John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 4 part 2

Day 1 part 1 and part 2 are here.  (all previous caveats still apply, though I have temporarily borrowed  slightly better tech.)

Day 2 is here.

Day 3 is here.

Day 4 part 1 is here.

Alternate account is here:  day 1, day 2day 3day 4.

As promised, let’s start with the ‘Fern Hill’ bit:  though, I am warning you, I might get a bit philosophical…

In her opening statement, Connie Fournier said her testimony would demonstrate a multi-year cyber-bullying campaign of herself by Dr. Baglow and that this lawsuit is just another means through which he is victimizing her.  It was alleged that, among other things, Dr. Baglow attempted to isolate Connie by bullying  and targeting people who supported her and even attempted to sabotage a fundraiser for their legal costs.  In order to have Dr. Baglow’s side of the story (as Connie’s testimony is still in the future), Mr. Burnet had to ask Dr. Baglow a lot of questions about this and thus bring his side of the story forward.

So, this is what is happening here.  I’ll explain this the best that I can – though, again, I cannot stress strongly enough that it is extremely difficult to follow what is happening in court because everyone has exhibits and is reading all kinds of materials which are being discussed, but the spectators have no access to these materials and only hear the references to them, what their importance is or is not according to all the different people.  So, I’ve tried to piece this together as best as I could…

Fern Hill is a blogger – and a decidedly progressive one.  Unlike Connie Fournier, Fern Hill is 100% pro choice and, from what I’ve gathered, she is very proudly far left of centre.  She has several co-bloggers, including a female blogger named DammitJanet.  And, as a fellow ideological leftist, she and Dr. Baglow were on very friendly terms.

Yet, when Dr. Baglow filed this particular lawsuit against the Fourniers, in my never-humble-opinion, Fern Hill saw the existential danger to the whole blogosphere that this lawsuit poses:  should Dr. Baglow be victorious, it will not be a ruling against the Fourniers and Roger Smith:  it will be a ruling against the blogosphere, as it exists today.  If one can be fined tens, perhaps hundreds of thousands of dollars in costs and penalties for a honestly believed-in comment that 5 or 6 people saw (before the Streissand effect applied), then one could not possibly post one’s own honestly believed-in opinions on any kind of an open forum.

Fern Hill was a friend of Dr. Baglow – but hoped the defendants (whom she disagreed with, but whose silencing she saw as being potentially capable of silencing herself) would prevail in this particular case.  This put her in a very uncomfortable position:  side with her friend and loose her rights, or side with her rights and anger her friend!

Fern Hill arrived at what she thought was a win-win solution:  she would work hard to raise funds for BOTH sides!

This way, she would support her friend, Dr.Baglow, in his fight and thus show her loyalty.  At the same time, she would raise the same amount of money for the defendants, as they were also fighting for her own right to speak freely.

Both sides get some help – all benefit, her conscience is clear.

Win-win!!!

Right?

Wrong!!!

And it was during this portion of the testimony that Dr. Baglow was not his polished, professional self but let some of his raw emotion show.  He was truly and honestly hurt by Fern Hill’s suggestion that she support both her friend and her rights (as she saw it)!  In my never-humble-opinion, Dr. Baglow truly and honestly did not get Fern Hill’s dilemma, nor her reasoning for the proposed solution.  To him, this was a black-and-white issue:  either you support your ideogical allies, or you are a traitor to the cause worthy of the worst possible abuse.

This brings in the philosophy bit….

In my never-humble-opinion, this is a key, fundamental, un-negotiable divide between collectivists and individualists…and why the two cannot begin to see eye to eye.

Individualists  realize just how important to humankind the approval of their peers is, how necessary it is for one to have the acceptance/approval of the social group one exists in in order to thrive, physically and mentally.  It is precisely because they understand this basic human need ‘to be accepted’ that individuals who stand up to the group and/or specific elements of the group (which may be influential and/or powerful) and stand up for what they believe is right and wrong.

In other words, risking social rejection in order to stand on principle is, to the individualist, the highest form of morality, worthy of the greatest praise and admiration.

Conversely, compromising one’s ideals in order to conform to the group is, among individualists, considered to be the height of hypocrisy and the most contemptible, hypocritical  behaviour ever.

Now, let us consider the collectivist point of view:

To the collectivist, the group IS the embodiment of the ‘self’.

Thus, setting personal principles aside and supporting ‘the group goal’ (even if parts of it, or the means of achieving it proposed, are against one’s personal principles of ‘right and wrong’) is seen as the most admirable, praise-worthy quality of self-lessness and altruistic dedication to ‘the cause’.

Standing up against ‘the group’ (or, by default, the loudest and thus most influential elements within the group) in order to preserve one’s principles of right and wrong is seen as the cardinal sin of ‘arrogance’ and ‘self-gratification’  by the collectivists.

With such a different conception of what constitutes morality – standing on principle against the group vs. giving up principles to the will of the group – is it any surprise that a collectivist would not only fail to see how standing on one’s principles would not be praiseworthy, but how he could perceive a person trying to protect themselves from the actions of  ‘a member of the group’ would be seen as ‘betrayal’.

And this is what I think Fern Hill’s problem was.

Dr. Baglow testified that he felt betayed by his friend and ideological ally, he saw her action as aiding and abetting of Nazi enablers (because, even though the Fourniers are not themselves Nazis, by fighting for freedom of speech for everyone, even the distasteful elements in society, he sees their actions as enabling Nazis to spread hate speech).  I hope I have understood this accurately – if I have made errors, please, let me know.

Because Dr. Baglow felt so betrayed by Fern Hill’s support for both sides, he posted and Tweeted some nasty things, designed to express the depth of hurt and anger that he felt.  And, as a true collectivist who presumes guilt by association, he smeared anyone who stood up for Fern Hill (I believe it was in this context that some misogynistic abuse was hurled at DammiJanet, Fern Hill’s co-blogger and a fellow progressive).  He demanded that Fern Hill pick sides – and clearly indicated which side he thought she ought to pick.

In my never-humble-opinion, this admission proves the charge that he interfered with Connie’s fundraising efforts as well as her accusations that he tried to bully people who stood up for her cause, isolating her from supporters.  But, my understanding is necessarily imperfect as I have no legal training, and it is difficult to predict what kind of impression this made on the judge.

Are you familiar with the expression:  “Looking down one’s nose at something/someone”?

I am not a very good observer of facial expressions or body language, so I don’t really recall ever having quite understood what people mean by this phrase.  Until Dr. Baglow’s cross examination, that is.

At times, he would remove his glasses, tilt his head back and glare contemptuously at Barbara Kulaszka (who was the first to start the cross examination) and the rest of the defendants and, in the most derisive, patronizing tone, he’d utter phrases like “extreme free speech types”…  I found this very uncomfortable, because this did not seem like the very charming, courteous man whom I’ve had the pleasure to chat with.

Plus – compared to me, the Fourniers are very much ‘centrists’ when it comes to ‘free speech’ ideas.  Myself, I am an anti-slavery fundamentalist, and, thus, through logical evaluation, I must take the position of a free speech absolutist.  If I own my self, then I am 100% responsible for my actions, regardless of who does and says what.  This also means that if you own your self, then I am not responsible for your actions or how you react to my words.  Thus, falsely yelling FIRE in a crowded theatre must not be prohibited because if I were to be responsible for how other people react to my words, then such a responsibility implies at least part ownership.  After all, how can I be responsible for you if I have no coercive power over you?  And if I have coercive power over you, then you do not truly own your self….or so the reasoning goes.  Others have said all this much more eloquently many, many times before.

Anyhow, the cross examination  was very exciting.

Barbara Kulaszka, the lawyer for Mark Fournier, had gotten Dr. Baglow to agree to some of the basic facts about the Khadr case – in particular, that Omar Khadr had been picked up in a raid on the Taliban.  In other words, we were again covering the whole Al Qaeda vs Taliban thing.

Then we got into the ‘Taliban Jack’ nickname for Jack Layton because of his perceived support of the Taliban and why that was not defamatory.

The next bit covered had, I suspect, something to do with ‘context’.

Throughout is testimony, Dr. Baglow had testified that he did not remove words even more insulting and offensive that he was called, on his own blog and under his control, because of the context…either they were clearly miss-use of the  words or they were a simple vulgarity or if was so obvious from the context that they were just silly that it was not worth his time to bother with them.  This, however, was different, because there was insufficient context around the comment to make it clear it was not literally true.

Barbara Kulaszka skillfully walked Dr. Baglow through many instances on his blog where he relies on ‘general information’ for context and does not supply it – nor does he repair broken links that provide context on older posts, thus committing the same error of publishing strong statements of views without the necessary context.  I think she demonstrated this clearly, as it was at this point in the cross examination that Dr. Baglow began fidgeting in his seat.

There was a lot of back and forth, asking about the blogosphere, other fora and blogs and bloggers – and commenters.  One name kept popping up quite a lot:  ‘MarkyMark’.  Dr. Baglow testified that they had met through the blogosphere and became friends and that MarkyMark even stayed in his house!

When asked about blogs on the political right, he named many.  When asked about blogs on the political left, he hmmmd and eventually came up with a few rather unknown ones while not naming any of the ‘biggies’ (that even I know about – and I know very little about the ‘progressive’ bit of the blogosphere, for obvious reasons).  I was quite surprised at this and wondered about it.

He testified, with a straight face, that when he told people that if they were looking for Nazis (people who said they had guns and were looking to kill Nazis, no less), they should go see Connie Fournier, he did not intend for them to take their guns and threaten Connie but that he honestly believed ‘she could facilitate contact’ with them.  It continued much in this way for quite some time, suggesting Connie should be imitated with a staged Gestapo accent, and so on.  This is obviously just teasing and not abusive in the least, as per Dr. Baglow.

About his online implying that Connie had maliciously sent him an email with an electronic virus, Dr. Baglow forced out a chuckle and said that right after he had read his email, his computer crashed, so he joked about it.

Dr. Baglow mocked the Fourniers from the stand for winning the George Orwell Free Speech Award, sneering that was not an honourable award to win.

It was a bit after this when BlazingCatFur (BCF) was mentioned, and in that context the term SLAPP suit was raised.

For those who do not know, a SLAPP suit is a Strategic Lawsuit Against Public Participation and a favourite tool of the totalitarians to suppress free speech by suing people into oblivion.  If you did not know what this term was, you are not alone – the judge did not know either and commented on what an interesting concept this was.

It was at this point that I got a bad toothache and I did not take as good notes afterwards.  My apologies – I’ll have to be a little bit brief.

The most important thing that came out during next little bit of talking about BCF and his blog was something Dr. Baglow had written.  It seems that something negative was said about BCF on another, most likely Dr. Dawg’s, and BCF copy/pasted it when rebutting it or somehow responding to it, so that the offensive term appeared again, this time as part of BCF’s comment.

Dr. Dawg had then written something to the effect that by showing the text and responding to it, BCF had, in fact, re-published it.

This is important because the words that are the subject of this lawsuit were similarly copied and re-published by the plaintiff.  So, getting him on record that repeating and responding constitutes republishing may become an important part of the case.

There was also quite a bit of stuff about Dr. Baglow saying rather unpleasant things about a lot of people, some in anger, some in frustration – it is what it is – as well as about the Canadian Civil Liberties Association, who also happens to be intervening in this court case as a friend of the court.

Oh yes – and Mr. Burnet, Dr. Balow’s lawyer, had, at one point, jumped to his feet and outed himself as PeterOne or Peter1 or some name that sounds like this and admitted taking part in some of these online verbal skirmishes.

At one point, Dr. Baglow testified that ‘there is a lot of political motivation behind it’ – and by ‘it’ I understood he meant this lawsuit (I tried to insert other things, but this was the only one that made sense in this context), which would have proven what Roger smith had said in his opening statement:  this is a political disagreement and does not belong in a court of law because it is inappropriate for the courts to be deciding which political opinions are legal to hold and which are not.

And this ends my account of day 4 – report on day 5 coming soon!

 

 

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 3

NOTICE:  this post discusses and assesses the testimony given by Mr. Bows, so, if any reader who is banned by the court from reading about Mr. Bow’s testimony until his own is finished comes across this post, they ought to leave this page right away in order not to breach the court’s order.

Day 1 part 1 and part 2 are here.  (all previous caveats still apply, though I have temporarily borrowed a slightly better tech.)

Day 2 is here.

Alternate account is here:  day 1, day 2, day 3, day 4.

Day 3, Wednesday, was the ‘broken-up day’:  Madam justice had a previous commitment for a 3 hour meeting smack dab in the middle of the day.  So, the court was scheduled from 9:30 to 10:30, then a bit of a break, then again from 1:30 to 5:00.  And, as I had commitments of my own which I had been neglecting due to the trial, I took the morning to try and get caught up on some of them.  So, I missed the morning hour…

I was there for 1:30, ready to go!  But, the most exciting thing to happen was that the bailiff announced that the courtroom clock had finally been fixed!!!  It now actually displays the correct time….

After a bit of waiting, we learned that Madam justice had finished her meeting, but needed a bite to eat, so the court would not reconvene until 2 pm.  Oh well…

At 2 pm, on the dot, the court reconvened.  And, I had another little surprise:  Dr. Baglow was not on the stand!

Could he have finished his testimony and been cross examined by 4 people in the span of the morning hour?  Not quite…

Because the trial had originally been scheduled for 3 days only, that is how long Mr. Bow had planned to be away.  In order to accommodate him, all the participants agreed to permit Dr. Baglow’s  testimony to be interrupted in order to let Mr. Bow testify and be cross examined first.

Mr. James Edward Bow chose to swear on the Bible, then settled in to the witness box.  In his dark grey suit, white shirt, striped tie, with understated wire-rim glasses complementing his dark hair and eyes, he looked handsome and dapper.

Aside:  while talking about what people were wearing…Connie wore a fuchsia cardigan that was almost identical in colour to my own top, but mine was short sleeve, so all awkwardness was avoided!  Sorry – humorous interlude over!

Mr. Bow testified that he lived in Kitchener, Ontario and worked as a freelance writer with a web designed business on the side.  While he never had any formal training in web designed, he had worked for a number of tech companies in the 90′s and received a lot of on the job training.  In 2005, when his daughter was born, he became a stay-at-home dad while doing the writing and web stuff on the side from home.   As a stay-at-home mom who also blogs, I can relate!

When Mr. Bow testified that he had received his degree in Environmentalism, I began to seriously doubt Dr. Baglow’s sanity:  is he really bringing a capital ‘E’ Environmentalist to try to support the veracity of a contentious claim?  Really?!?!?

I had to work hard to suppress a bout of giggles:  like ANYONE on EARTH would ever again believe a word that comes out of the mouth of an ‘E’nvironmentlist!!!

Disclosure – my  background is physics, field of data acquisition and analysis…and I specialized in helping scientists/technologists avoid ‘conformational bias’…so, I find the modern ‘E’nvironmentalists particularly, well, how can I put this without being defamatory…’not up to snuff’ scientifically and having a very, very deep, perhaps un-bridgeable, credibility deficit.

In my never humble opinion, Mr. Bow’s testimony bore out the expectations one would have of an ‘E’nvironmentalist:  lots of claims of technical expertise followed by ‘D’uh, I don’t know how to do that…’

To his credit, Mr. Bow tried very hard to support his friend, Dr. Baglow, but to anyone with an iota if IT knowledge, he simply did not come across as credible – to my never-humble-thinking.

He blamed Dr. Baglow for not updating the comments before they attempted to migrate them to the new platform (without explaining why they could not have simply gone through the steps of updating step by step by step…), completely forgetting that if they had both migrated the site to the new spot (for the hosting of which Mr. Bow got paid by Dr. Baglow) AND left the old site up, instead of shutting it down, the defendants in this case would not have been deprived of access to information essential to their defense.  No amount of difficulties with migrating the comments over would have caused this damage had they not actively shut the old site down…

In another bit of testimony, Mr. Bow testified that it was Dr. Baglow’s decision to stop trying to recover the ‘lost’ comments, or he would have continued to look for ways of migrating them over.  In my never-humble-opinion, this was Mr. Bow covering his rear end, making sure his incompetence did not get perceived as malice and shifting all responsibility for the ‘lost’ comments squarely onto Dr. Baglow.

At this point, my other-world duties pulled me out of the courtroom:  I may have put off fixing my own broken (front) tooth till next week in order to attend the trial, but, I could not put such limitations on ‘my little one’ (OK, he’s taller than I am, but he will ALWAYS be ‘my little one’!!!) and I had to leave the courtroom in order to take HIM to the dentist…

When I left the courtroom in a rush, I found Dr. Baglow pacing nervously in front of the courtroom:  by the judge’s order (and as per ‘normal’ practice, he was excluded from the courtroom while other witnesses for his side’ were ‘on the stand’).  As we had exchanged pleasantries in the past few days, and as he had always been very civil towards me, I greeted him and had a little (though very hurried – I had stayed in the courtroom well into my time-margin).

During this exchange, he pointed out to me that I had indeed misunderstood the timing when he had joined the NDP.  I had reported on this in Day 2:  having heard that he had torn up his NDP membership card during Buffalo Bob’s reign, and the accusations that Bob Rae’s political opponents were motivated by anti-Semitism (since Mr. Rae’s wife is Jewish), I wanted to head off any potential smear campaign against Mr. Baglow due to the confluence of this.  Yes, I pointed this out in my reporting – but, with sincere and honest statement of fact that I do NOT believe Dr. Baglow to be an anti-Semite – specifically to ward off any potential smear campaign.

Which is why I was  very happy that Dr.Bglow corrected my error:  he had actually joined the NDP because he had been inspired by Bob Rae’s electoral victory!  And, as I understood (and reported), it was Mr. Rae’s subsequent policies that got him so disgusted, he ‘tore up his membership card’.

He accepted my assurance that my calling attention to this was an effort to ‘nip in the bud’ any smears – and appreciated it.  I in turn, appreciated being corrected, because I would much rather be corrected in the short run and carry accurate information than be left in error!!!

I promised to correct in in the original post (I put the edit at the top, so anyone reading it will have the correction before getting to the erroneous bit, without hiding I had made an error), and I also promised to describe our conversation on ‘day 3′ to explain how the correction came about.

That was it for me for ‘day 3′ – days 4 and 5 are coming up as soon as I can type them up!

 

As always:  if I have made any errors,  if you can correct/add to this commentary, please do so and I’ll be glad to edit this post in order to add your comment!!!

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 1, part 2

All the caveats from part 1 (more or less forming most of part 1) apply.  Please read them….DLDR:  borrowed clunky tech and limited internet time, cannot highlight (thus link etc.) – will update once my computer is fixed.  Also, these are all jut my highly imperfect personal observations and opinions and ought not be treated as anything more than that.

An account of Day 1 can be found at The FreedomSite Blog.

I have been struggling with how to write up this part, because things got quite sensational at some points and I am quite terrified that if I repeat what I believe to have heard in court, I will open myself up to being sued because as I understand the current state of Canada defamation laws, truth is not a defense there, either, as a person is presumed to be guilty and malicious and if the words are ‘spoken maliciously’ then their truthfulness is irrelevant.

In my online persona, I have chosen to emulate Xanthippe, the wife of Socrates and THE proverbial nag:  I am good at nagging, so I thought I’d go with it.  But, as Xanthippa, I try my best to channel Xanthippe with all her vitriol and sharp tongue – that’s part of the fun of creating an online persona:  it is not you you, but that persona you, so you can say what the you you might, but in a different way, more in line with the persona you are attempting to channel.  (Remember, if it were not for anonymous speech, the Federalist Papers could never have been published and the USA would still be a Crown possession.)

Something that Xanthippa says with the persona-appropriate vitriol which defines her and signifies no more than a reflection of her nature could, quite easily, be misinterpreted as ‘malicious’ when all I am doing is role-playing…presenting my opinion, but with a satirical twist.  And satire does not come across too easily in the courtroom!

Aside:  there will be more personas I am developing in a different, non-written online project, but more about that later.  (But, if anyone has an old but nice wig they’d be willing to donate to that effort, I would be eternally grateful.)

Back to the trial:  first on the order were some legal tidying-up thingies and once these were out of the way, Madam Justice Polowin esplained that she is a bit of a luddite and barely knows how to use email…and has never ever read a blog.  A ‘clean slate’ she called herself.  I am not convinced this is the best background for this case, as it may get very technical, but (and I am jumping ahead in time somewhat) she took copious notes of everything and whenever she needed to understand a point, she not only asked for a clarification, she actually repeated her understanding of the point and asked for confirmation that it is accurate.  That, in my never-humble-opinion, is a good thing.

Another point of interest was that  motion was introduced that any potential witnesses are to be excluded from the courtroom until after their testimony and cross examination, so as not to be influenced by what they hear and see before they testify.  All parties agreed and a nice-dressed gentleman (Mr. Bow, Dr. Baglow’s IT guy) got up and left the courtroom.

Now the opening statements.

Mr. Burnet, Dr. Baglow’s lawyer, went first.  He seems like a competent lawyer and he assumed that reasonable, avuncular style that must be effective because it is affected by so many lawyers (good and bad).  Personally, I find that particular form of arguing patronizing and irritating at best because the Aspie in me considers it to be a form of manipulation.  And we, Aspies, are very allergic to being manipulated:  we see such manipulation as using a subtle form of shaming in order to disguise the lack of convincing evidence.  This opinion of mine was only strengthened by Mr. Burnet’s nervous habit of scratching the inside of his left ear with the arm of his glasses.

But, that is my perception of his mannerisms and not a reflection on Mr. Burnet’s case because a lot of lawyers affect that style – and a lot of lawyers will try to act as if they have a weak case in order for their opponents to underestimate it and not prepare adequately.  And I am sufficiently poor judge of human body language that I would never venture to guess if he was really nervous or pretending to be nervous as part of his courtroom strategy.

If I understood Mr. Burnet’s opening statement accurately, it boils down to a few major points (and I am paraphrasing, at times quite heavily, as my notes are incomplete and I cannot but channel Xanthippe – so, any vitriol you detect below is ‘satire’ and, at times, dark sarcasm, and not malice whatsoever in any way, shape or form):

  • he anticipates that the defendants will try to defend themselves by trying to suggest that there ought to be one set of laws in real life and a different set of laws on the internet and that this is wrong:  the same laws should apply the same way to everybody, for a person’s a person, no matter how small or virtual
  • his client is a retired civil servant, openly and proudly (sic) left wing, enjoys political discourse and enjoys being a blogger in order to promote intelligent (sic)political debate in the public sphere and that while his blog is the primary vehicle for this, he also does so on other blogs and in traditional media.  He engages with people with differing political views.
  • the defendants’  site is ‘extremely right wing’ and their political views are ‘extremely right wing’ which makes them offensive, which is why his client did not usually engage at Free Dominion, but he did engage in a discussion with Mr. Smith on a different blog…

Aside:  up to this point, Mr. Burnet had very considerately explained all the technical terms and jargon patiently answered the many detailed questions the judge had asked.  He kind of got into the habit of talking for a bit, then looking up and asking if any explanations were needed.  So far, so good.  Now, Mr. Burnet delved into how Mr. Smith and his client had gotten into a heated debate about Mr. Baglow’s glaringly hypocritical position* on the re-patriation of Omar Kadr…and he looked up to the judge and asked if she had heard of Omar Khadr.  Madam Justice Polowin smiled amusedly and said that even though she may be a luddite, she does read the papers…

  • His client learned about the offensive comment on the Free Dominion site from somebody else, contacted the Fourniers and demanded a takedown and an apology, but got none.
  • Articles with his client’s negative views of the Taliban were freely and publicly available and clearly contradicted that statement, even though his client continued to vociferously support Omar Khadr in his efforts at repatriation
  • his client may have used caustic and vulgar language against his opponent – including the defendants – while on the blogosphere but that does not give them the right to do the same to him (implying, though never quite stating, that if they did not like it, they could have sued him like he is suing them)
  • the defamatory comment never caused his client any harm, financial or otherwise, but the Canadian defamation laws are so flawed that this does not matter, he can still get money out of this and so he should (the proper legal term Mr. Burnet used, I think, was ‘damages at large’, demanding there not be a breakdown of what were damages and what were penalties, so that the ridiculousness of this situation could more easily be glossed over
  • Mr. Burnet stressed very vigorously that under our current Canadian defamation laws, guilt and malice are PRESUMED and almost impossible to disprove, so they should just win by default
  • facilitating putting something onto an obscure and unread spot on the internet = PUBLISHING and having editorial control
  • this is NOT a Charter challenge because the proper notices have not been filed (with the implications that what the defense is demanding is nothing short of a ‘Charter challenge’  (the judge raised her proverbial eyebrows at this)
  • this is not a SLAPP suit (methinks the lady does protest too much)
  • this is NOT a case of limiting freedoms of citizens  or (I could not help but chuckle at just how sincerely Mr. Burnet managed to deliver this one) libel chill, freedom of speech, blah blah blah…they’re not being silly bunnies or anything like that…..
  • just because the internet is evolving does not mean that the tort of defamation ought to evolve with it, to keep pace with emerging technologies is a silly bunny thing to do and any0ne who says otherwise is a snotling-fondler (Please, google ‘snotling-fondler’ for definition as I cannot currently link:  it is defined as a vulgar insult and not an actionable term of defamation….’snotlings’ are the lowest form of goblins, which are fictional, so this cannot, by definition, be actionable. And, yes, these are obviously not the actual words Mr. Burnet used, but, in my never-humble-opinion, they capture the ‘spirit’ in which this particular point was offered.)
  • (and I think I got this argument’s wording down closely to how it was presented, with a saintly hallow hovering over Mr. Burnet’s head) The tort of defamation is the SOLE LAW that underpins civil discourse & keeps it from descending into a cacophonous, vitriolic shouting match dominated by those with the loudest & most strident voices….  (The reason I think I got this one down relatively closely to what was said is because the judge asked for the statement to be repeated and commented amusedly on the terms used.)

It is not exhaustive nor, obviously, word for word, but I hope this captures the spirit of the opening statement by the plaintiff’s lawyer.

Next up was Barbara Kulaszka, the lawyer representing Mark Fournier.

Honest declaration of bias:  I have met Ms. Kulaszka and observed her in the courtroom.  In person, I think she is brilliant and very, very nice.  I have read some of her writings and been deeply impressed by them – insightful, well researched, documented, eloquently phrased and any other praise you wish to heap upon her head.  I have, however, been less impressed by her past verbal performance in the courtrooms:  that Barbara Kulaszka, however, did not show up today!

I saw passion and fire – and it was excellent!  Not just in her opening statement (sorry, jumping ahead again), but she was up on her feet, objecting, arguing passionately and eloquently.  In other words, I liked what I saw!

Anyhow:  re-focusing!!!

I may not have captured everything, but here are some of the highlights of her opening statement (again, as with the rest of all my writing, paraphrasing, satire, sarcasm, hyperbole and all that, are in play)

  • pseudonyms not the same as the people who use them (quite right – I may have similar opinions as Xanthippa – but I would not express them in the same way that, as Shakespeare calls he, ‘the proverbial shrew’ would!!! – ok, back to Xanthippa’s voice)
  • Dr. Dawg called Connie Fournier ‘his worst cyber enemy’ – superhero analogies  (In my never-humble-opinion, Connie Fournier IS a real-life super-hero!!!  Please, don’t ask me what that would make her cyber-opponents…I don’t want to get sued!)
  • the argument started on the Jay Curry blog  (Aside:  I like his new blog much more than his old one.)
  • heated argument, August 2010, Omar Khadr…election year…
  • argument started on Jay Curry’s blog, went on to Dawg’s Blog, then there was 1 post on Free Dominion where Roger Smith put up an op-ed type of a post
  • Omar Khadr, Canadians getting killed – back to Dawg’s Bawg ‘They dare call it treason’…
  • traitor, treason. +++ – John Baglow does not find being called that ‘objectionable’ (unstated implication: is he proud of those epitaphs?  Just what kind of a cat is this ‘Dawg’?)
  • For his support for Omar Khadr’s repatriation and opposition to the was in Afghanistan, Jack Layton earned the nick-name of ‘Taliban Jack’:  this is the same thing!  A vocal supporter of the Taliban-linked Omar Khadr’s propaganda message gets tarnished with a Taliban-linked position….logical and natural – and not actionable.
  • her client, Mark Fournier, had never wrote or approved those words, Roger Smith did – so he should not be liable for them
  • Mark Fournier never repeated those words (though Dr. Baglow did re-publish them on the internet, several times)
  • Mark Fournier never received any complaint about those words or any request to remove them – at any point, as the plaintiff only contacted Connie Fournier, never Mark.
  • WIC Radio vs Simpson, Hill vs Church of Scientology (precedents)
  • not a Charter challenge, ‘incremental changes’ to the law
  • ‘publication’ should not be found for something anonymous 3rd parties posted in an un-moderated medium
  • Cost of freedom of speech is getting too high, chilling effect, need legal guidance
  • words were not capable of defamation in that context
  • test is contextual, interactive…quoted justice Labelle in the Simpson case (thick skin quote)
  • political rhetoric…
  • words do not carry the meaning assigned them by the plaintiff…
  • public interest
  • malice? – ‘comment’ = editorial comment = hyperbolic language
  • comment may not be fair, but that is not what ‘fair comment’ means
  • Dr. Dawg had means to refute, used Miss Mew as a sock-puppet
  • 3rd of April, 2011 – 10′s of thousands f comments suddenly disappeared, denying Mark Fournier access to information needed for his defense
  • justice Annis found the words were not defamatory
  • her client is being sued for his political positions and how people react to them, then 10′s of thousands of comments he could have used for his defense disappeared…

There may have been more, but this is what I ‘caught’.

Next came Connie Fournier’s opening statement.

I will not report on what it contained because I am not as brave as Connie and I am afraid that if I told the truth of what was said in public court, I would get sued and loose the family home and my ability to provide a home for my children.  Let it suffice to say it included allegations of statements made by Dr. Baglow regarding justice Annis as well as several other, un-named judges which made the judge’s jaw to, quite literally, drop.

Next came Roger Smith’s opening statement.

He was extremely eloquent and, in  my never-humble-opinion, totally  brilliant.

First, he explained that while his legal name is Roger Smith, his birth name is Roger O’Donnell  and he is widely known under that identity in  professional circles, specifically in the weather forecasting circles and in Ireland.

Next he explained (to a ‘knowing’ and ‘understanding’ head-nodding of the judge) that by defining his client as ‘proudly left wing’ and the Free Dominion forum as ‘extremist right wing’, the plaintiff (through his judge) had made this a case that is NOT about defamation, but about one’s position on the political spectrum…and, in his opinion, the court of law is NOT the appropriate place to rule on which political opinions are permissible and which ones are not.

By the plaintiff’s lawyer’s opening statement alone, this case is not about defamation of an individual but about which political opinions are legally permissible and which political opinions are against the law…

He was, by far, the most  eloquent of the bunch  - so much so that I stopped taking notes and listened to him (regardless of the judge’s annoying interruptions) with ever growing respect and admiration (and I do NOT say this lightly!!!).

Next, the judge asked the CCLA lawyer, who did not have the ‘right’ to make an opening statement, to briefly sketch what the CCLA position is, which is what he did, in 5 points:  all of which boiled down to ‘we want the law to evolve with freedom of speech in mind and something as ludicrous as this case ought to be tossed out of court…

Actually, it was quite brilliant:  the young man (oh, I feel so old) argued their position logically and eloquently and really, really well, bringing in some of the phrases Dr. Baglow’s lawyer used and demonstrating just how ridiculous and absurd those arguments were, without needing to resort to any manipulative means or methods.

I think I love the CCLA!

OK – this is MY highly personal and admittedly prejudiced perception of what went on in court – please, do not treat is as anything more than my highly imperfect and admittedly ignorant opinion of the proceedings.

 

*   *   *

*  I consider this position to be highly hypocritical because I cannot believe that an intelligent man, with a doctorate to boot, could possibly honestly think that using a colloquial definition of some words which are identical to a ‘legal jargon’ label with a very, very narrow and specific legal meaning, applying them in the colloquial sense to a person who glaringly does not qualify for the legal definition of that term, and then, wrapping himself in the tattered cloak of self righteousness, demanding the legal protections for that person for which he would only qualify had he satisfied the ‘legal definition’…and branding anyone who fails to buy in to his glaringly flawed argument as evil and unfeeling and somehow less than human.  Sorry, the man I see in front of me seems much too intelligent not to grasp exactly what the difference between the colloquial and legal definition is, and how Omar Khadr does not qualify for the UN legal definition of ‘child soldier’.  Sure, some of the ‘unwashed & uneducted masses’ could have fallen prey to such glaringly obvious propaganda, but not an intellectual with a doctorate!!!  In the absence of stupidity/ignorance, the only other possible explanation, in my never-humble-opinion, is hypocrisy…for partisan political ends.

 

 

 

An Email form Connie Fournier of Free Dominion

Here is the email:

Thanks to YOU, Free Dominion is Appealing!
Hi, FD Friends!

Once again I’m emailing you with a Free Dominion legal update because you have helped us in the past, and/or you are on our list of friends who are interested in keeping up with our cases. (Please let me know if you no longer want to get these status reports.)
Thanks to all of you for your support, prayers and encouragement!  

 

Even though Free Dominion is still closed to the public due to the Court Order obtained by Richard Warman, we have some GOOD NEWS! 

 

We WON the copyright case against Richard Warman and the National Post that was scheduled to be heard in the Federal Court of Appeal on February 19th!  Just days before the trial was to begin, both Warman and the National Post dropped out of the case. 
Now Warman and the National Post must pay our costs!

On March 24th we will be in Ottawa for the long-awaited Baglow trial.  It will last for three days and it will be at the Courthouse at 161 Elgin St.

Drop by if you can!

Our fundraiser is doing well…we have raised nearly 50% of our goal…so we have filed our Appeal of the John Doe decision that forced us to close the site.

Mark Steyn very kindly donated some of his books and shirts for us to offer as perks on our fundraiser!  Click on the link below if you want to do some shopping! :-)

We have one week to go, so please share our fundraiser info with your friends!

Please note that the fundraiser is in US funds, so take that into account if you decide to donate.

If you feel more inclined, you can also help out using an Interac Email Money Transfer to connie@freedominion.ca.

And our mailing address is:

Connie Fournier
2000 Unity Rd
Elginburg, ON  K0H 1M0

Thank you so much to all of you for being there for us!  We said we were going to continue on fighting for your freedom, and we are marching on!

We hope that some day we have the opportunity to thank each and every one of you in person!

Fondest Regards,
Connie and Mark

Free Dominion ‘copyright’ case finally won – for good!!!

This is most excellent news!!!

As I reported earlier, when the court ruling for the Fourniers and Free Dominion came down, the ruling had indeed been in their favour.  However, Richard Warman had appealed and so, having won, their federal case dragged on…

Today, the appeal had been dropped.  From Free Dominion:

‘Today we received notices of discontinance from the National Post and from RWarman in the copyright case that was set to be heard in the Federal Court of Appeal this coming Wednesday!

We were self-represented in this this case and we won in the lower court but R ichard W arman decided to appeal and the National Post lawyered up and joined in against us.

We fought hard and were so blessed to get two great interveners. The CIPPIC, who also intervened in the privacy motion in the John Doe case, and the CCIA (and American advocacy group that represents Google, eBay, Facebook and many other heavy-hitters).

On the eve of the trial, after all was prepared to go ahead, our opponents just dropped out with no explanation.

We are now entitled to costs on this case, and it is OVER! Great case law has been established, and we have one less lawsuit to think about.

Just a few more weeks and we hope to cross the Baglow one off the list, too!

Onward and upward! 8) 

Connie and Mark’

One down, so many more to go…  So, while celebrating, why not pop by their legal fund fundraiser and give them some help with the rest of the battles they are fighting on all of our behalfs!

 

P.S. – I wonder if the EU ruling earlier today had anything to do with the dropping of the appeal…

EU court rules linking does not infringe copyright

While most of us would, I hope, consider this common sense, it is nonetheless nice to have the EU courts confirm it.

This is important because the EU has some of the strongest copyright protection laws, which give authors a great deal of control over their published work.

‘The court had to consider whether by providing links Retriever Sverige had taken part in an “act of communication to the public”. Under EU copyright law, authors have the exclusive right to authorise or prohibit any communication to the public of their works.

The court ruled that the law had not been broken because the articles in question were on Goteborgs-Posten’s website and therefore already “freely available”.

In a statement it said: “The owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.” ‘

 

A link that would take you behind a pay-wall, that is a different thing…

However, this ruling parallels the victory Connie and Mark Fournier of  the now censored Free Dominion had won in Canada’s federal court over Richard Warman, who claimed they had infringed his copyright by linking to an image on his own website.  In this particular case, the judge ruled that Warman had complete editorial control over his image and that linking to it, even should a thumbnail be displayed, did not constitute re-publishing it without permission.

Proper role of Government

 

Equality and Inequality under Law

 

Coercion vs Freedom

The Nature and Origin of Human Rights

 

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