Time Immortal

All of this is a lengthy preamble to something I’ve been thinking about these past weeks: a legal defence fund for people who are vulnerable to being blown over by Kinsellan huffing and puffing. The National Post and Maclean’s don’t need help, but most bloggers do. My observation is that bloggers make defamation law errors very frequently — not that they engage in real defamation often, but that they overreact to the first whiff of gunpowder, and cower before any schmuck with a lawyer’s letter, because they do not know their defences under defamation law, and even if they did, they feel they can’t afford to exercise them.

The point here is not to oppose all defamation suits against bloggers; on occasion, bloggers will be in the wrong, and the right response is to clarify or apologize. Unlike human rights inquisitions — which are always immoral — some complaints against bloggers will have merit. The point, rather, will be to protect bloggers against political attacks masquerading as defamation threats. And that’s what should make this task less enormous than it might sound: if my experience at the Western Standard is any guide, almost all of the work will be merely fending off folks who were angry enough to spend $500 to get a lawyer to draft a demand letter, but have neither the legal case nor the financial resources to file a proper statement of claim, let alone run a trial.

It is my anecdotal observation that the preponderance of such threats come from the domestic left or Islamic fascists, and I imagine that most of the bloggers who will need to be protected will come from the conservative side of the spectrum. But not all; at the magazine, we received demand letters from provincial Tories upset with our coverage of a scandal. And I can think of at least one Liberal blogger whose case — not defamation, but media law nonetheless — I’d love to take.

I would imagine that such a defence fund would be financed partly through the pro bono contributions of defamation lawyers like myself, and partly through dues paid by bloggers into a fund — say, a dollar a month. I imagine it would be a non-profit corporation, overseen by a board scrutinizing revenues and expenses. There would have to be clear rules of when to take an engagement — a written “insurance policy”, including rules to avoid the moral hazard that insurance creates.

Of course, the larger threat is not nuisance defamation suits, for which the legal system has built-in suppresants ranging from the plaintiff’s own legal fees and disbursements to the commendable Canadian rule that the loser pays a portion of the winner’s costs. The larger threat is human rights commissions of the sort that have gone after Mark Steyn, Free Dominion, and others. These are rarer than defamation threats, so far, but they are far more worrisome. I think we need to wait a few more months to see how the current media blowback against commission bullying plays out.

There’s not much more to say that Mr. Levant doesn’t already say here. It’s a good idea, methinks, especially in these uncertain times when the typical response of progressives to reasonable criticism of their ideas is to accuse one of being a bigot.