed through the following sequence:

From Bondage to spiritual faith;
From spiritual faith to great courage;
From courage to liberty;
From liberty to abundance;
From abundance to complacency;
From complacency to apathy;
From apathy to dependence;
From dependence back into bondage.'


~ Lord Woodhouselee, Alexander Fraser Tytler,
''The Decline and Fall of the Athenian Republic,'' 1776.
With more than half of our population in the "dependence" stage, the only relevant question is: Will we have an American dictatorship -- or will we hand our collective heads on a platter to the kleptocrats running the totally corrupt U.N.?


OK, class, open book test at 11:00. Bring your Constitution.
11.27.2007 2:30pm
KeithK (mail):
This is why we must stand up and defend even egregiously offensive speech, such as Phelps. We need bright line rules that err far on the side of protecting speech. Otherwise the freedom is subject to steady erosion.
11.27.2007 2:42pm
Roundhead (mail) (www):
It is absolutely shocking the reign of terror launched by this Richard Warman (a perennial candidate for the federal Canadian Green Party) against those who would remain totally obscure (thank goodness) if not for his efforts.

Warman and his ilk (notably the federal and provincial human rights commissions) quite clearly want to destroy freedom of speech in this country -- as one of the HRC hatchetmen stated, "Freedom of speech is an American concept", and thus, he had no thoughts on it (this from a HUMAN RIGHTS commissioner!).

The fact is, human rights commissions, treaties and legislation have become a menace to actual civil rights in Canada and anywhere else that the "human-rightist" ideology holds sway.

(by the by, Warman pursues so-called "hate" sites with the zeal of a Torquemada -- so long as they are neo-Nazi. As for the real hate menace to contemporary society, he -- and the human-rights establishment -- have nothing whatever to say, unless it is to condemn "Islamophobia").
11.27.2007 2:47pm
Russ (mail):
Thank God I don't live in Canada.

Or would Warman consider what I just said to be "hate speech?"
11.27.2007 2:54pm
Bill Poser (mail) (www):
I agree that this is a disturbing decision. I do note, however, that it is merely the decision of a trial court, not an appellate court, and as such neither controls any other court nor reflects the higher levels of legal thinking in Canada. Furthermore, I note that the court's decision is devoted almost entirely to a review of the putatively libelous statements, with little discussion of the law. Such little discussion of the law as there is has to do with the status of publication on the internet. The constitutional issue (Article 2B of the Charter of Rights and Freedoms, which comprises Schedule B of the Constitution Act of 1982, guarantees the right to "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication") is not addressed, nor is there any discussion of the nature of fact as opposed to opinion, nor any justification for the court's assumption that legally licensed activity cannot properly be regarded as inimical to freedom of speech. In short, there is ample basis for appeal and little reason to regard this decision as reflecting the true state of Canadian law.

It is true that Canadian protections for civil liberties are not as clear as those in the US Constitution, and that civil liberties law in Canada is generally less mature than in the US, and finally, it is true that in Canada, in contrast to the US, there is an agreement that to put a bit more weight on social cohesion and a bit less on individual rights (legally made explicit in Article 27 of the Charter: "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."), but I think that there is still reason to hope for a vindication of freedom of speech.
11.27.2007 3:01pm
Hall of Mirrors:
Are Canadians permitted to criticize the Court's ruling or judge's reasoning as a dangerous precedent? Wouldn't that hold the judge up to "ridicule and contempt"?
11.27.2007 3:03pm
Bill Poser (mail) (www):
Hall of Mirrors,

Yes, Canadians can criticize the decisions of the courts without fear of legal penalty. Canada is not Saudi Arabia. For example, decisions on aboriginal title such as Delgamuukw v British Columbia have led to enormous amounts of public debate. There have also been criminal cases recently in which there was a good deal of public criticism of the arguably excessively lenient sentence. In these cases, the criticism is not of abstract matters but of the performance of specific judges. None of this criticism has triggered legal proceedings against the critics.
11.27.2007 3:11pm
Pon Raul:
. . . and the brain drain will continue . . .
11.27.2007 3:14pm
Teaeopy:
While I disapprove of bigotry-based conduct, I don't see that, in law that defines civil liability and criminal culpability, hatred or bigotry should be the tort or crime; perhaps the awards-determination phase in civil proceedings and the sentencing phase in criminal proceedings should be the arenas for redressing proven hatred or bigotry, if carefully-drawn criteria and authorizations were to be codified.

I wonder how subtle expressions of hatred or bigotry (considered by many to do more harm in Western countries than blatant expressions of hatred or bigotry), whether actual or merely alleged, will come to be treated in Canada and in other countries ostensibly attuned to human rights, and how critics of the remedy-promoters will fare.
11.27.2007 3:23pm
Adam J:
Teaeopy- huh?
11.27.2007 3:58pm
PLR:
I'm not familiar with this area of Canadian law, but it sounds similar to things I have heard about defamation under British law in this area.

I do think it's a little conceited to conclude that parts of the former British Empire are on the brink of totalitarianism due to their enforcement of civility. Is there some groundswell of opposition in Canada to these legal principles? Is our longstanding system of protected and chaotic speech so perfect that other countries must be persuaded to endure their versions of Fred Phelps?
11.27.2007 4:08pm
Roundhead (mail) (www):
***Is there some groundswell of opposition in Canada to these legal principles? Is our longstanding system of protected and chaotic speech so perfect that other countries must be persuaded to endure their versions of Fred Phelps?***

the answer, in short, is NO - and Bill POser, there is little reason to believe, based on the past rulings of the Ont. Superior court and the SCofC, that this decision will be reversed (think of the ludicrous "no third party" advertising in elections decision of the SCofC a few years ago; with the radical Rosalie Abella on the Court, it is certain only to become more restrictive of liberty of speech rights).
11.27.2007 4:19pm
PersonFromPorlock:
Do Canadians have anything to say in the first place? Perfect freedom exercised in the name of blandness wouldn't amount to very much; Canada muzzled may be indistinguishable from Canada freed.
11.27.2007 4:22pm
Roundhead (mail) (www):
***Do Canadians have anything to say in the first place? Perfect freedom exercised in the name of blandness wouldn't amount to very much; Canada muzzled may be indistinguishable from Canada freed.***
Why do Americans think Canadians are so bland? Have you ever even met a Canadian?

Personally, I've met many Americans, and but for one or two, my impression has been: "Hello? Is there anybody f***king home?"

Just my impression, though…
11.27.2007 4:32pm
Teaeopy:
If nothing an agency or officer of government does can be safely criticized as being detrimental to a constitional freedom as long as the conduct passes legal muster, it's ultimately the government that can't be safely criticized. Hasn't anything ever been declared unconstitutional in Canada? How can the country's constitution ever get amended, and how can laws be changed or superceded, if there is not free discussion of what's wrong and what should change? Sedition laws could simplify everything, and electronic and telephonic surveillance would be especially useful for enforcing them.
11.27.2007 5:17pm
Clayton E. Cramer (mail) (www):

Why do Americans think Canadians are so bland? Have you ever even met a Canadian?
I think they mistake the artificial civility that the Canadian media like to present as Canadian political discourse for actual Canadians. My experience is that Canada has a bunch of very thoughtful, intelligent, and sensible people who don't buy into the collectivist, left-wing idiocy that CBC tries to portray Canada as.
11.27.2007 5:24pm
Bill Poser (mail) (www):
Roundhead,

The "no third party advertising" decision is hardly on point. It is relevant only if one considers ANY restriction on freedom of speech unconstitutional, but then the US has McCain-Feingold, to which libertarians objecton similar grounds. One can easily see a court holding that this decision improperly treats opinion as fact without any conflict with the no third party advertising ruling.
11.27.2007 5:37pm
Kazinski:
Canadians lost their freedom of speech a while ago, just recently the lost the right to remain silent:

The right to silence in Canada is not an absolute rule that requires police to stop interrogating people who have no wish to speak with investigators, the Supreme Court of Canada has ruled.

.
11.27.2007 6:10pm
Harry Eagar (mail):
It wouldn't get you brought into court on a defamation charge in this country, but just try calling someone who labels himself 'pro-choice' 'pro-abortion' and see what the reaction is from the defenders of open speech.
11.27.2007 6:18pm
Bill Poser (mail) (www):
Kazinski,

Saying that Canadians have lost the right to remain silent is a gross exaggeration. What the Supreme Court actually ruled was that the police are not obligated to terminate their questioning as soon as the person being questioned asserts his right not to answer. They did not allow refusal to answer to be itself a criminal act or allow any other penalty, such as loss of the presumption of innocence, nor did they allow any form of coercion. I too have problems with the decision, but the situation is not nearly as extreme as you suggest.
11.27.2007 7:25pm
Kazinski:
Poser,
You may have a point, but I was just paraphrasing two prominent Canadian newspaper editorials that said "High court erodes right":

How many times must a person accused of a crime assert his constitutional right to remain silent before the police stop questioning him?

Apparently, 18 isn't enough. That's how many times Jagrup Singh told his police interrogator he did not want to talk after he was arrested in connection with a 2002 shooting in Surrey, B.C.


Or "William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, calls the ruling 'an extraordinary and regressive decision for a Canadian court.'"

It is hard to imagine a "right to remain silent" that allows police to continue questioning a subject, without a lawyer present, over multiple sessions and the 18 times the suspect said he didn't want to talk because his lawyer advised him not to. You have the right to remain silent until the police break you down.

And I should say before I am accused of being inconsistent, I don't believe there is a right to be silent in non-criminal terrorist investigations. Nor should the product of such interrogations be allowed in a criminal context.
11.27.2007 7:54pm
anym_avey (mail):
Why do Americans think Canadians are so bland? Have you ever even met a Canadian?

I've met several. And I can state with confidence that your women are definitely not bland, either in appearance or personality!
11.27.2007 8:24pm
Hucbald (mail) (www):
Hey, Ontario Superior Court: My crap has a higher IQ and more integrity than any of you. You're a bunch of lying, cheating, rump-riding, authoritarian morons. Consider yourselves defamed, tossers.

Smokey: I've always loved that Tytler quotation.

What's the difference between despotism and democracy? With despotism, one idiot is in charge. With democracy, all of the idiots are in charge.

Heaven is a kingdom, not a democracy.
11.27.2007 8:30pm
lrC (mail):
It doesn't cost anything to bring a reasonable claim before the Commission, but the Commission is of course taxpayer-funded.

The Wikipedia entry for "Canadian Human Rights Commission" claims "Richard Warman, an ex-CHRC employee is the primary complainant pursuant to Section 13 of the Canadian Human Rights Act. 24 out of 29 Complaints referred by the Commission to the Tribunal since 2002 have been complaints filed by Warman."
11.27.2007 8:40pm
Daryl Herbert (www):
Kazinski: I don't believe there is a right to be silent in non-criminal terrorist investigations

Do you mean civil terrorists like Richard Warman?

(I had better not travel to Canada in the near future!)
11.27.2007 8:45pm
Daryl Herbert (www):
Bill Poser: There have also been criminal cases recently in which there was a good deal of public criticism of the arguably excessively lenient sentence. In these cases, the criticism is not of abstract matters but of the performance of specific judges. None of this criticism has triggered legal proceedings against the critics.

So suppose a Canadian judge lets a rapist off with a light sentence (6 months) and I call him a "rapist coddler."

Under the standards of this opinion, I would be liable. Under a literal meaning, the allegation that he physically caressed a rapist holds him up to ridicule and contempt and is untrue. Even under a non-literal meaning, the judge presiding over my libel trial could decide that "coddler" is inconsistent with having given a six-month sentence, and that therefore I'm liable.

The thing to take away from this ruling is, if it isn't overturned, hyperbole and vigorous speech are not protected in Canada.
11.27.2007 8:53pm
The Ace (mail) (www):
The court is insisting that Canadians' speech not only follows the government-approved ideology on the topic of race, ethnicity, and religion (an ideology that I agree with, but that I don't think should be legally coerced). It is also insisting that Canadians' speech follows the government-approved ideology and terminology on the topic of free speech itself.

Modern liberalism in a nut shell. The same goes for college campuses.

Remember, they're "tolerant," just ask them...
11.27.2007 8:56pm
Bpbatista (mail):
Who knew that George Bush was also ruler of Canada? How else does one (i.e., a liberal) explain this fascistic crushing of personal freedom and liberty?
11.27.2007 8:56pm
gattsuru (mail) (www):
Poser, neurotypical humans tend to have problems with prolonged questioning. The American courts have recognized this in Chambers v. Florida, Ashcraft v. Tennessee, and many other decisions where prolonged questioning was used to elicit a confession. While I agree that the early poster was overblown, interrogating someone to the point where that particular case did is reaching fairly far to the point where it would be an unacceptable interrogation under our version of the right to remain silent.

Of course, this is the same interpretation of the Canadian Charter of Human Rights that has routinely declared innocent, living, adult citizens to be not covered by the phrase "human".

I'm not impressed, but I'm not surprised.
11.27.2007 9:31pm
holdfast (mail):
"For example, decisions on aboriginal title such as Delgamuukw v British Columbia have led to enormous amounts of public debate. There have also been criminal cases recently in which there was a good deal of public criticism of the arguably excessively lenient sentence."

So what if I say that the Delgamuukw decision is a jurisprudential joke based on a campfire tale? That only in a native case would the court find a 100+ year old legend about a mystical great bear and a deer to be persuasive evidence? That it was a results-driven decision that does not fall within spitting distance of genuine, western legal reasoning?

Does that make me aa rascist or am I just bitter because of the points that this cost me on my Property midterm in first year law? Or both?

Anyway, the truly scary thing here is the so-called human rights commissions and the way that they now apparently make "law" while not themselves subject to the checks and limitations of a real legal system, like the rules of evidence. I'm sure I'd find many of Warmann's targets just as despicable as he does, but if what they are saying is "hate speech" under the Criminal Code of Canada, then they should be prosecuted under the law, in a court, where at least they will have the full protection of the Charter and other applicable rules. I don't much care for Hate Speech laws in the first place - since I think that laws against incitement, conspiracy etc are sufficient to deal with truly dangerous speech, but at least in court you have to prove a case. Hell, the court made the Crown prove the existence of the holocaust - I know it seems silly that they had to, but it leant more legitimacy to the crown's eventual win.
11.27.2007 10:01pm
Richard Aubrey (mail):
On campuses, and not infrequently elsewhere, but not, so far, in the courts, you will hear assertions that "hate speech" is special, provides a special threat. Must be dealt with differently.
Hate speech is defined as anything any member of an accredited victim group finds inconvenient.
On an eastern campus, a prof reported that the prospect of having Horowitz show up with his anti-reparations campaign had the prof's students melting down emotionally. This is bullshit, of course. Even undergrads are smarter than that, although some may have caught on that it's useful to fake it.
Howsomever, anything which makes a member of an accredited victim group anxious enough to report having been anxious is going to be pitched as an exception to the otherwise omnipotent and infinitely valuable Noble First.
Whether the courts buy it as in Canada is a different story, but the issue is going to come before the courts, and it won't be just FIRE litigating. The usual suspects do NOT want certain kinds of speech to be free. We'll be depending on our courts...shudder.
11.27.2007 11:23pm
JohnAnnArbor:

On campuses, and not infrequently elsewhere, but not, so far, in the courts, you will hear assertions that "hate speech" is special, provides a special threat.

On U of Michigan's campus in the 1990s, it wasn't uncommon to see flyers saying "no free speech for fascists!" Of course, the writers of the flyers define "fascists" as anyone to the right of Hugo Chavez....
11.27.2007 11:41pm
Richard Aubrey (mail):
John.
The problem is that some of those flyer-posters, or their sympathizers, have gotten into the admins.

FIRE has an embarrassment of riches from which to choose.
11.28.2007 12:13am
Roundhead (mail) (www):
***My experience is that Canada has a bunch of very thoughtful, intelligent, and sensible people who don't buy into the collectivist, left-wing idiocy that CBC tries to portray Canada as.***

damn straight!
11.28.2007 11:51am
neurodoc:
I take it our neighbors to the north have no <i>New York Times Co. v. Sullivan</i> to set a higher bar for what is actionable slander/libel of a public figure.

Would one be putting themself in legal jeopardy if they were to disparage Celine Dion while on Canadian soil?
11.28.2007 11:54am
Elliot123 (mail):
"It wouldn't get you brought into court on a defamation charge in this country, but just try calling someone who labels himself 'pro-choice' 'pro-abortion' and see what the reaction is from the defenders of open speech."

Some would offer vigorous objection. Some would support it. So what? That's a very healthy situation.
11.28.2007 4:47pm
holdfast (mail):
"Would one be putting themself in legal jeopardy if they were to disparage Celine Dion while on Canadian soil?"

In Quebec or in the ROC? I would say it just shows good taste.
11.28.2007 5:30pm
Richard Aubrey (mail):
Elliott. Healthy until we have some kind of law similar to Canada's system. Don't bet there aren't some folks hoping for it.
If it happens, it will be in bits and pieces, a regulation here, a legal definition there.
And, presto.
Not being a "law", it would be hard to overturn.
11.28.2007 9:07pm
dweeb:
Bill Poser, your defenses of Canada all seem to be of the form, "it's not quite THAT bad..." and I can't help wanting to append "....yet" to all of them. The case that is the subject of this post sets up an inductive rule for an incremental erosion of liberties that has no end, because it says that not only is a class of speech prohibited, but it also outlaws "meta-speech" about the prohibition itself. There is no limit to the extent this line of reasoning can be extended down the road to tyranny.
11.29.2007 8:46pm
Jay Myers:
Smokey:

~ Lord Woodhouselee, Alexander Fraser Tytler,
''The Decline and Fall of the Athenian Republic,'' 1776.


The Library of Congress has several books by Tytler but has no record at all of the existance of either "The Fall of the Athenian Republic" or "The Decline and Fall of the Athenian Republic". In fact, haven't been able to find any references to either title in any reputable academic source. If the quote is accurate, and it may very well not be, it probably would have come from his "Elements of General History".
12.1.2007 6:27pm