‘Betrayed!’ – a book by Connie Fournier

“F” stands for “Free Dominion”.

That is what Dr. Michael Geist wrote in his ‘internet freedom countdown’.

“F” could just as easily could have stood for “Fournier” – as in Connie and Mark Fournier, who have done more for the freedom of speech and freedom on the Internet than any other Canadians.  And this time, I am not using hyperbole!

20 years to the day and in the very building I had signed my marriage license, I came to observe and blog about a court case involving Free Dominion:  Connie and Mark Fournier.  It was a civil case involving anonymity on the internet and both the Canadian Civil Liberties Association and Dr. Geist’s Electronic Frontier Foundation were intervenors in the case.  Having heard of the latter two and considering any court case they both thought important enough to intervene in to definitely have a significant impact on my own internet and speech freedoms, I came to spectate.  (OK – I have to admit – I am a Geist ‘acolyte’.)

While following this particular case and many, many more, I came to deeply admire Connie and Mark.  Over the years, they have made significant impact on the evolution of our speech and internet rights, always from a deeply principled perspective.

Now, before you get the idea that I agree with Connie and Mark’s political views, let me stop you right there.  They are social conservatives who come from a Christian perspective.  I am a libertarian, just this side of turning into an-cap. And a militant ignostic as well as a registered Kopimist.

Despite the greatly different views we hold on a myriad of topics, I came to like and deeply respect the Fourniers.  Even when we discussed topics we disagreed on, they were respectful and principled and debating things with them has always been a pleasure.

Full disclosure:  the one principle both the Fourniers and I completely and totally agree on – and it is perhaps the most important principle of them all – is the importance of freedom of speech.

I came to understanding the true and essential need for freedom of speech as the cornerstone of our civilization and the internet as the vehicle through which it is anonymously and effectively delivered because I was not only born on the wrong side of the Iron Curtain, I was also born the daughter of a political dissident.  Perhaps because of this, I learned early on that without the freedom to criticize and ridicule political and religious ideologies and figures, you lose the means of defending all your other rights and freedoms. And while I don’t know the route that brought Connie and Mark to the same conclusions, it is a demonstrated fact that they have not only lived by that principle, they have sacrificed all to preserve freedom of speech in Canada (and, by extension, all Magna Carta countries) and have put their financial and physical security – their very well being on the line to protect anonymous speech (in their case, on the internet), which is so very crucial in preventing the abrogation of free speech in public spaces.

OK – I have now sketched in the background so that you, my dear reader, are aware of what I know, think and whatever prejudices I may have regarding  my review of Connie Fournier’s new book:  ‘Betrayed!  Stephen Harper’s War on Principled Conservatism’.

One more thing before I start:  here is a most excellent review of the book by Jay Currie (and, no, I did not read his review before I had made my own mind up).  The comments are excellent!

The Review:

‘Betrayed!  Stephen Harper’s War on Principled Conservatism’ by Connie Fournier is a truly scary book.

Connie Fournier is both intelligent and eloquent and has the skill to line the little pearls up, one by one, till they form a brilliant necklace – or an effective noose…

Yes, I saw a part of the journey that Connie so accurately describes in her book – but I truly only saw a small part.  Yet, step by step, event by event, convoluted happening by convoluted happening, she lights the path and puts forward some very convincing evidence that points not just to the corruption of our ‘progressive’ leaning bureaucracy but also demonstrated how the Harper ‘iron fist’ is affecting things behind the scenes (whether through direct action or through carefully selective inaction).  Limited by the legal rulings still muzzling her, she succeeds in getting the important points across in a logical, accurate and believable manner.

This book has bought into focus the consistency with which the Harper government has sought to control, regulate and stifle internet communication.  The book stops before the Trans Pacific Trade Treaty  –  again, a Harper government ‘baby’, the leaks about which prove the veracity of everything else written in the book.

Yes, I would recommend it as a read – even though I disagree with Connie’s conclusion that the Green Party would be the natural place to cast a protest vote for.  No – I think the Pirate Party of Canada is a much better candidate, as their abid opposition to Bill C-51 is coupled with opposition to copyright consumer right abuses that the TPTT imposes as a supra-national law.  If there is no Pirate Party candidate in your riding, please, do consider running for them.  If my health were better, I most certainly would do my best to try to run for them!

But, again, I digress…

This is an important book to read for everyone who understands the crucial role freedom of speech plays and who would like help navigating the legal jungle of bills and attempts to deny it to us, the citizens – especially as it relates to the electronic medium.

Whether neo-Con or not, this book will open your eyes to the systematic process that is already in place to persecute political foes of the party in power and is written in such an accessible way that even non-techies will understand the implications of the proposed muzzling legislation coming from Harper’s ‘Conservative’ government.

Everyone of my relatives and friends will be getting a copy from me!

Reddit, the Jesse Jackson ama, Victoria’s secret firing and the aftermath

If you spend a lot of time on the interwebitudes, you will probably have across the name ‘reddit’ – even if you are not a frequent user of the site.

Personally, I love the place!

And, I freely admit that my blogging time has decreased when my reddit time increases.

If you spend even a little bit of time reading the news, you will probably have heard that reddit has had a little bit of a blow up.  In the figurative sense.  Being the sharing kind of person that I am, I thought I’d get some of the background and links here, in one place, for your convenience, my dear readers.

First thing to remember is that reddit is user-generated content and most of the moderators are volunteers, with a life outside of reddit (if such a thing is possible) and that only a fraction of the people responsible for making reddit the awesome community it has been are actually employees of the company.

Anyone (who registers) can create a post, a comment to a post, or even create a whole channel (called a subreddit).  If you have thought of it, chances are, there is a subreddit for it!

Here are just a few examples from my favourites:

And politics, world news, and so much, much more!

One of the most popular subreddits ever is AMA = Ask Me Anything.  When President Obama went on it, even the robust servers of reddit were overloaded.

This particular subreddit, AMA, had an employee named Victoria Taylor.  A very popular employee, whose job it was to verify that the people answering the AMA were the actual people named, not their assistants or PR flunkies.

And this was the proverbial straw that broke the camel’s back!

Everyone (the moderators and the redditors, that is) went into full rebel mode, either blacking out subreddits or freezing submissions for a specified symbolic time period or apologizing and stating reasons for why they remained open (this is mostly true for the support groups or the fluffier pages – even such ‘apolitical’ subreddits as WTF (what the fuck – on of my favourites) went dark (marked as ‘private’).

This blowup is popularly called AMAgeddon and is the reason why so many reddit alternatives (including its almost clone, Voat) are down because they just cannot handle the influx of reddit defectors.

And the petition calling for the interim CEO, aka Chairman Pao, to resign got over 160,000 signatures in just a few hours.

Of course there is a lot that lead up to this.

Drip, drip, drip…

Chairman Pao fired a popular dude – just because he got leukemia.  (OK, I lost the link to that twitter feed, but it’s true.  I’m sure if you do a little digging, you can find it.  Sorry – there is now such a glut of info…that Twitter thingy was one of the first things I saw, but now it is drowned out….apologies.)  First, reddit accommodated him, letting him work from his current home, then threatened to fire if he did not relocate to California.  Then, when he agreed to get them a letter from his MD saying it’s OK to relocate, one day later, Chairman Pao called him up and fired him anyways, citing his poor health as a reason.  Even though he had managed to do his job despite the illness just fine…

Drip, drip, drip…

Chairman Pao had made changes, attempting to turn reddit from free speech user generated content into a ‘safe space’.

In case you are not familiar with speech codes, ‘safe spaces’ is the ultra Political Correct speak for non-controvesrial and PC self censored to the point of irrelevance.  Yeah…

Drip, drip, drip…

And this policy started coming into place by trying to completely delete whole subreddits that were deemed ‘not safe spaces’.

Like a subreddit that made fun of fat people.

Now, don’t get me wrong:  I have the figure of a goddess!  A palelolithic fertility goddess, to be exact!

Yet I was deeply offended and seriously angered when I learned that reddit deleted the subreddit that made fun of fat people!  I’m a big girl (really, I am) and I don’t need someone – anyone – to protect me from people making fun of an aspect of what makes me me!  GRRRRRR!!!

So, it is in this atmosphere of people being very unhappy that censorship, politically correct censorship, was ruining reddit that the firing of Victoria Taylor came.

Perhaps even more importantly, in came on the heels of an AMA session with the notorious race hustler, Jesse Jackson, which (rather predictably) turned out to be not very pleasant for the ‘good reverend’.

One of the thing about the reddit community (redditors) is that they are difficult to easily place into any of the current political group.  OK, I am oversimplifying here, obviously, but if I were to describe the generic generalization caricature thingie of most redditors, I would say they are free speechers, socially progressive, strongly individualistic techies.  Live and let live – and say it like it is, without pretentious sillyness.

As in, we tend to live our social live on the internet, where a person’s gender and race are not visible and certainly not a factor in evaluation.  Only one’s opinions and online behaviour (history) are used by others to form opinions about one.

Because all other context is missing.

Striped away.

The internet is the most egalitarian of fora!

And, most of us find ‘speech codes’ to be beyond silly.

Yes, we can be hurtful – but we poke fun at our selves as much as at others.  And because our online presence is crafted to be whatever we choose it to be, we are not afraid to say what we actually think, regardless of our gender, colour, orientation, fat content or anything else!

Which is why the timing of Victoria Taylor’s termination at reddit is so important:  it came on the heels of an AMA session with Jesse Jackson.

An AMA session that, rather predictably, did not go so well for him.  Actually, reading it was really, really hilarious!!!!

Jesse Jackson seems to have complained that his nephew was ‘shut out’ from the opportunities in Silicon Valley because he is black….except that his nephew is a professor at MIT…..because ‘racism’.

It gets betted from there:  from people asking about his illegitimate son (whom he fathered while married) to, well, calling him a racist twat – to recommending he fire his publicist for ever letting him do a reddit AMA!

I highly recommend reading the whole thread – it is hilarious!  I was in pain from laughing!!!

Which, again, highlights the problem:  Jesse Jackson was hoisted on his own petard and raked over the coals for his prejudice, racism and divisiveness.  For profiting by stoking the racial flames rather than being a healer and making our society better.

Very predictable reaction from the reddit core audience.

But, the result was that Victoria, the employee responsible not for the mocking, but for lining up and verifying the guest, was fired by the PS-correct-driving CEO.  Who is trying to impose the hated, nay, reviled, ‘safe spaces’ agenda onto a free speecher, deeply individualistic community.

So, yeah.

Drip, drip, drip!!!

The proverbial bucket overfloweth!!!

Welcome to AMAgeddon!!!

Thoughts on the Ruling in Baglow Vs. Freedom of Speech

For the background on this case, please see here.

For the full ruling, see here.

Prior to the closing arguments, I begged John Baglow to, please, stop this lawsuit, even at such a late date.  I promised I’d help him fundraise to cover his costs if he, even at this point, called the whole thing off.

Why?

Because I firmly believed that any ruling on this case would necessarily be a loss for freedom of speech and a disaster for all of us who socialize on the interwebitudes!

And I was right!

Yes, Connie and Mark Fournier, as well as Peter O’Donnel, have won because even though Madam Justice Polowin found the comments to be defamatory, she also found them to be fair comment and dismissed the case.

So, yes, the Fourniers and POD have won.

But it is a bittersweet victory for them and a decided loss for freedom of speech in the internet.

Let me explain why…

First, let’s name the elephant in the room:  the process is the punishment.

Baglow has dragged the defendants through the court system for years and cost them tens, if not hundreds, of thousands of dollars in court costs and lost time/productivity.  Yet, in her wisdom, Madam Justice Polowin did not order Baglow to pay the Fournier’s court costs.

Not having any training in legal matters, I find this mindblowing.

If the words were deemed to be ‘fair comment’, as Madam Justice Polowin had ruled, why should the Fourniers and POD have had to pay tens of thousands of dollars in legal fees, travel and accommodations in order to defend themselves against what she has ruled is a baseless accusation?

And why should they have to pay half the costs of a court expert in internet communication:  an ‘expert’ who is so very up on internet communication and customs that he testified that he’s never ever heard of Godwin’s Law?!?!?

Really?

An internet communication expert who’s never heard of Godwin’s Law?

Expert?

Come on, this is a joke!!!

Even my mother-in-law, who needs help logging on to Facebook, has enough internet savvy to know Godwin’s Law, aka reducto ad Hitlerum…

But, that is besides the point:  the bitter lump of coal (actually, coal is not that bitter, but you know what I mean…) here is that while the defendants may have been found innocent, but they still get punished by not having their costs covered and having to pay for an ‘expert’ which would not have been necessary had the judge had even high-school level knowledge of the online world around her.

Second, I most vociferously disagree with some of her rulings on a the various issues raised in the case, because they will, in a very real sense, cause a serious chill in online communications.  It will probably take me multiple readings to fully analyse the significant damage this ruling poses to freedom of speech, but, one of her rulings practically jumps out at me.

This is the ruling that providers of an online discussion space are considered to be the publishers of what other people post to these fora, whether this is moderated or not.

This spells a disaster for every blogger that permits comments and makes the running of un-pre-moderated discussion fora a very serious liability danger:  most will probably be limited to permitting only politically correct speech and no discussion of controversial topics whatsoever.

In reality, Madame Justice Polowin ruling means that, for example, WordPress or Blogger, by providing a platform for publication with the aim for people to come there and exchange ideas, that this makes WordPress or Twitter etc. the publishers of that communication and just as liable for the words published on their platform by third parties as if they themselves had written it.

Just think about the impact this ruling will have…

Sorry, I’ve got to leave this here for now….you see, dear reader, I suddenly have this terrible pounding headache….

John Baglow vs. Freedom of Speech

Connie and Mark Fournier have won!!!

Most awesome news!!!

I’m off to read the ruling here – will comment more (and finally post the missing write-ups) soon!

UPDATE:  Here is what Jay Currie has to say about this ruling.

MORE UPDATE:  Here are my initial thoughts after having read the full ruling.  They’re not happy thoughts…

CATO Institute: Net Neutrality, Obama and Oatmeal (Berin Szoka)

Here is some food for thought:

What do you think?

Dr. Baglow vs. Freedom of Speech: September 23rd, 2014 – Roger Smith aka Peter O’Donnel

This is reporting on a real-life (unfortunately) court case, the whole narrative of which is indexed in Dr. Baglow vs Free Speech – and listed at the top bar of this blog.

As I left off, Barbara Kulaszka, the lawyer representing the defendant Mark Fournier, had finished her closing arguments.  It was now Roger Smith’s (known online as Peter O’Donnel) turn to make his closing arguments.

It is difficult to describe Roger Smith in a few words because he is quite a complex person.  Even my short exposure to him made that clear.  So, what I write, can only be a very tiny glimpse of this unique (in a very good way) and highly intelligent man.

Roger Smith is of a similar age as the plaintiff, Dr. Baglow, and both have silver hair – but that is where the physical resemblance ends.

Where the extroverted Dr. Baglow is expansive, speaks loudly with expressive body language (his doctorate is, after all, in poetry – so some theatricity ought to be expected) while the introverted Roger Smith is shy and humble in his demeanor, speaking softly and gently.

So, one has to listen carefully when Mr. Smith speaks – not just because he is soft-spoken, but also because he makes many little jokes under his breath!  And his jokes are well worth straining one’s ears for.

Even Madame Justice Polowin seems to enjoy his jokes – her eyes sparkle and she has even, a couple times, rewarded Mr. Smith’s humour with the kind of smile usually reserved only for Mr. Frankel.  (At least – in this courtroom…..though Connie has, at times, earned it as well.)

I will be paraphrasing a lot, but, to the best of my understanding, Roger Smith’s defense revolved around the following points:

Firstly, he asserted that the impugned words were actually not defamatory – and urged the judge to find that way.  After all, the fact that the late Jack Layton was referred to as ‘Taliban Jack’ not only did not cause him any defamation, it seemed to actually help his electoral success!

Madam Justice was nodding her head in assent.

Secondly, he (RS) did not mention the plaintiff by name – Roger Smith’s online pseudonym called Dr. Bglow’s online pseudonym a name.  But, pseudonyms are not the same as real-life names and, as even the court’s own expert had testified, people often build a very different, unique persona for their online pseudonym – one which intentionally differs in tone and perhaps even opinions from their real-life identity (for various legitimate reasons).  Thus the two ought not be conflated:  Roger Smith did not call Dr. Baglow anything – Peter O’Donnel called Dr. Dawg a name, that’s all…

In addition, the context of the debate – ongoing, skipping around all through them interwebitudes from blog to blog to discussion boards and back again, over a number of days – had reduced the defamatory potential of the impugned words to exactly zero.

Since that debate did bounce around from one online place to another, it is not the easiest thing to follow the actual real-time sequence in which the various comments were made because some were time/date stamped in one time-zone, some in another.  In order to make it easier for Madam Justice to follow the timeline, RS had taken the pains to sequentialize them in Appendix A.  Madam Justice was much less interested in this at that point in time than Mr. Smith was, but, in my never-humble-opinion, she will find it a useful tool as she reviews the evidence.

Which she will – she made that abundantly clear!

For the duration of the trial – and even in the communication that was not publicly visible, like the various emails that form the voluminous body of the exhibits in this trial and tribulation, the plaintiff and his lawyer, Mr. Burnet (who had, actually, commented as a ‘guest’ on the Warman trial coverage on this very blog in the past), had referred to Roger Smith as an old crank, a wingnut.

This, I believe, was the very word that Madam Justice Polowin used extensively when questioning the court expert on online media and communications – and he assured her that once a person has acquired an online reputation as a ‘wingnut’, nothing that person says will be taken seriously by anyone else and his commentary will either be skipped right over or simply seen as humorous interlude…

But, I digress…

Throughout this whole ordeal, Peter O’Donnel had been referred to as a crank, a nut, a wingnut…and his writings were referred to as ‘incoherent rambling’ and ‘woolly essay’.  In other words, ridiculed and dismissed.  There was even one email read into evidence from Dr. Baglow to someone (Jay Currie, I suspect, but am not certain) where Dr. Baglow dismisses Peter O’Donnel as an inconsequential crank, saying he’s probably not even going to bother suing him because coming from him, the impugned words ‘mean nothing’:  it was the Fourniers he was going after for having provided a forum for this speech to be uttered.

So, RS continued, he was surprised that in his closing arguments, Mr. Burnet had promoted Roger Smith to an intelligent man, a deep thinker … and his writing was promoted to ‘well-composed prose’!

It was at this point that Roger Smith earned one of Madam Justice’s impish smiles and her cheeks even flushed a bright pink, as I suspect she was working hard to stifle a fit of giggles…apparently, this ‘promotion’ had not gone unnoticed by her!

Working on his momentum, RS continued building his defense, recalling the plaintiff’s words (which Dr. Baglow regretted and apologized to ‘our agricultural workers’ for having used) ‘yokels with pitchforks’ and re-classified Omar Khadr and his ilk of terrorists (the subjects that evoked the impugned description of Dr. Dawg from Peter O’Donnel) as ‘super-yokels with rifles’.

And, a substantial number of Canadians (59%, if I understand it correctly) do hold the belief that lending moral support to Omar Khadr is indeed ‘giving moral support to the enemy’…it would, in very real terms, enhance their geopolitical struggle on the other side of the world if their members were receiving moral support from some people over here, undermining our political will to continue in the armed struggle.

RS asserted that leftists often make common cause with terrorists in their regional struggle.  (Indeed, I would have taken this further, pointing out that many leftists believe that their utopian end justifies any means and that supporting (directly or indirectly) the enemies of our Western society, based on civil liberties, will bring our civilization down faster, which will help them build their tyrannical dystopia that much faster.)

The judge interrupted RS at this point, saying he need not belabour this:  she understands that he means that ‘support’ is more than just money or direct fighting…

During this bit, Dr. Baglow was leaning back from the table, his long legs elegantly crossed in front him in a classical ‘power pose’ – but he was very fastidiously studying his manicure.

Mr. Burnet was using the index finger of his left hand to tap his ear, listening carefully to every word and undoubtedly preparing for his rebuttal at the end of the day.

Indeed, RS continued:  support can be passive, like supporting ‘carbon taxes’…I suppose the climatologist in him cannot be suppressed! (By the way, according to the brief discussions we had during breaks, our scientific conclusion on ‘Global Warning’ are pretty similar.)

His essay (within which the impugned words were contained) covered a number of topics – from Steven Harper to long-form census (something that was VERY HOTLY debated in my own family:  one of those instances where my brilliant economist father-in-law, who had been a special economic adviser to 4 different Liberal Prime Ministers – two as PM’s, two while Ministers of the Crown who later went on to seize ‘the brass ring’, well, he and I battled long and loud over the souls of the next generation of our family over this issue! I think it was the next generation of our family that won:  they were forced to consider the issue from all possible angles and reach a conclusion of their own (not that they’d tell us what that is)!!!  Which, really, is the point…  Though my hubby and my mother-in-law tried throwing things at us (figuratively!) to change the topic….it seems not everyone appreciates a heated, no-holds-barred political discussion at the dinner table!  Which reminds me – I must get something awesome prepared for the next family holiday….) Re-focusing!

The essay covered things as diverse as the ‘beer and popcorn’ fiasco and lamented the hypocrisy of calling conservatives ‘yokels with pitchforks’.  RS admitted freely that it was a poorly written essay, and that it rambled a lot and would not have won any essay contests!  Indeed, it was so poorly written that the thread was virtually unread…until, that is, this whole thing erupted!  Then Streisand effect took over….once Dr. Dawg and MsMew sank their teeth into it (my words, not his).

OK – I must admit to you, my dear reader, that I have mangled both the wording and the timing of the various arguments.  I am working both from memory and my notes – and when I see something touched on, I keep writing – spilling the whole scoop to you, even when it ought to have just been foreshadowing…then, I read on and find the full argument I described 300 words ago only happened now.  Please, forgive me my sloppy reporting – I just wish someone better at it than I would have been in the courtroom to present another accounting of the events.

I would be remiss if I did not mention that throughout the trial, different people did drop in for a bit here and there.  Today, for example, Mr. Frankel’s sister-in-law, who is a law student, dropped by the courtroom to watch the closing arguments (and got to have lunch with Mr. Frankel to boot!).

He-who-must-not-be-named (on pain of legal action)  also dropped in every now and then, though not today.

And Canadian Cynic, known in the blogosphere for his knowledge of Linux (good) and for hurling misogynistic slurs at conservative women (sad, so very sad) on the internet (at least, that is what a quick Google search suggested), also popped in a few times:  I even saw him chatting with Dr. Baglow in the hallway, but no matter how hard I tried to establish eye contact, I failed.

On this last day of this case, there was also a youngish man with a mop of blond hair, a gray tweed jacket, light open-necked shirt with a subtle stripe and blue jeans.  I approached him during the lunch break and sked if he were a reporter.

“Sort of” he smiled as he slid over a copy of Frank magazine.  “I’m with them!”  I saw him later chatting with Canadian Cynic.  Funny thing is – Frank magazine’s name did actually pop up in the trial earlier, as an example of how different print media have differing ‘standards’ for ‘discourse’…as in, one would not expect as colourful a language in, say, CTV or CBC or ‘Globe and Mail’ as one would from ‘Frank magazine’…  And demonstrating that different segments, even wihin the same ‘print media’ would have different levels of discourse and expectations of the way language is used is at the very heart of this court case: the plaintiff asserts that once published, even to one person, the ‘language’ must be ‘standardized’ and it really is of no relevance whether this is a scientific treatise or a tabloid or a shock-jock-thingie (WIC radio case)….while the defense is claiming that in different platforms, the participants are performing for different audiences and that the expectations and understandings of the particular audience of their message board is of paramount importance because it is the perceptions of that segment of the citizenry who will be exposed to the impugned words, so, how they perceive will define their defamatory potential.

OK, I have been generalizing again – but I think that this is important because conveying the ‘flavour’ of the differing sides is so core to this very case….

Thank you, my dear reader, for having indulged me thus far.

I have attempted to capture both the substance of Mr. Smith’s defense as well as the atmosphere in the courtroom.  But, let me return to it, in my most imperfect manner.

Roger Smith explained to the judge that he truly and honestly held the belief that what Dr. Dawg had posted in his comments constituted giving aid and comfort to the terrorists and enemies of Canadian Armed forces in Afghanistan – and that while he held these beliefs about the words posted by Dr. Dawg, he did not harbour any personal malice against Dr. Baglow himself … but that the evidence bore out that, sadly, this was not true in reverse.

RS pointed out that while Dr. Baglow had reached out to Connie and Mark Fournier, asking them to settle out of court, he had not presented any such opportunity to Mr. Smith himself.  Not once had Dr. Baglow extended Roger Smith the courtesy of even contacting him…

Any reading of the discussion, as it evolved over the 7 or so days, will reveal deeply vitriolic comments made by Dr. Baglow – much more so than by RS.

‘Begly’ (the name that the defendant, at this point, thought was Dr. Dawg’s meat-space name – not even being aware of the proper name of the pesky paintiff who thinks himself so important that ‘everyone’ knows him, yet he should not have to meet the ‘higher bar’ for defamation set for ‘public figures’ – he’s the only ‘public figure’ who should have the ‘private person’ protections against legitimate political criticism), Zyklon B, pot-calling-the-kettle-black…you get the picture.

At this point, Mr. Smith became unsure if pointing out just how much of a chill a ‘guilty’ verdict would cast over the interwebitudes and just how cluttered the courts would become with defamation cases if the bar were to be set this low…  Being a principled person, he wanted it judged on the merits of this case – which he honestly thinks are insufficient for the finding of defamation.  But, this is where he was, in my never-humble-opinion, torn:  he wanted the court to be aware of the potential real-life implications of setting the bar this low, without appearing to ‘fear-monger’ or some such thing.

Madam Justice Polowin found this rather endearing:  she assured Mr. Smith that the so called ‘floodgates argument’ is not without merit and is, at times, successfully employed by real-life lawyers at court so he, as a self-represented citizen, ought not be ashamed of raising it.  And she smiled…

I know my words do not do justice to this moment at court but I’d like you, my dear reader, to know that this was a ‘Moment’ with a capital ‘M’…if you excuse the expression.

At this point, Roger Smith concluded his defense by saying that he cannot afford a fancy lawyer and that it would probably have been wise not to fight this battle, but, that he was not fighting it just on his own behalf but also on the behalf of the many Canadians who cherish their freedom of speech and exercise it, including on the internet, and that he felt that it was his moral obligation to our society to fight this battle!

In her right, Madam Justice Polowin seemed to understand this – and appreciate the kind of sacrifice it took Roger Smith to go on and fight for all of us!!!

She beamed a wonderful smile at him, and assured him that, for a self-rep, he had done an admirable job, that he was respectful of the court rules and, along with Connie, they had been some of the most professional self-reps she had ever had the pleasure to preside over.

 

Dr. Baglow vs. Freedom of Speech: September 23rd, 2014 – Barbara Kulaszka

This is a report on an ongoing trial:  the rest of this account can be found here (and at the top bar of this blog).

On September 22nd, the judge warned everyone in the courtroom that come hell or high water (and, I am paraphrasing here), this trial was going to finish tomorro – that is, today.  In order to make sure that this indeed comes about, she would recall everybody into Courtroom #20 of the Elgin Street Courthouse in Ottawa, Ontario, at 9am instead of the usual 10am – adding a one-hour ‘buffer’ to their time.

Aware of this, I arrived at the Courthouse nice and early – about 25 minutes after 8.  I strolled slowly through the parking garage, stopping to chat with one of the attendants whom I got to know well enough to say ‘hi’ to over the duration of these proceedings.  Then I had a tea and went to the ladies room before – with plenty of time left – strolling up to the 2nd floor and to the appointed courtroom.

Surprisingly, I did not see any of the actors in our little drama – and I began to get an uneasy feeling.  Did I get the time wrong?

I checked my notes and the wall clock and, sure enough, I still had 12 minutes before the proceedings started.

Ah – there was a paper sticky-taped onto the door – perhaps the press finally figured out the importance of this case to their own ability to report the news and enough of the showed up to have to move things to a larger courtroom!!!!

YES!!!

No…

Here was some incoherent message about teenagers and dating….  But, the look at that sheet of paper gave me a glimpse through the double doors’ windows…and it looked like the trial was already ongoing!!!

Panic time!

Not wanting to make a lot of noise inside the courtroom upon my arrival, I took my notepads and scribble-tools (today I was using a blue Zebra pen, fine point – they write quite quietly and have a good feeling in the hand, heavy but not too  much so…)  OK, I got my implements to hand and intramurated velocitously. (Yes, I am a huge fan of Black Adder – and if has, at times, affected my vocabulary….though, the character I most closely identify with is Baldrick.)

OK – in I sneak and sit down as quietly as possible.

Everybody is in and things are in full swing!

Barbara Kulaszka is standing up and speaking.

To her left, Connie Fournier sits calmly, wearing a dark purple pantsuit and a cream blouse, which I will later notice has a delicate black embroidery and is accented by a single strand of knotted pearls, long enough to reach beneath the blouse’s collar.  The overall look is pleasing, but, from behind, the bob in which her hair is cut is just the wrong length, making her neck appear shorter than in had in her previous outfits.  However, this optical illusion is dispelled when Connie glances back and gives me a warm smile.

To the right of Ms. Kulaszka sits Roger Smith, aka Peter O’Donnel, in his blue blazer and another pair of tan slacks.  His shirt will later be revealed to be almost a twin of his earlier one – black and charcoal stripes, but instead of a blue pinstripe, this one has a gray one.

Next is Mr. Steven Frankel, the brilliant young lawyer representing the CCLA.

To his right, Mr. Burnet, the Plaintiff’s lawyer, had his gaze firmly fixed on the judge and was listening intently to Ms. Kulaszka’s every word.  He had better, too – at the end of the day, he’d have a chance for a brief rebuttal to all the defendants’ closing arguments, so listening intently was very critical.

On the far right, as usual, was Dr. Baglow…I bet he does not hear that phrase very often!!!  Sitting far back from the table, his legs elegantly crossed in front of him, he had a calm and almost serene demeanour.  In his signature black suit and, as he once wrote, ‘the most comfortable walking boots on Earth’, I glimpsed a navy cuff of a shirt, if I am not mistaken…though, I must admit, I was so busy trying to catch up with what was being said that I did not take the time to note this down.  My apologies.

Later, during a break, Dr. Baglow helped me out:  he said he noticed I was wondering about the pin in his lapel.  It was indeed some sort of an abstract maple leaf:  a pin denoting 30 years in the Public Service. During another break, he let me know that the reason why he only wore his gun-metal-rimmed glasses at some times was because they were reading glasses and he only needed them at some times.

This made me a little envious:  I also have glasses, but mine (purple-rimmed) are progressive trifocals….yet, I still vacillate between wearing them or not.  When I wear them, I can actually see what is going on:  the major things, like people’s expressions and demeanour (I may not be able to decipher it, but I can at least describe it) – and the minor things, like, say, what I am writing down.  However, I cannot shake the feeling that, when I am not wearing my glasses, I get a much better feel for everything….that I can better absorb the atmosphere and emotions and all that.  So, I am constantly putting my glasses on, taking them off, putting them on, taking them off….sitting on them….sorry, I am rambling….

 As I started taking notes, Barbara Kulaszka (BK) was just speaking about Dr. Baglow having been at the forefront of the Omar Khadr re-patriation movement.

If you read my blog regularly, my dear reader, you will know my views on the huge miscarriage of justice that is the Omar Khadr case.  Perhaps it is my Aspieness, but, I am a big one for the adherence to the rule of law.  Yes – sure, I hate some laws and believe that we MUST change them – but, until such a time that we DO change them, we are obligated to follow them.

And, according to the Geneva Convention, there was only one legal manner to deal with Omar Khadr:  two bullets to the back of the head.

Anything less is a failure to adhere to the International Law and endangers civilian populations at the hands on non-uniformed combatants.  The Americans ought to be prosecuted for War Crimes for having permitted Omar Khadr to live and even rendering him medical aid!!!  Such a travesty!

At an earlier time, I actually had a conversation with Dr. Baglow about Omar Khadr and I mentioned that the two of us would probably agree that, in his case, the International Laws were not followed.  Indeed, I raised the subject specifically because I expected him to elaborate, so that I would have the opportunity to point out just how deeply misguided – if not downright evil for endangering civilian populations everywhere – his position on Khadr was.

Unfortunately, Dr. Baglow just sighed deeply and looked so very, very sad that I did not have the heart to continue the conversation…and thus did not have an opportunity to enlighten him on the error of his thinking.

 OK – back to the important stuff!!!

BK was explaining how Dr. Baglow was at the forefront of calling for the repatriation of the War Criminal Omar Khadr.

Next, she defined what the word ‘supporter’ means:  one who supports.

For example, a ‘supporter’ of the Maple Leafs’ is NOT somebody who plays hockey with them, who is a member of the team.  Rather, it may be somebody who buys their merchandise or watches their games or just says things that are nice about them.  Even, perhaps, just expresses sympathy with them when they are loosing…

Similarly, saying somebody is a ‘Taliban supporter’ – it does not mean he is one of the Taliban!

Rather, it means somebody who may say things that express empathy with the Taliban….

OK – I am having a hard time wording the next bit:  most likely because BK is much nicer a person than I am, much kinder and gentler…and I am ‘choking’ on typing the words she actually said, as they show way more of an empathy for Omar Khard than I am deeply convinced he deserves…  But, she was speaking for the defendants, not me, so I must choke down my opinion and report to you, my dear reader, her words…

BK said that ‘expressing support for ‘the human rights’ (as if a non-uniformed combatant had any, under international law) of Omar Khadr’ could be interpreted as expressing empathy for the Taliban’ – and, by definition, that would be included in ‘being a supporter of the Taliban’.

Indeed, argued BK, the plaintiff himself used the very same logic when he said that the CCLA supported father Boissoin (a Catholic priest who was given a lifetime ban by a Human RIights Tribunal on speaking about the Catholic Church’s position of homosexuality), saying that the CCLA ‘gave aid and comfort to hate speecher’ and that they were ‘hate-speech facilitators’…that the CCLA ‘stands with haters’ and ‘aids in homophobia’.

BK asserted that ‘giving aid and comfort’ is, indeed, the very definition of ‘supporter’!

At this point, Madame Justice (her black judicial robe, white collar and red shash accentuated only by perl stud earrings and simple, elegant rings on the ring finger of each hand) nodded her head in assent and reasoned agreement.

In addition, BK carried her momentum forward, this was the medium of a Message Board – not a scholarly dissertation…which, through medium alone, classified this as a ‘comment’…

The Judge wondered about this being ‘fair comment’ if fully 41% of Canadians shared Dr. Baglow’s view.  If I were the lawyer, I would have quickly pointed out that the fact that this automatically meant that 59% of Canadian did NOT share Dr. Baglows view – making this a very fair comment indeed.  But, I am not a lawyer, nor do I play one on the internet…

Instead BK took a much better tack, pointing not to peasant logic, like I would have, but to actual law:  she presumed Mr. Frankel would speak to this later (to which he nodded – earning one of Madame Justices’ broad smiles), but, the legal test (as per the WIC radio case ) was whether ‘anyone can honestly hold that opinion’.  Not the majority, not 41%, but ‘anyone’.  (And, I am heavily paraphrasing – I am simply not able to take notes fast enough!  You, my dear reader, ought to fire me and get a faster writer to report on this!!!)

As in, of ‘anyone’ can honestly hold and express this belief – that is the test.

This, the Judge agreed with.

Which is where things took a turn into territory rather unknown to your reporter – but one that seemed very familiar to both madame Justice Polowin and Ms. Kulaszka:  the Vietnam War issue…  They had a fun back-and-forth about someone named ‘Jane Fonda’ and a nickname of ‘Hanoi Jane’ – but, not knowing the context, this did not make much sense to me.  But, the two of the seemed happy, joking, agreeing – on the same ‘note’, if you get my drift.  ‘Ancient argument’, ‘based on fact’ – these were the terms ‘flying about’.

In his turn, Dr. Bagglow seemed so bored, he was in danger of falling asleep…

Which is where the topic of ‘Taliban Jack’ got re-introduced (it had been discussed ‘many’ times before to illustrate how hyperbole and nicknames and memes work).

From here, the proceedings took a turn into legaleese:  another field I am blissfully ignorant of.  All I can do is report the words…and badly, at that, as I am not fast enough to get them all down…my deepest apologies, my dear reader!

Madame Justice Polowin wanted to know how does this get ‘around’ the ‘Grant’ test.

BK disagreed – the ‘test’ here was not ‘Grant’ but ‘WIC‘.  People listening to a ‘shock jock’ would know a well-followed controversy, the facts of the case were known to the audience in that case as in this one.  Roger Smith was talking about ‘Dr. Dawg’ – a pseudonym.

If people did not know who ‘Dr. Dawg’ was – then, saying something about a ‘pseudonym’ was clearly not defamatory.

If people DID know who ‘Dr. Dawg’ was – then they would have been following the controversy and been aware of the background facts…and thus would have been able to understand the sense in which the words were uttered – making them, yet again, not defamatory!!!

BAZINGA!!!

What needs to be weighed here is the state of mind of Dr. Baglow during this whole exchange:  from the very beginning, his aim was to find a pretext to sue her client.

The judge did not, to my untrained eye/ear, appear particularly empathetic to this line of reasoning…as expressed by the succinct: “So?!!?”

Which I took to imply that the plaintiff’s state of mind had no relevance on whether or not he was defamed…by the defendants…

BK handled this rather well.

As Dr. Baglow sighed deeply and examined his manicured hands, BK explained tat re-posting the disputed words AGAIN using his sock-puppet persona ‘MsMew’ ensured that even if the original words were taken down by Roger Smith, they would remain on the site – along with the malicious identification of Dr. Dawg as Dr. Baglow.  This demonstrated malice – but not on the part of her client, but on the part of Dr. Baglow…

Indeed, BK continued, given the definition of the word ‘supporter’, her client did not think the impugned words were ‘defamatory’ in any way, shape or form (yes, I am paraphrasing).

Dr. Baglow, on the other hand, had demonstrated malice with his ‘sock-puppetry’ – and, as Dr. Dawg and MsMew, it was he who was bullying her client.

As for ‘malice’, the ‘WIC’ case demonstrated that even though the ‘shock-jock’ ‘hated’ Ms. Simpson’, that was irrelevant in the legal ‘finding of malice’:  rather, paragraphs 67 to 85 (of the ruling in the WIC case, I can only presume) show that since the dominant motive was that the ‘shock jock’ ‘believed’ what he said, the fact that he also hated her did not matter.

OK – I freely admit, there was a bit here that went 100% ‘over my head’:  something about ‘Ross vs. New Bruns’ or something somewhat similar….predominant motive, tab 12 paragraph 106…I have no clue what this was about…

Yet, this concluded this bit and, in the next installment, I shall report on Roger Smith’s closing arguments!

Thank you for reading this far!!!

 

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