Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 4

Here are part 1, part 2 and part 3:  they set the tone (1) and cover my imperfect observation of how Mr. Katz presented the plaintiff’s case (2&3).  Again, I warn I am an untrained and uninformed observer and these are just my opinions…

We resume our tale as Ms. Barbara Kulaszka picks up the proverbial ball for the defense.  She is an extremely intelligent lawyer – certainly among the most intelligent people I have ever met.  With meticulous care, she began to dismantle Mr. Katz’s points, one by one.

Where Mr. Katz started out by referring to precedents from the US (not particularly relevant here, in Canada, as we have a different legal legacy), Ms. Kulaszka went straight to one of the most pertinent rulings on this type of a matter by no less than the Supreme Court of Canada: the  ‘Wic radio case’ .

If you are not familiar with it, here is an excellent comment/explanation of the case and its significance.  In a nutshell, it sets a precedent to ‘thaw’ some of ‘the chill’ surrounding freedom of speech:  a radio guy and an anti-gay-literature-in-the-schools person had a debate on air, during which the radio guy called her all kinds of names (including a Nazi) and, in a fit of hyperbole, suggested or implied she would condone violence against gays.  She sued.  Lost.  Won on appeal.  Supreme Court overturned the appeal and said original ruling should have stood.

One of the Supreme Court Justices even went as far as to suggest they should have gone further, been stronger in the wording of their ruling to side with the freedom of speech versus the defamation thingie.  Public figures, following the Wic radio case, were fair game for all kinds of criticism to the point of name-calling.  The danger of ‘chilling public debate’ was so great and so very detrimental  to society that public figures – or figures who put themselves directly into public lime-light – would simply have to grow thicker skin.  At least, that is my layman’s understanding…

As Mr. Katz had (during his bit) kept insisting this is not about ‘freedom of speech’ but Mr. Warman’s reputation, and as he claimed that Mr. Warman is not, indeed, a public figure but rather ‘just a private citizen’, Ms. Kulaszka began to chip away at his case from here.

Even though Mr. Katz tried to define a ‘public figure’ to be ‘elected officials only’, Ms. Kulaszka (pronounced like ‘Gulash’, but with a ‘K’ sound in the beginning and ‘ka’ sound added to the end) pointed out that Mr. Warnan had, indeed, run for public office in the past. But she did not get side-tracked into a discussion of whether ‘running for office’ is equivalent to being ‘an elected official’ and thus giving any weight to Mr. Katz’s bogus definition – nobody in their right mind was buying into it anyway.

Instead, she had focused on making  her own , very valid, points!

Ms. Kulaszka presented all kinds of evidence (including huge ‘featured’ article in the Ottawa Citizen with a huge photo of Mr. Warman) that Mr. Warman had, through his own actions (including repeatedly using Section 13 of the Human Rights Code to persecute people whom he perceived as not believing the ‘proper’ things)  propelled himself into the public forum.  Therefore, he is no longer ‘just a private citizen’.  The name Mr. Richard Warman is well known in Canada. His image is well recognizable.  In newspaper articles, Mr. Warman describes himself as a community activist.

The Wic radio case demonstrates that ‘community activists’ do, indeed, legally qualify as ‘public figures’…and that the Supreme Court of Canada itself has ruled that calling a ‘community activist’ all kinds of nasty names (especially as hyperbole) is not actionable on the grounds that they may be/are defamatory…

The conclusion is inescapable:  Mr. Warman is, indeed, a ‘public figure’!

Therefore, criticism of Mr. Warman falls into the category of ‘political speech’.

All the items Mr. Warman is seeking to sue for ‘defamation’ for are within the scope of the ‘Wic case’ and, therefore, not actionable as defamation by a public figure.

Therefore, ‘freedom of speech’ trumps protecting Mr. Warman’s reputation from defamation.

Thus, ‘prima facie’ for a defamation case has not been established.

Which means Richard Warman’s side has not met ‘the test’.

Therefore, no disclosure of identities should be court ordered.

Bing.

Bing.

Bing.

Ms Kulaszka lined up the dominoes and let Mr. Warman’s own words ‘push’ the first one!

One cannot simply state ‘these words are defamatory’:  one must actually prove it.

Next…

Since one of the things Mr. Warman’s defense team seemed to have found most defamatory was that he had been called ‘a Nazi’, Ms. Kulaszka brought out some excellent examples of how the term is currently used in popular culture.

Like, what is the deal with the ‘Soup-Nazi’ on Seinfeld?!?!?

Calling the vendor a ‘Soup-Nazi’ did not, in the least, imply that the character had somehow subscribed to the ideology of the National Socialists:  rather, it described his humourless and intolerant behaviour!

Building on this, she referred to submissions to the court that demonstrated that this was the manner in which the term was typically used on the Internet, crowning it with describing Godwin’s Law (quoting from Wikipedia):

It states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”[3][2] In other words, Godwin put forth the sarcastic observation that, given enough time, all discussions—regardless of topic or scope—inevitably end up being about Hitler and the Nazis.

As Godwin’s Law was formulated back in 1989 – out of frustration from using the term ‘Nazi’ so frequently and indiscriminatingly in the discussion fora, it is clear that calling someone ‘a Nazi’ in this context could  not possibly be misunderstood by anyone as in any way being ‘realistic’.  It would most certainly not affect someone’s reputation!

And Ms. Kulaszka did not end there, quoting from several ‘liberal’ websites, including ‘BigCityLib’, to demonstrate the ‘common usage’ of this and related terms (like ‘brownshirt’) among all ‘stripes’ of bloggers – not just ‘right-wing’ ones or those posting on Freedominion.

‘Vulgar abuse’ is not ‘defamation’.

Systematically, Ms. Kulaszka addressed the 4 points the plaintiff had to establish, targeting each of the arguments made by Mr. Katz.  And, demolished them.

Bing.

Bing.

Bing.

She saved the argument I found most powerful for the very end…

People craft an ‘anonymous’ identity for themselves online – but that does not mean that they only use that identity in one place.  Many – if not most – people who spend a significant amount of time online will use that same crafted identity in many different online communities:  from discussion fora (like FreeDominion) to blogs to support groups.  Support groups for serious issues, where other survivors of things like sexual abuse or addiction help each other overcome some very difficult, painful and intensely personal issues.

It is precisely because of this perceived anonymity that people are not afraid to seek help, while they are protected by this online anonymous label.

If their identity from FreeDominion is revealed, their anonymous identities (the label they use online) (and/or ip address which will also identify them) will necessarily be published alongside their real-life name!

Then, everyone and anyone will be able to trace them:  from friends, relatives and neighbours to employers – and on and on.

Revealing their identity to Mr. Warman, so he may proceed with a defamation suit, must be weighed against the potential damage which could be done to the anonymous posters if  it became known what they had anonymously posted not just on FreeDominion, but on every other site on the internet.  Including sites that may deal with such intensely personal topics as incest survivor, and so on.

It is only if the judge finds that the potential damage to Mr. Warman’s reputation (should he not be able to sue for defamation) is greater than the potential damage to the anonymous posters should their identities be revealed – only then would the 4th point of Judge Wilton-Seigel be met.  Only then should the court order for the identities to be made public.

This really struck home to the judge.  She asked if there were means through which this additional information about the anonymous posters could be kept private, if their identities were published.  And, she was very pensive when she found out it would not be possible…

With that, Ms. Kulaszka finished her presentation and the judge broke for lunch.

Following the lunch break, with everyone refreshed, it was time for Doug Christie to speak.

Despite the Warman camp’s earlier objections, the judge had ruled that Mr. Christie, who represents some of the people who had posted comments on the Freedominion site, may briefly address the court as his clients rights will have been impacted by any ruling on this motion.  And, Mr. Christie came in, no hold barred!

Actually, I think Mr. Christie had pointed out some of the most important ‘bits’ which had not already been ‘demolished’ by Ms. Kulaszka (her time was limited…).  And, he addressed them most eloquently and in terms even a ‘legal ignoramus’ like I could ‘get’ his points!

Earlier, Mr. Warman’s most excellent lawyer, Mr. Katz, had referenced ‘the Brown case’.  Now, Mr. Christie pointed out that Mr. Katz should have noted the footnote in the ruling on that very case:  rhetorical hyperbole are not actionable!

Mr. Christie also noted some Supreme Court ruling (I could not take notes fast enough to record the detail here) that ‘adjectives constitute comment’.

(Now, some of the other spectators there that day had pointed out during the lunch break, Mr. Warman wished to sue people who had stated he ‘had behaved LIKE a Nazi’ – not that he WAS a Nazi, but rather that his behaviour was similar to the behaviour of Nazis…..  and that the term ‘like’ – wording used by the plaintiff in this motion – defines ‘comment’.  I am not sure if Mr. Christie’s point referred to this, or to another part of plaintiff’s case.)

Mr. Christie stressed that in order to have a case for ‘defamation’, the statement made must be such that it would be likely to be taken ‘at face value’ by anyone reading it (as that is the only way it could be detrimental to one’s reputation) – which, in these cases, it clearly could not be.  The postings were merely vitriolic, could not seriously be ‘taken at face value’ and thus could not damage reputation!

Next, Mr. Christie had returned to one of the terms Mr. Katz had vexed most poetic about:  the one which Mr. Katz claimed his client’s reputation was defamed through suggestion of sexual impropriety/deviance – something that one cannot realistically defend against without harming one’s own reputation even more….

Mr. Christie said that during the lunch break, he took the time to look up the term in question.  And, he could not – and he named a number of the ‘standard’ dictionaries – find the term ‘facophiliac’ in any of them!  (Please excuse me if my spelling is imperfect – taking ‘real-time’ notes is harder than it seems!)

In other words, there is no such word!

It is a ‘made-up’ word with no real, definable meaning!

And, according to our laws, you cannot actually defame someone by calling them something that is not a real word!!!

If I am not mistaken, that one got a giggle from the judge – perhaps because Mr. Katz had belaboured this insult so much….going on and on and on about how very defamatory to his client’s reputation it was to be called this.

“Incoherent statements cannot carry a defamatory meaning because they carry no meaning:  they are incoherent!’

This was a reference to a statement (referred to both by Mr. Katz and by Ms. Kulaszka) which Mr. Warman believes defames him.  In this statement, he is called all kinds of things from ‘communist’, ‘Iranian thug’, ‘Stalinist’, ‘Nazi thug’ and many more.  It seems rather ‘incoherent’ to seriously imply that someone is all of these things at once!  It is, by definition, an incoherent statement – and therefore not defamatory..  (OK, Ms. Kulaszka also addressed it and it seems to me that this statement clearly is either that ‘vulgar abuse’ thing (as per Ms. Kulaszka) and not actionable on those grounds OR ‘an incoherent statement’ (as per Mr. Christie) and not actionable on the incoherence grounds…..there really is no middle ground on this one!)

Mr. Christie tidied things up and pointed out that for these – and other – reasons, the ‘prima facie’ part of the 4-part-test was not met:  therefore, Mr. Warman has an insufficient case.

With a few rebuttal comments by Mr. Katz (it is not necessary to prove that people are likely to ‘believe’ the statements – as long as they contained words  that had, at some point in time, in other cases, been deemed ‘defamatory’ then this part of the case has been met) and Ms. Kulaszka (Mr. Katz had started out pleading ‘context’ – and now wishes to deny it and go on words alone, but the meaning of words changes over time so the time/place/context are essential), the hearing was over.

My opinion?

It is only Mr. Katz’s considerable skill and eloquence that has prevented this thing from having been kicked out of court long ago!

But then again, I am not a lawyer…

 

 

2 Responses to “Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 4”

  1. Observer Says:

    Katz and Warman are obviously in the Xmas spirit right?

    Xanthippa says:
    Well, I have to be honest here: it took me a long time to write this up.

    Life and all that – kind of popped up and kept me so busy, I sometimes did not even have a chance to check my email for days at a time..much less finish something I had started earlier. I am terrible at ‘finishing things.

    My apologies.

    Though, I would not toss the plaintiff and his lawyer into the same pot – so to speak! Just like one would not blame a lawyer who is hired by a murderer or something…

    And, I actually think Mr. Katz is a very nice young man – certainly very intelligent, eloquent and has that rare ability to convey more through his voice than the words he says: excellent quality in lawyers and politicians!

  2. The Lynch List, 03-Jan-2011 « The Lynch Mob Says:

    […] Fourth: Xanthippa continues his great work reporting on the Richard Warman vs Free Dominion free speech case: Part 4. […]


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