Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 9/18/84; site lsuc.UUCP Path: utzoo!utcs!mnetor!lsuc!dave From: dave@lsuc.UUCP (David Sherman) Newsgroups: net.politics,net.legal Subject: Re: Gone with the wind. Message-ID: <863@lsuc.UUCP> Date: Tue, 22-Oct-85 09:25:31 EDT Article-I.D.: lsuc.863 Posted: Tue Oct 22 09:25:31 1985 Date-Received: Tue, 22-Oct-85 11:16:11 EDT References: <913@decwrl.UUCP> Organization: Law Society of Upper Canada, Toronto Lines: 312 Don Black writes, over and over and over (in response to my posting an article reprinted from the Canadian Bar Association newspaper): > OK. Fine. Who determines the definition of Hate Literature? Who sets > the standards? Who determines what is obnoxious? Who determines repugnancy? > What if the Hate Literature just happens to be aimed at a particularly corrupt > political party that just happens to be in power? The definition is set out clearly in the Criminal Code of Canada. Several extremely difficult tests must be satisfied. A jury of 12 unbiased ordinary men and women determine whether those criteria have been satisfied. > "Oh, that's Hate Propoganda you're spreading. We don't like that. So > Mr. Publisher, here's a "tenner" for you. Publish from your cell." "We" must be a jury, which is required to be UNANIMOUSLY convinced beyond a reasonable doubt that the publication was false, was published wilfully, was published by the accused who knew it to be false, and so on. > And what if the Hate Literature later turns out to be the truth? That's what the jury system is for. It was not made public until after the Zundel trial that Judge Locke refused a request to take judicial notice of the fact of the Holocaust. This forced the fact of the Holocaust to be proven at the trial as a necessary ingredient of Zundel's conviction. That the Crown succeeded, showing Zundel's publications to be false, is evident from the unanimous jury conviction. > Hate Literature is a pretty broad term. Somebody needs to define it > better. Zundel and Keegstra were convicted under two very clear sections of the Criminal Code - much clearer than just "hate literature". See ss. 177 and 281.2 of the Criminal Code of Canada. Those sections are drafted in a way that provides numerous defenses to the accused, including, of course, truth. > Now, what of the person who has lived in a community for decades, never > bothered anyone, contributed to charity, went to church on Sunday, and > generally was a nice guy, but in reality, he's wanted for murder? Is it then > defamation of character to expose the fact that he is a criminal? Not at all. Don Black and I agree that truth is a complete defense to any charge under the above sections of the Criminal Code. But suggesting that truth was a relevant defense in the Zundel and Keegstra cases is, obviously, a red herring. > Aaahhh, sooo....A DEFINITION!!!! Here's the key...FALSE STATEMENTS > constitute the defamation. False statements, not those which are true. Agreed. > The Wanted Murderer stands up and says "You're a liar! I did nothing > wrong! You're a Hate-monger." If the WM can prove same, he can recover for defamation of character. > There's that word FALSE again. Yes, indeed. > If the material is false, a rights violation has occurred. BUT WHAT IF > THE STATEMENTS ARE TRUE?????? See above, and stop misleading people. Come on, Don, do you still claim the Holocaust didn't happen? Don't be totally stupid. I see you still haven't taken up my challenge to go speak to ANY Jewish person over 60 of Eastern European ancestry and ask them about what happened to them and their family in the Holocaust. Or are we all liars? > And who is to define truth????? Again, a jury. The same questions apply to any other crime. > How can a controversial topic be adequately discussed if it cannot be > published without fear of prosecution? The fact of the Holocaust is not a legitimate controversy. "Discussed"? Sure. Questions can be raised, and they can be answered. But when you DENY the fact of the Holocaust, you in the same breath accuse a large segment of society (Jews) of being liars. That is racism, anti-semitism and hate propaganda. Now, shut up. > Politicians who have skeletons in their closets should consider not > running. True. But politicans with no skeletons, whose opponents fabricate skeletons, are entitled to protection through the law of defamation. That was the point made in the article I quoted. > 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. Nonsense. See above. That's what we have juries for. > Class action suits usually benefit lawyers the most, anyway. Which might be a reason why they're not widely permitted in Canada. > Exactly. If the plaintiff cannot show that he suffered a loss, then > there is no suit. Which is why it's appropriate to take harm against a large segment of society away from the civil courts and into the criminal courts. > >If the civil law cannot protect against a violation of the rights > >of groups of citizens, then it is appropriate for the criminal law > >to do so. > > Very appropriate. No question. > > > >It is especially important to do so since hate literature > >has the potential to cause much greater harm than an attack on a > >particular individual. > > Yes, because defamatory, untrue statements can incite others to do harm > to otherwise a large number of innocent individuals. > > >Few people in human history have faced death because of defamatory > >statements made particularly against them but millions of people have > >been killed because they happened to belong to an ethnic or religious > >group which had been the object of hate propaganda. > > The key here is that we have defined "defamatory" as false statements. > FALSE statements. FALSE propoganda. Yes, Don. I'm losing my patience here. You're clearly insinuating that Zundel's publications were, in your view, true. Well, answer this: *************************************************************** IF ZUNDEL'S PUBLICATIONS WERE TRUE, WHY DIDN'T HIS DEFENSE OF TRUTH SUCCEED IN RAISING AT LEAST A REASONABLE DOUBT IN THE MIND OF AT LEAST ONE OF THE TWELVE JURORS? *************************************************************** The answer is self-evident. Zundel's attempt (which was put forward strongly by his counsel in court) at showing the truth of his publications failed utterly. Since that was not enough to convince Don Black, I have to assume that Don Black is either totally and abysmally stupid or a racist anti-semite of the worst kind. I suspect the latter. > But what if the statements are true? See above. > >However, even leaving aside the most extreme results of hate > >literature, it would be absurd if a man could sue to protect > >his reputation from an accusation of selling shoddy merchandise, > >but he and his fellow victims could not obtain either civil or > >criminal protection against defamatory statements accusing them > >of every evil act known to mankind and of being behind every > >disaster which has befallen the human race in the last few centuries. > > If they suffer no loss as individuals, why should they be allowed > to sue? Can they show that the untrue statements caused a loss of profit? It's precisely because the statements cause harm to the group as a whole, and not to the individual plaintiff, that it's appropriate to have a criminal remedy. No-one is seeking damages from Zundel. We were simply trying to stop him from publishing his damaging filth. > And what if the statements are true? See above. > >Nor should we fear that hate literature laws will inhibit proper > >discussion of public issues. > > Oh, yes we can have such fears. Why? Nothing in what you've written gives the slightest cause for concern, given the protections allowed by the legislation and by the jury system. > Zundel dared question "generally accepted" history. he attempted to > bring before the public scrutiny some serious questions about the Holocaust. BULLSHIT. Zundel didn't "question". The evidence is so overwhelming to anyone who investigates history that there is nothing to question. What Zundel did was falsely accuse the Jewish people of fabricating the Holocaust for material gain. His publications, if read by unknowing people who aren't familiar with history, can lead such people to believe that the Holocaust never happened and that Jews are thieves and liars. > 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. Fair enough. But he took that risk, knowing that he was publishing material that was not true. (The jury could not have convicted him without this essential ingredient being shown.) > >A true statement, however harsh, may always be stated. > > Certainly, since a true statement does not constitute defamation. My, my. We agree. > But any statement must see the light of day before its truth can be > determined. And publishers must have the right to print about controversial > issues without the fear of somebody making an arbitrary determination that > their material constitutes an untruth and is therefore Hate Literature. Red Herring again. If it's an "arbitrary determination", that arbitrariness is determined by an unbiased jury. A statement which is KNOWN to be false by the publisher (as Zundel's publications were) can't possibly fit into the above paragraph. > >Furthermore, the discussion of public issues does not require personal > >attacks. > > (My, my. Here's a jurist saying what I have been saying all along. Read > closely, Mr. Feingold, Mr Shindman, et alia.) In fairness to Mr. Feingold and Mr. Shindman, someone who makes it clear from his postings that he's a racist anti-semite (see above) is fair game for personal attacks. > My Gawd! If I criticize the Government for believing in the Holocaust, > it's OK. But if I criticize anybody else for believing in it, it's a crime! It's a crime when you call several million Jews thieves and liars. > And if I publish material about a public issue, that I in good faith > believe to be true, its' OK. But the author just said that it's a crime to be > wrong. Nonsense. Essential to the Zundel conviction was the fact that he knew his publications to be false. > >However, if a person goes beyond saying that he thinks a policy > >is wrong, foolish or appalling and makes personal attacks on the > >politicians promoting these policies, he may be sued and rightly so. > > Agreed. But only if the attacks contain FALSE information. Haven't we been over this already? > >The same principles justify the civil law of defamation and the > >criminal laws concerning hate literature; they stand or fall > >together. > > Yes. They clearly apply to PROVEN FALSEHOODS, proven beyond all doubt, > and not somebody's Generally Accepted concept of true and false. Exactly. Which is why we have the requirement of a jury being convinced unanimously beyond reasonable doubt. > >Those who are of the opinion that hate literature > >is an unacceptable restriction of freedom of speech must, to be > >consistent, urge that the tort of defamation be abolished for > >precisely the same reason. > > A good argument. But to be consistant, we must clearly define Hate > Literature as information that is proven to be false. That's already clearly defined and was an essential ingredient of the Zundel and Keegstra convictions. > >It is possible to believe that our defamation and hate literature > >laws are acceptable in principle but unsatisfactory in practice. > >I have spoken to many people who think that it would be better > >to sue hat propagandists than to prosecute them, a view which I > >share. The civil law should be reformed to allow class action > >lawsuits against those who defame groups. > > Wrong. This leads to Persecution, rather than Prosecution. The > proverbial shoe can easily end up on the other foot, as well. Better to leave > well enough alone. My own feeling is that where the tolerance and community of a multicultural society is threatened, the criminal law is the most appropriate remedy. No-one wants damages from Zundel. We're not out for his money. We want to stop him from encouraging non-Jews to hate Jews. > 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. Good faith was attempted as a defense and rejected by the jury in both cases. > DO THEY NOT HAVE THE RIGHT TO BE WRONG ABOUT A PUBLIC ISSUE??????? They do not have the right to spread material, which they know is wrong, for the purpose of fomenting hatred against Jews. > DO THEY NOT HAVE THE RIGHT TO PUBLISH CONTRARY OPINIONS??????? Opinions are one thing. Known falsehoods are another. > Yes, Freedom of Speech clearly is "dead as a doornail" in Canada. Sic > Transit Gloria Mundi. Gloria was sick on the subway on Monday? :-) (Don't worry, I've studied Latin and I do know what it means.) Freedom of Speech is alive and well in Canada. Freedom to spread lies about groups, for the purpose of stirring up hatred, is not. Dave Sherman The Law Society of Upper Canada Toronto -- { ihnp4!utzoo pesnta utcs hcr decvax!utcsri } !lsuc!dave