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Path: utzoo!utcsri!utai!utflis!dennis
From: dennis@utflis.UUCP (Dennis Ferguson)
Newsgroups: net.politics
Subject: Re: Gone with the wind.
Message-ID: <535@utflis.UUCP>
Date: Tue, 22-Oct-85 02:28:51 EDT
Article-I.D.: utflis.535
Posted: Tue Oct 22 02:28:51 1985
Date-Received: Tue, 22-Oct-85 07:47:23 EDT
References: <913@decwrl.UUCP>
Reply-To: dennis@utflis.UUCP (Dennis Ferguson)
Organization: Mechanical Engineering, University of Toronto
Lines: 149
Summary: 

I have tried hard not to quote Mr. Black out of context, but this
was a huge article and I had to cut something.

In article <913@decwrl.UUCP> black@pundit.DEC (America first, without apologies.) writes:
[concerning an article from a Canadian legal journal posted by Dave Sherman]
>>Subject: Hate literature laws no violation of freedom of speech
>>Posted: 11 Oct 85 16:45:26 GMT
>> 
>>Rick McGeer has expressed the opinion that convictions under
>>the Criminal Code of Canada for publishing hate literature or
>>for publishing false news are a violation of the right of
      ^^^^^^^^^^ ^^^^^ ^^^^
>>freedom of speech under Canada's Charter of Rights and Freedoms.
>>I do not agree.
>
>     I agree with Mr. McGeer.

Look carefully.  Mr. Sherman is noting the existance of a second
law in Canada prohibiting the publishing of false news.  This is somewhat
confusing since the article he cites deals solely with the hate
literature laws.

>>Hate literature violates a right which our common law has long
>>recognized, a person's right in his reputation.  According to the
>>well-established law of defamation, a person has a right to legal
>>protection from those who would attack his reputation, just as he has
>>a right to legal protection against those who would attack his person.
>
>     Of course.  A just person, who has done no wrong, does not deserve to 
>have his reputation defamed.

Sounds reasonable to me, too.

>>According to Black's Law Dictionary (5th ed.), "Defamation is that
>>which tends to injure reputation; to diminish the esteem, respect,
>>goodwill or confidence in which the plaintiff is held, or to
>>excite adverse, derogatory or unpleasant feelings or opinions
>>against him ... unprivileged publication of false statements."
>
>     Aaahhh, sooo....A DEFINITION!!!!   Here's the key...FALSE STATEMENTS
>constitute the defamation.  False statements, not those which are true.

Agreed
 
>     If the material is false, a rights violation has occurred.  BUT WHAT IF 
>THE STATEMENTS ARE TRUE??????
>
>     And who is to define truth?????

Who defines truth in a murder trial where the defendent protests his
innocence while the prosecutor presents evidence of the defendent's
guilt?  Often, a jury of the defendent's peers.  Truth can sometimes
be an elusive thing.  In a legal system that requires that the truth be
found, a jury of disinterested citizens seems about as good a solution
as you're going to get, to me.

>>If an individual is entitled to protection against defamation,
>>surely a large group of individuals should be entitled to protection
>>as well.  
>
>     Yes, protection against FALSE statements is justified.  But who defines 
>truth?  Where is the governing General Definition that draws the line between 
>truth and lies?  Without that definition for protection, abuse is rampant.

See above.  While they are not perfect, there are built-in protections
against abuse.  A jury is one of them.

>     The key here is that we have defined "defamatory" as false statements.  
>FALSE statements.  FALSE propoganda.
>
>     But what if the statements are true?
> 
...
>
>     Zundel dared question "generally accepted" history.  he attempted to 
>bring before the public scrutiny some serious questions about the Holocaust.  
>If his material were proven true, it would shed doubts as to the legitimacy of 
>the Israeli State.  Such a question is in fact a public issue.
>
...
>
>     In the cases of Mr. Zundel and Mr. Keegstra, they advocated an opinion,
>in good faith, about a public issue that was contrary to generally accepted 
>history.  

In the case of Mr. Zundel, I suspect you are misinformed about the
details of his prosecution.  Mr. Zundel was *not* prosecuted
under Canada's hate literature laws.  While interested parties would
have preferred this, prosecution under those laws would have required
action on the part of Attorney General of Ontario, action which was not
forthcoming.  Instead, he was brought to trial under a much older law
which prohibits the publication of news which you *know* to be false.  The
action was brought after a complaint by an individual, a lady who was a
survivor of the holocaust.  Note the emphasis on the word `know'.  The
prosecution was required to prove not only that the version of history
Mr. Zundel published was factually incorrect, but that Mr. Zundel *knew*
it was incorrect.

It is a long time since I read a summary of the trial and my memory is
bad.  I do remember that the prosecution's case was based not on showing
that the historical facts that Mr. Zundel published were wrong (for the
most part they weren't), but that Mr. Zundel systematically suppressed
from his analysis those facts that did not support his conclusions.  A
number of extremely blatant examples of this were brought forward, where
Mr. Zundel was shown to have extracted a few figures from a single source
while ignoring the bulk which were very much unfavourable to his thesis.
Zundel even admitted knowlege of some of the facts he suppressed; the
silly ass was too proud of his skills as a `historian' to deny he knew
something.

The Zundel trial was not about `hate literature', it was about Zundel
publishing lies.  And a jury of his peers found that Zundel, beyond a
reasonable doubt, could not have honestly reached the conclusions he did
about the holocaust given the facts he knew but did not bother to mention.
In effect, Zundel was a liar.

>     DO THEY NOT HAVE THE RIGHT TO BE WRONG ABOUT A PUBLIC ISSUE???????
>
>     DO THEY NOT HAVE THE RIGHT TO PUBLISH CONTRARY OPINIONS???????

They do.  But, in the case of Zundel, being `wrong' or holding `contrary
opinions' was not the issue, as much as you might wish it to be so.  Mr.
Zundel, in the opinion of 12 citizens whose duty it was to judge, was lying.
Perhaps you came by your contrary opinions honestly.  Mr. Zundel did not.

>     Yes, Freedom of Speech clearly is "dead as a doornail" in Canada.  Sic
>Transit Gloria Mundi.

To be honest, I got busy about the time of the Keegstra trial and didn't
follow it, so I can't really comment on the how its outcome might have
induced the above comment.  I am certain you could not have arrived at
that conclusion from a close reading of the Zundel trial.  My impression
was that Zundel himself could not have believed a word he published.
"Beyond a reasonable doubt".

My other impression of that trial was that Zundel was not particularly
well defended, and that if he had been it would have been much harder,
perhaps impossible, for the prosecution to get a conviction under this
law.  To show that Mr. Zundel did not believe what he was saying should
have been much harder than it was.  If I recall correctly, it is somewhat
ironic that a local lawyer of considerable repute who has successfully
defended quite a large number of "rights and freedoms" cases in the past,
offered his services to Zundel.  The lawyer's name is Eddie Greenspan
(? please correct me if I'm wrong).  Zundel rejected him on the basis
of the man's religion.  Zundel is now in jail.  All in all, I think Zundel
is very much the architect of his own misfortune.  You should find a
better martyr.
--
				Dennis Ferguson