‘Journalists’ vs ‘Bloggers’

August 28, 2011 — xanthippa

Interesting….

The Quebec Minister for Culture is not the only one who seems to think that ‘bloggers’ ought not be granted the same treatment as ‘journalists’.   This presumption that ‘journalists’ are ‘professionals’ while ‘bloggers’ are ‘unwashed scum’, that ‘journalists’ ought to be granted privileges while ‘bloggers’ ought not has found fertile ground among our ‘elites’.

I came up against this personally, just last month.

At the Ontario Court of Justice – of all places!

Which is rather ironic, because it was the Ontario Courts who (among other courts) ruled that everything bloggers post on the internet is indeed ‘an act of publishing’ and therefore subject to all the laws, rules and standards that apply to any print publication.

Actually, if one thinks about it, this ruling places ‘bloggers’ on par with ‘publishers’ – one rung above mere ‘journalists’, who are, after all,  just employees of ‘publishers’…but let’s not be elitist here!  ;0)

{Let’s also not pretend that ‘blogging’ is actually ‘anonymous’:  the vast majority of bloggers do not take elaborate precautions to hide their identity – and their ISPs will reveal their names the moment it is clear the blogger broke the law.  It’s right in the ISP’s contract…  So, blogging ‘anonymously’ is simply a means of filtering out the frivolous bullying of bloggers too small or not connected enough so that they are pretty much defenseless.  If anyone has a legitimate case and goes through the legwork, the real-life identity of the blogger is accessible to them.  Plus, most bloggers are better known by (and their reputation is thus built on) their online persona – our ‘nom-de-plume’ – than by our mundane name.}

So, what is it that I am actually talking about?

Last month, just one week after they came to Ottawa for the Baglow case, Connie and Mark Fournier were back in Ottawa in court:  this time, they were applying for leave to appeal the ‘Blishen’ ruling in the Warman case. Their case was last on the docket and we had waited around all day only to be told that they would not get to us.  (The case itself ended up being heard last week, and the result was not a good one for the Fourniers.)

While waiting in the courtroom for the Fourniers’ turn to come, I kept writing in my notebook. It is a bit of a habit – it keeps me focused.  And while I didn’t actually take notes on the cases that were going on, I did note the demeanour of Warman’s team of lawyers (headed by the charismatic Mr. Katz) and doodled to pass time.  The judge took pity on those of us waiting and told us that they’ll not get to the Warman case until way after lunch, so we all filed out of the courtroom, intent on finding sustenance.  As in, food.

The bailiff followed us out, caught up with me and informed me that I was not permitted to take notes in the courtroom.  We all stopped, surprised at this:  I had taken copious notes at previous hearings – in several different cases, without ever any complaints against me.  And, I saw journalists take notes at some hearings, too…

We (the Fourniers,  Fred Litvin of the Free Thinking Film Society and of GayandRight, a few other supporters of the Fourniers and I) peppered the bailiff with questions.  Many questions…

He was very polite and exceedingly civil – and I do not doubt that he is a nice man and a truly good human being.  He was simply informing us of the rules, as he – as an officer of the court – understood them.  The upshot of what he said was:

  • the plaintiff/defendant, their lawyer and their lawyer’s aides may take notes in court, as they are ‘participants’
  • no spectators who are simple ‘members of the public’ may take notes in the courtroom, because they might not understand things properly or such and get a false impression of what was happening (I could not help but wonder why a person would need to be taking notes to get a false impression of what is going on – why not ban us unwashed masses from the courts altogether if we are too stupid to follow the proceedings?)
  • ‘journalists’ may also take notes, because they are ‘professionals’ – they are trained and presumably licensed (or will be, in Quebec), so it is OK…
  • ‘bloggers’ don’t count as ‘journalists’ – they are simple ‘members of the public’

When I pointed out that the courts themselves decided to hold us, bloggers, to the same standards as journalists were – so why should we have fewer rights to go with the same obligations – he shrugged, smiled, suggested that I should ‘get a life’ and said that if we really wanted to know more about the rules, we should check with ‘Court Services’….

So, after lunch, armed with a notebook and a pen and a healthy dose of righteous indignation, Fred Litvin (who graciously agreed to come with me for help and support) and I set out to seek the truth behind this double standard.

In the end, we were told that there really was no such rule, that members of the public – even lowly bloggers – were free to take all the notes we wanted to at any hearing in which a judge did not specifically forbid it … and – the bailiff had gone out of his way to find this out independently and then looked up not just me and Fred to apologize for having unintentionally misled us, but also each of the other people who had overheard him give out erroneous information.  I give him full credit for trying to rectify his mistake.

But – that is not my main point.  Well, not one of my two main points (I seldom have just one).

The fact remains that, based on instructions from a number of different judges, on a number of different occasions, the bailiff had been directed to deny anyone but ‘the participants’ in the cases and ‘certified journalists’ the right to take notes in their courtroom. So many judges had done this, in fact, that he was convinced this was the law!

WHO ARE THESE JUDGES?!?!?

And, once they had demonstrated this level of elitism (and contempt for us, regular citizens), why do WE – the citizens they would prefer to gag – permit them to remain judges over us?!?!?

Seriously – if these judges think the general public is too stupid to follow what they are  saying to us, how can they pass impartial judgment on us?  They have already formed a highly negative view of us – before we even entered their courtroom!

These are the people we are to entrust ourselves to?

REALLY?

…and the other point…

It took us a bit to find the proper wicket/window at the courthouse for ‘Court Services’ – the few inquiries we made sent us off in the wrong directions.  Our bad.  But…

Wherever we went – and wherever we identified ourselves as ‘bloogers looking for an answer’ – we elicited a very unusual response.

Well – unusual in the sense that I have not experienced this type of response from bureaucrats in the past.

Fast.

Courteous beyond belief.

And,  before we could begin to explain the particulars of our question, their supervisor or their manager, or their supervisor’s manager (or was that their manager’s supervisor?) was called in to deal with us.  Immediately!

And the boss – and bosses’ boss – came right away!!!

And they all looked – highly anxious…

….sort of like I imagine that government officials looked when facing ‘investigative reporters’ at the time of ‘Watergate’…

Perhaps bloggers have filled the void left behind when most newsmen and newswomen abandoned ‘investigative reporting’ in favour of quoting press releases; when they joined the cultural elites as ‘journalists’ whose job is not to ‘report facts’ but to ‘present stories’ in a way that helps the social engineering elites control the unwashed masses….you know – us.

No wonder the Quebec Minister of Culture – and every other social engineering elitist [insert insults of your choice here] is attempting to diminish the role of ‘bloggers’!

UPDATE:  BCF has more details on the Quebec Culture Minister’s plans.

Posted in corruption, freedoms. Tags: , , , , , , . 1 Comment »

The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 2)

July 22, 2011 — xanthippa

See here for ‘Part 1’, which includes the background, the facts of the case (as agreed upon by both sides in the case) and the legal point of this hearing.

July 21st, 2011 was a blisteingly hot day in Canada’s capital.  The temperature outside climbed up to 36 degrees Celsius and the humidity stood at close to 100%.

Just before ten in the morning, when I arrived at the corridor outside of Coutroom 36, where the hearing was to be held, the air conditioning at the elegant Elgin St. courthouse was already having trouble limping along and the temperature indoors was significantly above room temperature (defined at 21 degrees Celsius) and bordering on uncomfortable.

When I arrived, many people were just filing out of the courtroom:  another case was being heard first, and this would take intil at least 11:30… when the court would take its first break.  This dampened the spirits of the little group of people who, like I, had come to show support for the Fourniers and ‘Peter O’Donnel’ from FreeDominion, the defendants in a defamation suit brought against them by ‘Dr. Dawg’:  many could not stay the full day…

Among the friendly faces, I recognized Fred Litvin of the Free Thinking Film Society, who was one of those who could not stay the full day. Andrew Phillips, leader of the Libertarian Party of Canada, as well as longtime freedom of speech supporters Roland and Fran (plus your never-humble correspondent) stayed for the duration of the hearing.  As far as I could tell, nobody stayed to support Mr. Baglow.

I was curious to see John Baglow – having never laid eyes on him before.  He wore a crisp blue shirt (curiously evocative of ‘the working class’ and of ‘cowboys’ at the same time) with aviator-style sun-glasses in place of a tie, dark pants and cute black cowboy boots with the most adorable little metal trimmings.  In his hands, he held a summer-weight (possibly straw), white, fedora-type hat.  His whitish-gray mustache matched his hair and I could read nothing from the neutral expression on his face.  John Baglow, the man, remained a closed book to me.

John Baglow was represented by Peter Francis Burnett – a lawyer who struck me as competent and who has a very pleasant, confident voice.

The Fourniers were represented by Barbara Kulaszka, while ‘Peter O’Donnel’ (who had flown in for this hearing from BC) represented himself.  The Fourniers are being sued for hosting the forum on which the insult was published, ‘Peter O’Donnel’ for having posted the insult.

The case was presided over by Mr. Justice Annis, J. (as the sheet outside the courtroom announced).  The judge struck me as sharp, very sharp, and quite well versed in the internet, the blogosphere and the issues (and lingo) surrounding it.  In other words, a judge who was knowledgable of the context and its complexities – something that is always a good thing, but which unfortunately does not always occur.  After all, judges cannot be experts in everything…

I have exactly zero legal training – therefore, my observations must be unedrtood as those of a layman and nothing more.  I am working from an imperfect understanding, and the few notes I took during the hearing.  I will do my best to be as accurate and to present the case as correctly as possible with my limited understanding, but I am bound to make mistakes.  If you can correct me, please, post a comment doing so!

Also, rather than presenting the case sequentially, I will address the individual ‘major points’ raised.  It seems to me this way, it will be easier to follow the various threads of reasoning.

Ms. Kulaszka was the first person to address the court, as it was she who had filed the ‘Motion for Summary Judgment’ which this hearing was for.  She was arguing that as both sides had submitted affidavitsin which ‘their side’ of the story was fully explained, and that since all the basic facts of the case are aggreed on by all the parties involved, all the facts relevant to the case are before the judge:  the judge can, therefore, make a summary judgment based on this material and there is no need for a full-blown, costly trial which would drag on for years.

She spent a long time explaining the context of the ‘debate’ and the various insults traded, and so on.  She described the trail – a debate about the ‘Omar Khadr’ affair which started on the Jay Currie blog (no longer up), moved from there to ‘Dr. Dawg’s Blog’ (where it degenerated to insults, back and forth), and from where it moved on to FreeDominion, a discussion forum.  None of these facts were in dispute, by any of the parties.

As I understand it, if the facts in a case are all clear and no further evidence needs to be presented, it can be ruled on by the judge directly.  If there are points which need closer examination, then the judge will rule that the longer, costlier process of a full trial will take place.  This is what the defendants had requested and what the plaintif was fighting against:  which is what this hearing was about.

Ms. Kulaszka cited ‘the McVeigh case‘ (see my list of some legal precedents on why I think it was relevant, and which may have taken place in BC, but under similar rules of Civil Law procedures to Ontario’s) as an example where a judge had all the facts in place and could rule on the whole case based on the evidence already submitted.

Mr. Burnett implied that it was silly of her to cite the McVeigh case, because there, the defendants lost!

Ms. Kulaszka pointed out that she raised the case only as a precedent in that was similar and demonstrated that the ‘mini-trial’ format of ‘Summary Judgment’ was applicable in this case.

The next major point of disagreement between the two sides, as I understand it, was a rather salient point over where a particular line lies…  Mr. Burnett argued that IF the words that were used against his client COULD be construed as defamatory, then a full-fledged trial must take place to decide if they were indeed defamatory in this particular instant.  Ms. Kulaszka argued that a full trial should only be held IF there are FACTS that are disputed:  if all parties agree to the FACTS, then the judge has all he needs to make the ruling.

The judge asked a lot of questions of both sides on each of the points raised.  He understood perfectly the context – he seemed to either be someone who follows the blogosphere or had done an excellent job educating himself on it in depth, including the ‘ascerbic’ debates in comment sections that can degenerate into name-calling matches.  He characterized the case as such an instance, and that he simply has to decide whether one of the parties had ‘crossed the line’ during the name-calling…

In any case of defamation, the plaintiff must demonstrate that he/she had indeed had their reputation diminished as a result of the words of the defendants.  Here, each side cited a different case as a precedent.

The defence cited the ‘WIC Radio case’ – a shock jock radio guy had, during a ‘live debate’ with an activist, said something that she took offense to and she sued for defamation.  The Supreme Court of Canada ruled that any reasonable person would have understood this to be ‘name calling’ and not as ‘a statement of fact’ – so the activist’s reputation had not been damaged.  Ms. Kulaszka drew the parallel to this situation:  it was a ‘debate’ which degenerated to ‘name-calling’ and was perfectly understood as such by all the readers of the blog/forum.  No harm – no foul!

Mr. Burnett raised a different case – Black v. Breeden.  In this case, Conrad Black sued a number of newspapers for defaming him.  The ruling (as I understand it) was that since the words were printed in ‘The Globe And Mail’ newspaper, the test for whether they are defamatory was whether an average reader of ‘The Globe And Mail’ newspaper would take them to be so.  As in, believe them/take them as ‘fact’ –  and thus ‘defame’ Mr. Black.

Mr. Burnett’s argument was that since the ruling took the opinion of the ‘average reader of The Globe And Mail’ to be the ‘test’ for defamation in the ‘Black case’, that was also the standard in this case.  As in, the opinion of the ‘average reader of The Globe And Mail’…

Ms. Kulaszka argued that the ruling was that ‘the opinion of the average person reading the medium in which the words were delivered’ was the ‘precedent’ set by the ‘Black’ case:  since this was delivered in the Canadian political blogosphere, it was the opinion of the average Canadian political blogosphere reader which was pertinent – not that of the ‘average reader ofThe Globe And Mail’.

The ‘Vigna v. Levant’ case was also raised as a potential precedent.  However, I am confused about who was the first to raise it.  It was certainly referenced by the judge quite a bit when he was asking questions.  The judge had also asked both parties to email him by Monday any other ‘interesting blogger-cases’ which he could review for precedents.

I see that the word count is going dangerously up…so I will be more brief.  Of course, all the usual ‘defamation’ bits were touched on and argued, that posting on the internet ‘contitutes publishing’, was there malice in the insult, etc. – and were argued well on both sides.  However, I would be remiss if I were not to cite some details which set this particular case apart from others and make it very unique indeed.

These two very specific details concern the actions of the plaintiff – and how the defendants interpreted them.

Apparently, the defendant, ‘Peter O’Donnel’ had not done anything to link the persona of ‘Dr. Dawg’ to the real-life person, John Baglow. As such, Mr. O’Donnel told the judge that his insult was directed at the ‘online persona’ of a ‘typical left-wing blogger’ – not the real-life person of John Baglow, whom he did not know or even conceive of as an individual.

It was Mr Baglow himself who had created a ‘sock-puppet persona’ called ‘Miss Miew’ (sp?), who purpoted to support ‘Dr. Dawg’s’ arguments – and who, as ‘Miss Miew’ had ‘outed’ him by identifying ‘Dr. Dawg’ as ‘John Baglow’.

1.

If I understand this correctly, ‘Peter O’Donnel’s’ defence is that the insult was not defamatory, but, even if it were, it was directed at the anonymous persona of ‘Dr. Dawg’ and that it was John Balglow’s own action in linking his real-life name to the persona in that discussion forum – the defendant’s own action – which could potentially have been harmful to his reputation IF the insult was indeed defamatory.

The judge asked for clarification on this point several times:  and yes, even the plaintiff agreed that it was his action which linked his name to his online persona in the forum.

2.

The Fournies are being sued for running the forum – and thus for being the ones who had publishe the ‘defamatory words’.  However, they were not the only ones!

The plaintiff himself had also published these very same words, in the comment section of his blog – and left them up for many, many months.

The Fourniers claim that since the defendant had himself published these words, about himself, on his own site, they had no credible reason to believe that the defendant had considered the words defamatory.

Mr. Baglow’s lawyer, Mr. Burnett, admitted that this was so, but proposed that the plaintiff’s own actions have nothing to do with the defendant’s culpability and must not be considered in any other context than, perhaps, in the amount of damages to be awarded.

So, there it stands.

If I may indulge in stating my own, never-humble opinion of all this….

  • The ‘debate’ started on Jay Currie’s blog – then moved to ‘Dr. Dawg’s’, where it generated substantial traffic.  89 comments on one post alone!
  • Then, ‘Peter O’Donnel’ created a discussion about it on the FreeDominion site – and the ‘debate’ moved there.  Taking the traffic with it.
  • John Baglow tried everything he could to bring the ‘debate’ back to his own site – even re-publishing the most inflammatory bits from the FreeDominion ‘debate’ back on his own site.
  • When this did not work, he complained to Connie Fournier and demanded that she’remove’ the offensive words and, effectively, stop the ‘debate’ on the FreeDominion site…so that the ‘debate’ – and the accompanying traffic – would return to his site.
  • When she refused, he decided to punish her by suing everyone involved for defamation.

… at least, that is how it seems from my point of view!

Posted in freedoms. Tags: , , . 20 Comments »

The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 1)

July 22, 2011 — xanthippa

I have not written much lately – but some events are so important that they simply must be written about.

Yesterday, 21st of July, 2011, I went down to the fancy courthouse on Elgin St, Ottawa, to observe the ‘Summary Motion’ hearing in the civil court case where John Baglow, aka ‘Dr. Dawg’, is suing Connie and Mark Fournier of the Free Dominion discussion forum and a member of the forum who posts under the name ‘Peter O’Donnel’.

In the past, whenever I went to one or another such hearing, I would take copious notes and then write them up – along with my impressions and never-humble-opinions into a post.  Now, thanks to my clutziness, neither one of my arms is fully functional… so my notes are nowhere near as exhaustive and my account will necessarily be shorter; less of a record of what had happened and more of my impressions and opinions of what had happened.  My apologies – but that is the best I can deliver right now.

1.  Background

John Baglow blogs as ‘Dr. Dawg’ (according to his lawyer, ‘he likes dogs’) – a somewhat typical ‘left-winger’ blogger (if there is such a thing) in the Canadian political blogosphere.  From the words of his lawyer, we learned that he is a contractor who usually works on contracts for public sector unions and the Conference Board of Canada ( if I am deciphering my notes correctly).

‘Peter O’Donnel’ is a contributor to (and a moderator on) Free Dominion, one of (if not THE) oldest political opinion forum in Canada, focusing mostly on ‘little c’ conservative and libertarian issues. Free Dominion is run by Connie and Mark Fournier.

In the backdrop of ‘the Omar Khadr‘ affair, much discussion was happening in much of Canada about these happenings.  On the one hand, some Canadians thought that Omar Khadr was a child caught in a war and an unfortunate victim of circumstances.  On the other hand, many people saw him as a young man who took up arms on the side of the Taliban, who lay in wait until a US medic came to tend to a wounded person and then cowardly murdered him – and who therefore deserves to be punished in accordance with the law.

The crux of ‘the Khadr affair’ lies in Omar Khadr’s age at the time he committed the act of terrorism (and, a court of law did find that he did indeed commit one):  under some laws, he was a ‘child’ while under other laws he was an adult.  A polarizing issue, to say the least.  But this is not about Omar Khadr – it is about a discussion regarding him, during which tempers flew high and debates degenerated into name-calling ‘online-brawls’.

2.  What both sides agree about (as I understand it – if I am in error, please, let me know and I’ll amend!)

Something posted on Jay Currie’s blog (a blog with a conservative perspective, but where people of many stripes of opinion tended to exchange opinions in the comment section – but which was no longer up at the time of this hearing) sparked a discussion about the Omar Khadr affair, with many participants, two of whom were ‘Dr. Dawg’ and “Peter O’Donnel’.

The exchanges got heated, to say the least.

This discussion got moved from Jay Currie’s blog to Dr. Dawg’s blog, where the heated exchanges continued among various posters including ‘Dr. Dawg’ and ‘Peter O’Donnel’.  It was said in court that at least one of these posts where the debated continued (in the comment sections) had 89 comments, of which 33 belonged to ‘Peter O’Donnel’.

‘Peter O’Donnel’ opened a discussion on this topic on the Free Dominion discussion forum, where the bulk of the debate then moved.

Both parties called each other names.  Nasty names.  ‘Peter O’Donnel’ stated the opinion (and I AM paraphrasing) that IF one supports Omar Khadr – who had indeed been convicted of terrorist activity on behalf of the Taliban – then one is ‘a vocal supported of the Taliban’.  (‘Dr. Dawg’ was ‘a supporter’ of Omar Khadr – one of the people who portrayed him as a victim.)

Mr. Baglow (‘Dr. Dawg’) then created a sock-puppet persona called ‘Miss Miew’ (sp?  I only heard it in court, so I may have mangled it – my apologies) who was posting in support of ‘Dr. Dawg’ and who ‘outed’ ‘Dr. Dawg’ as John Baglow by saying something to the effect of ‘Hey, this guy called Dr. Dawg a Taliban supporter – John Baglow should sue him for calling him that!’  (again, I was just listening in court and taking notes, so I am necessarily paraphrasing…)

Not satisfied with having publicly linked his own name to his online persona, John Baglow then proceeded to re-publish the exchange on his own blog. ( And, he left it up for many months.)

John Baglow contacted Connie Fournier and complained to her about the comment he had found offensive – on the Free Dominion site, that is, not from his own site.  He demanded an apology and that the comments be removed right away. Free Dominion did not apologize nor remove the comments.

Hence, the lawsuit for defamation.

3.  The ‘legal occasion’ (as I understand it)

All parties in the lawsuit had submitted affidavits in which each one of them explained ‘their side’ of the issue.

In Ontario (where this case is being heard), the Ontario Rules of Civil Procedure contain something called ‘Rule 20’ (see the ‘Some legal precedents…’ page at the top of my blog for more details) which, in a nutshell, is a

‘Rule allowing for summary judgment where there is no genuine issue for trial, and the proposed revisions that would allow for an issue to be settled by way of mini-trial.’

In a full-blown trial, there is testimony, cross-examination and ‘the full works’.  It is costly and can drag on for years.

This ‘mini-trial’ is an alternative which can be used when one of the parties concerns files a “Motion for Summary Judgment’.  A real, honest-to-goodness judge (not a moderator or a semi-judge) will listen to both parties and decide whether or not the ‘facts’ of the case are all in the submissions (so there would be no need for cross-examination and so on) and some other factors (which I am not so clear about) are satisfied.

If so and the case is pretty much ‘clear’ based on the materials which had already been submitted, then the judge has all that she/he requires to pass a judgment on the case.  (This is the ‘mini-trial’.)

If not and there are facts which are in dispute or which can only be clarified through a full trial, the judge will not render a ‘summary judgment’ on the case but will instead order a full trial to be held.

On June 21st, 2011, I attended this hearing of a Motion for Summary Judgment which had been filed by the defendants in this Baglow defamation case.

It was very interesting.

Continued in Part 2.

Posted in freedoms. Tags: , , . 4 Comments »

Free Dominion court date: July 21st, 2011

July 18, 2011 — xanthippa

If you happen to be in Ottawa on July 21st, 2011, consider swinging by the Court House on Elgin St.

Free Dominion is being sued by John Baglow of Dawg’s Blog.

If you can, come and show them your support!

Posted in freedoms. Tags: , . Leave a Comment »

He Who Must Not Be Named (on pain of litigation) is at it again…

April 27, 2011 — xanthippa

You-know-who is suing people again – because he finds them ‘annoying’!

That little silly bunny will just not let up!

With his skinhead-like haircut and fascist tactics, he really does look like the member of a Neo-Nazi organization (Stormfront) that he is.  Yet, watching him in person for any length of time, the comparison to Uriah Heep (just before the 2 minute mark) crowds itself into one’s mind unheeded…

I don’t know how he can live with himself, that little tyrant-wanna-be silly bunny!

Posted in freedoms, opression, society. Tags: , , , , . Leave a Comment »

‘Free Speech on Trial in Europe’

January 28, 2011 — xanthippa

This is a must-read article from Hudson New York by Soeren Kern.

It is impossible to paste a just little excerpt here that would be representative of the whole article, because the article itself is a long, sad and, frankly, frightening list of all the anti-free-speech trials that have been taking place in Europe lately.  I recommend just popping over and reading the list – no fluff there, just the facts.

‘Freedom of Religion’ is a wonderful thing – but, to be perfectly honest, I do not see how everything one needs FOR practicing one’s religion freely and unhindered – but without infringing on the rights of others – is not already covered by some of the other ‘core freedoms’:

  • Freedom of Speech
  • Freedom of Thought
  • Freedom of Association
  • Equality before the law

It seems to me that there is nothing contained within ‘freedom of religion’ which is not already an integral part of the other ones – so, it is, in a way, a redundancy to list ‘religion’ among the core freedoms as a separate item.

Not that we should not have ‘freedom of religion – rather, that it is already implied in the others and re-stating it can not in any way be beneficial.  Rather, whenever things are redundantly re-stated, people will tend to read into them things which were never intended.

As in, it leads to abuse.

As it has, with claims of ‘religious discrimination’ by people who are merely offended by the very existence of any criticism of their religion.

Not being able to criticize something – whatever that something may be – is dangerous.

Deadly, in fact.

Because it infringes on the CORE freedoms – especially the ones I listed above:  freedom of thought, freedom of speech, freedom of association and equality before the law.

Let’s just look at that last one:  equality before the law.

Because it is unlikely that all people will, all of a sudden, share the same beliefs and opinions.

If everyone is equal before the law, then they are all permitted to believe what they wish and speak it freely, whatever the other people may think of it.

However, if we interpret ‘freedom of religion’ to mean that saying things that are critical or disparaging of that religion – not the practitioners, mind you, but the religion itself – then we have created ‘blasphemy laws’ which put one set of beliefs above another’s criticism.

And that is NOT equality under law.

I know, I am repeating some very, very basic things. But, lately, it seems to me like more and more of us are forgetting the basics…

Like, what  ‘equality before the law’ actually means.

Unless we remember, it will be our undoing.

Posted in atheism, corruption, freedoms, opression, politics, religion, society. Tags: , , , , . 2 Comments »

Debbie Schlussel – 1, CAIR – 0

January 11, 2011 — xanthippa

The ‘Ham-asses’ at CAIR Action Network – that would be the Council on American-Islamic Relations – have taken up the hobby of SLAPP suits to silence their critics.

They probably did not realize the mistake they made when they picked on Debbie Schussel.

Following the first round in court, the score stands at Debbie Schlussel – 1, CAIR – 0.

Read the story in her own words.

Sounds like she was pumped full of adrenaline when she wrote it – a pleasant read.

H/T: BCF

Posted in freedoms, politics, religion. Tags: , , , , , , . 2 Comments »

Thomas Sowell says: read this

December 22, 2010 — xanthippa

Thomas Sowell is one of the smartest people on the nets.

Really.

And, he highly recommends ‘Justice, Denied’ by Quin Hillyer published by ‘The American Spectator’:

‘Under attorney general Eric Holder, the Obama Department of Justice (DOJ) is dangerously politicized, radically leftist, racialist, lawless, and at times corrupt. The good news is that it’s also often incompetent. This means the Holderites can bungle their leftist lawlessness so badly that even the most reticent of judges are obliged to smack them down.

The abuses by the Holderites are legion. They range from DOJ’s infamous abandonment of the already-won voter-intimidation case against several New Black Panthers to multi-faceted assaults on traditional standards of voting rights and obligations; from a growing list of lawsuits deliberately destructive of border security and citizenship laws to outrageously race-based bullying tactics; from efforts to undermine military discipline and state sovereignty on homosexual-related issues to the dangerous obsession with terrorists’ “rights” to the detriment of national security; and, finally, to the selection of judges openly contemptuous of the existing law-all while dedicated to a vision of judge-imposed “universal justice” based not on the text of American statutes but instead on the reigning cultural standards of coastal and international elites. While doing all this, the Holderites operate the least transparent DOJ in decades, treat congressmen and independent agencies with contempt, and claim breathtakingly spurious “privileges” against disclosure of public information.

This isn’t law enforcement and it isn’t justice, but instead is subversive of both.’

Posted in corruption, freedoms, opression, politics, society. Tags: , , , , , , , , , . 2 Comments »

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

December 21, 2010 — xanthippa

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…

 

 

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Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 3

December 9, 2010 — xanthippa

Disclaimer:  These are my observations, my opinions and I have no legal training at all.  So, take it for no more than it is!

Part 1 is here. Part 2 is here.

When I left the tale at the end of part 2, Mr Katz – Richard Warman’s lawyer – was making a presentation to Madam Justice Blishen that Mr. Warman’s request that Free Dominion hand over the IP addresses of the site’s members whom  Mr. Warman wishes to sue for defamation satisfies the 4 points set out by Justice Wilton-Siegel and, therefore, that FreeDominion should indeed hand over the info.

Context, Mr. Katz kept stressing, is essential.

He also expounded that this case is not about freedom of speech on the internet – it is only about defamatory statements made about his client!

Some of the defamatory statements were couched as ‘statements of opinion’.  And THIS is where Mr. Katz made one of several pronouncements which rather floored me.  This is probably because I am completely lacking in any law school stuff, so my mind must be insufficiently trained to ‘get’ it.

Please, judge for yourself!  (And, if you could explain it to me, I’d greatly appreciate it.)

Mr. Katz said that in order for something to be a ‘statement of opinion’, it must contain the information on the basis of which this opinion had been formed.

In other words, the statement:  “Lawyers are, in my opinion,  cute little bunnies.” would not, under Mr. Katz’s suggested definition, count as ‘statement of opinion’ because it does not say why I had arrived at this opinion!  By his definition, this is a ‘statement of fact’.

I sure hope I’m misunderstanding this, but this  sure is what I thought I heard – as I have written it down as such. (See – I’m supporting my opinion, just in case…)

Mr. Katz then went on for significant length to say that one of the things his client was called suggests ‘unnatural sex acts’.  I will, of course, not repeat the term itself because I do not wish to defame Mr. Warman, even indirectly!  Let it suffice that Mr. Katz explored at length the damage that could be done to one’s reputation by accusations of ‘unnatural sex acts’.  (Again,  I did not hear the word ‘unfounded’ or ‘false’ in there, but I am certain from Mr. Katz’s tone that this was implied.)

Mr. Katz belaboured this point until the judge began to show unmistakable signs of impatience.

At this point, Mr. Katz referred to the Vigna v Levant case, where (if I caught this bit correctly – my notes show I was not sure I heard this bit correctly) Mr. Levant was found guilty of defamation by calling someone ‘a censor’ on his blog.  Whatever the detail – someone was found guilty of defamation by calling someone else ‘a censor’ in a blog.

Mr. Warman had, apparently, been called ‘a censor’ by the defendants in this case.  This, according to Mr. Katz, constituted the ‘prima facie’ case for the defamation lawsuit to proceed, thus satisfying the ever-important Wilton-Siegel point #2.  (Again,  just because one person is defamed by being called ‘a censor’ does not mean the term is, in itself, defamatory.  The term is only defamatory if it is used falsely.  My best guess is that to get ‘prima facie’ ruling, the term has to be found defamatory in some instances while the actual defamation trial has to find that it is defamatory in THIS case.)

At this point. Mr. Katz recapped the 4 Wilton-Siegel points (not in order):

  • he had demonstrated point #2:  the ‘prima facie’ case for defamation
  • his client did all he could to ferret out the identity of the ‘John Does’ through other methods, satisfying point #3
  • he read into record the Free Dominion membership disclaimer, in order to demonstrate that if the members made defamatory statements on the site, they had lost their expectation of anonymity (and thus satisfying point #1)
  • balancing of ‘stuff’ for point #4….

Since Mr. Katz had not really addressed this bit before, he got to it in greater length at this point. In my imperfect understanding, the gist of his argument was that since Mr. Warman was a private citizen and not a public figure, calling him bad things is not part of public debate or political debate or any such related thingie.  It is nothing but defamation – not ‘free speech’, protected on any grounds whatsoever.

Therefore, Mr . Warman’s right to sue those defaming little bastards (I AM paraphrasing to reflect Mr. Katz’s tone of voice) trumps their weasely little ‘right to privacy’ and their identities ought to be handed over on a silver platter.  Like, yesterday.

At around this point, the York case was cited as precedent. Mr. Katz said this case was, to a great degree, based on the York case.  Again, my lack training in ‘the law’ is interfering with understanding:  I would have thought that the York case would not be something Mr. Katz would like to bring attention to, because (unless I am mistaken), the York case judge goes pretty far to stress: ‘Internet encourages free speech and anonymity is a critical component of this speech.’

But, back to Mr. Katz and his case: this is when Mr. Katz made the other statement that took the breath out of my lungs!

While trying to establish that Mr. Warman is a private citizen and not a public figure – and therefore the law does not protect criticism of him as ‘political speech’, Mr. Katz stated, with a straight face, in the most ‘everybody KNOWS this is so’ voice, that in order for someone to be a ‘public figure’, they have to be ‘AN ELECTED OFFICIAL ONLY’!!!

According to Mr. Katz, even Her Majesty, Queen Elisabeth II, would not qualify as a public figure!!!

Who would have thunk it…. our good Queen, not a ‘public figure’…  Tomorrow, it will have been 27 years ago that I swore my oath of allegiance to Queen Elisabeth II and all her heirs – as I enjoyed the privilege of becoming a Canadian Citizen!  I take my oath seriously – and this really, really offended me.

Of course, Mr. Katz did not mention that Mr. Warman did actually RUN for public office – he just failed to get elected.  I think.  Or, I could be mistaken.  I am not making any statement about Mr. Warman, whatsoever!

With this, Mr. Katz finished up.

….more to come….

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