Time Immortal

Not all of them, admittedly — just the ones with which he personally disagrees.

I’ve written about how Richard Warman, the former Canadian Human Rights Commission staffer who is now the CHRC’s biggest customer for thought crime complaints, has tried to censor Canadian libraries in British Columbia and Ontario.

But the largest libraries in the world now, of course, are online. And defamation suits and human rights complaints — Warman’s preferred tools of Censorship — don’t work as well if the libraries and other websites in question are based in the United States. Their robust First Amendment means that U.S. defamation law is not an effective censorship tool, and that country does not — yet, at least — have anything as pernicious as Canada’s various thought crimes laws.

Well, if a Canadian can’t censor U.S. websites, can he get Internet companies here in Canada to block those U.S. sites from Canadian internet users, like Communist China does with politically incorrect sites? That’s exactly what Warman sought to do in an application to the Canadian Radio-television and Telecommunications Commission.

I’m not an expert in telecommunications law, but from what I gather, Canada’s big Internet companies like Rogers and Bell are governed by the Telecommunications Act (apparently little ISP’s aren’t). Section 36 of that Act specifically bans communication companies from interfering with content without government approval — and that includes censoring websites:

Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

Well, that’s what Warman — and the censors at the Canadian Jewish Congress — asked the Commission to do. In the written application to the CRTC filed by his lawyers, Warman asks not only for the CRTC’s “permission” under section 36 to ban two particular U.S. websites, but he also asks for:

Directions on procedure… whereby Canadian carriers and other interested parties can present their views as to whether the blocking of these URLs should be made a final order of the Commission and whether the blocking of these websites should be mandatory for all Canadian ISPs.

Say…isn’t that what the Chinese do, more or less? Oh, wait…yeah, it is, as Ezra points out above. Censorship, plain and simple.

But remember, O Reader…Richard Warman prefers that you not call him a censor! Okay, fine, whatever. Were the CRTC to ban access, within some or all of Canada, to certain American websites, that would, by definition, be an act of censorship. By what name, then, shall we call someone who lobbies for just such an action to take place?

One of the strangest things about Richard Warman’s threatened lawsuit against me is his complaint that I dare to call him litigious and a censor. It’s strange because it’s so obviously a fair comment, based on the facts of his track record. But the really weird part is that he doesn’t see the irony in it. I mean, demanding that I censor my comment that he’s a censor? Or threatening that he’ll sue me because I say he sues a lot? It’s absurd, and I wonder if there’s anyone in his circle of friends who will tap him on the shoulder and tell him that. I doubt it.

…

So I’ve thought of another research challenge for readers skilled at Google and the Wayback Machine and who have some time to help: Let’s document every occasion that Warman has either filed a suit against someone or threatened to do so.

It will be useful to my case, because it will demonstrate just how censorious and litigious Warman really is, and that my comments about him were legally fair. I’ve got a ton of examples already, but I’m sure there are many more.

If you can, O Reader, give the man a helping hand!

Update: Welcome, Steynians!

What happens when an ex-employee of the human rights commission (HRC) attempts to sue someone for defamation, having previously only had experience with the legal fiction of the human rights kangaroo courts in Canada (where evidence is meaningless and where a person can be found guilty if it can be established that he has, or might one day, hurt the feelings of someone else)? Especially when the someone being sued is a defamation lawyer with a “take no prisoners” attitude?

See for yourself:

I’m a defamation lawyer myself, and if I had to sum up Canadian law in four words, it would be this: get your facts straight. If your facts are correct, you have the right to your opinions on those facts — even extreme or radical opinions. So [Richard Warman]’s complaint isn’t really a lawsuit. It’s a letter to the editor.

And that’s the problem here. Warman is so used to operating in kangaroo courts — so used to human rights commissions that are run by non-lawyers, with arbitrary procedures, no fixed rules of evidence, no meaningful standards of guilt, where truth is not a defence and fair comment doesn’t exist — that he thinks he can take his Orwellian thinking out from the cloister of these star chambers into the real world. That’s my earlier point: I don’t think Warman even knows how ridiculous he looks.

The doctrine of fair comment

Warman may not share my opinion that he wastes taxpayers dollars, or acts as a censor, or that human rights commissions are a joke, etc. And his opinion might even be more reasonable than mine (it’s not). But it’s not unlawful for me to have my views. Not that my views are particularly radical — many of my exact words are echoed in the language used by PEN Canada, the CAJ, the head of the Canadian Civil Liberties Association, Noam Chomsky(!) and a dozen newspaper editorial boards across the country. That might hurt Warman’s feelings, but hurt feelings aren’t the test of defamation law.

Most everything in those blog posts was my political opinion. I did assert a few facts: I wrote that Warman encouraged some young ruffians to assault a man with a pie. That’s not a matter of fair comment, it’s either factually accurate or not. Gentle reader, click here and tell me whether that fact is true or not. I’m just not sure how Warman can deny that, but it will be interesting to watch him try.

The other factual assertion I made is that Warman himself planted anonymous posts on the internet sites that he was stalking for a complaint. Again, it’s pretty tough for Warman to take issue with that, given that both he and commission staff admit under oath that’s how they operate.

Well, Warman has tried to deny it in the past. But that didn’t really work. Here is an interesting exchange before the tribunal: at first Warman denies that he posted anonymous, provocative comments to a website he took to the commission; then, when confronted with the fact of it, he sheepishly admits to that practice. If you’re bored, you can read this lengthy affidavit by the webmaster proving that the bigoted remarks about Sen. Anne Cools were made by Warman himself. Here’s a timeline of facts related to the Anne Cools remarks.

Give ‘im hell, Ezra.

Update: Welcome, Steynians!

Ezra Levant’s proposed new initiative:

A couple of weeks ago I wrote on my personal blog about the need for Canadian bloggers to form a mutual aid society to protect themselves from unwarranted attacks on their freedoms.

I have recently experienced one form of those attacks — an out-of-control government ‘human rights commission’ grinding me through a punitive, costly and arbitrary process for two years because I published cartoons that allegedly hurt someone’s feelings. And I’ve observed the other form, much more frequently: in the past few weeks alone, I’ve seen 1, 2, 3, 4, 5 baseless threats of defamation against Canadian bloggers (plus 6, 7 against me), none of which have real merit, but all of which are designed to frighten bloggers (usually conservatives) into censoring themselves.

The common thread amongst all of these threats is that they’re not legitimate legal actions to remedy a real tort committed by bloggers. The blog posts in question all contain true facts and fair comments; no real defamation action lies against any of them. These threats are intimidation tactics — bullying — dressed up in legal robes.

And, unfortunately, they often work. Not because bloggers make a thoughtful decision, with competent legal advice, that they ought to retract a truly false and defamatory statement, but because bloggers make a panicked decision, without legal advice, in fear of the cost and hassle of a lawsuit, and in the hopes of appeasing the threatener. Rudyard Kipling wrote a poem about this sort of thing.

He’s even got his first case, before the Union has been formalized.

One one hand, it’s sad that something like this has to be announced and advanced. Not that it’s without its reasons or justifications, of course, and certainly in Canada bloggers like myself have more than ample reason to fear the possibility of frivolous legal action. More importantly, bloggers like myself are, for the most part, not legal experts, and won’t be well-equipped (as a general rule) if in fact someone like Warren Kinsella or Richard Warman files a suit (or a human rights complaint) against us. In that regard, at least, the need not only for a legal defence fund, but for legal advice, is obvious.

On the other hand, though, something like this could also serve as a focal point for the /HRC issue in Canada for as long as it takes to resolve the manner in the only acceptable way (i.e. the complete dissolution of HRCs in Canada, and the removal of Section 13 from the Canadian Human Rights Act). Disparate blogs commenting on the issue are all well and good, but a concrete organization devoted to freedom of expression is even better.

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.