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."

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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.

Defamation Liability for Disagreements About Political Labeling:

The Canadian case I note below reminded me of U.S. v. Cooper, an 1800 case in which Cooper was convicted under the Sedition Act of libeling then-President Adams.

On its face, the Sedition Act was (as its defenders pointed out) a considerable improvement over the English law of seditious libel; it purported to punish only false statements, and ones that were "malicious" to boot. Even today, factually false statements about particular people (even political leaders) said with knowledge of their falsehood may be punished, potentially even criminally. But in practice the Act ended up being used to punish opinions that judges disagreed with, and not just false factual allegations. Cooper offers a great example. Here's one part of Cooper's allegedly libelous statement: "Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war." Here's the relevant part of Justice Chase's instruction to the jury (at the time, judges were expected to express their opinions about the facts in the course of their instructions, though Chase seems to have gone pretty far even by the standards of the time):

The [defendant] states that, under the auspices of the president, "our credit is so low that we are obliged to borrow money at eight per cent. in time of peace." I cannot suppress my feelings at this gross attack upon the president.... Are we now in time of peace? Is there no war? No hostilities with France? Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her? Have we not armed our vessels to defend ourselves, and have we not captured several of her vessels of war?

Although no formal declaration of war has been made, is it not notorious that actual hostilities have taken place? And is this, then, a time of peace? The very expense incurred, which rendered a loan necessary, was in consequence of the conduct of France. The [defendant], therefore, has published an untruth, knowing it to be an untruth.

Whether the time of the "quasi-war" with France was or was not a "time of peace" is not a question of fact; it's a question of opinion -- of how you should define "time of peace" -- and Cooper's readers would have recognized it as such. Even when libel law may properly punish factual falsehoods, it shouldn't let judges or juries proclaim some political characterization of the facts (we're in a time of peace because no war has been declared, even though there are sporadic hostilities; someone who uses lawful means for restricting speech is an enemy of free speech) to be "false."

Likewise, consider another part of Cooper's statement, "Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army." Here's Justice Chase's instruction related to this point:

[T]o assert, as [defendant] has done, that we have a standing army in this country, betrays the most egregious ignorance, or the most wilful intentions to deceive the public.

We have two descriptions of armies in this country -- we have an army which is generally called the Western army, enlisted for five years only -- can this be a standing army? Who raises them? Congress. Who pays them? The people. We have also another army, called the provisional army, which is enlisted during the existence of the war with France -- neither of these can, with any propriety, be called a standing army.

In fact, we cannot have a standing army in this country, the constitution having expressly declared that no appropriation shall be made for the support of an army longer than two years. Therefore, as congress may appropriate money for the support of the army annually, and are obliged to do it only for two years, there can be no standing army in this country until the constitution is first destroyed.

There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government. Therefore, to say, that under the auspices of the president, we were saddled with a standing army, was directly calculated to bring him into contempt with the people, and excite their hatred against him.... This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election....

Again, the alleged falsehood wasn't related to specific facts (e.g., Adams was paid such-and-such a bribe by so-and-so to authorize certain military expenditures) -- it had to do with the characterization of a certain army as a "standing army." Chase thought this political term ought to be used to mean only certain kinds of forces, just as he thought "time of peace" ought to be used to mean only certain situations; Cooper disagreed. That's a difference of opinion about how to apply political labels -- but Chase's interpretation of the Sedition Act treated the matter as involving a factual falsehood, which could be legally punished.

That's a big potential problem with libel law, a problem that American law has in recent decades has largely avoided. (There are other problems with American libel law, but I set them aside for now.) Unfortunately, Canadian law seems to be slipping into this problem, when criticisms of anti-"hate-speech" activists are involved.