Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 9/18/84; site kontron.UUCP Path: utzoo!lsuc!watmath!clyde!burl!ulysses!bellcore!decvax!decwrl!amdcad!amd!pesnta!pyramid!voder!kontron!cramer From: cramer@kontron.UUCP (Clayton Cramer) Newsgroups: net.politics Subject: Re: Television coverage and censorship in Canada (in net.columbia??) Message-ID: <556@kontron.UUCP> Date: Sun, 2-Mar-86 16:49:23 EST Article-I.D.: kontron.556 Posted: Sun Mar 2 16:49:23 1986 Date-Received: Thu, 6-Mar-86 19:17:42 EST References: <6396@utzoo.UUCP> <514@kontron.UUCP> <1132@lsuc.UUCP> Organization: Kontron Electronics, Irvine, CA Lines: 229 > In article <514@kontron.UUCP> cramer@kontron.UUCP (Clayton Cramer) writes: > >Just because his beliefs are repugnant doesn't justify throwing someone in > >jail for expressing those beliefs. That's something that totalitarian > >governments do. > > First of all, it was a unanimous jury conviction, so it wasn't just > a "government" action. More importantly, Zundel was not convicted > because his beliefs are repugnant. He was convicted for publishing > false statements, known by him to be false, which were seen as a > threat to society. The claim that the Holocaust is a hoax isn't > made in isolation. It's made together with the allegation that the > Holocaust was "dreamed up" by Jews to get money out of Germany. That > is equivalent to calling all Jews thieves and liars, and goes, in > many people's opinions, beyond the legitimate bounds of free speech > and into group libel. > > The below is an article I posted some months ago. Since the issue > has arisen again and some people now on the net obviously haven't > seen it, here is it again. > > ''''''''''''''''''''' > Newsgroups: net.politics,net.legal,can.politics > Subject: Hate literature laws no violation of freedom of speech > References: <195@pyuxh.UUCP> <10451@ucbvax.ARPA> > > 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. > > The following column appeared in The National, the newspaper of > the Canadian Bar Association, September 1985 (p. 37). It was > written by Albert S. Frank, a lawyer in Edmonton. > Reprinted with permission. > > * * * * * * > > It is inherent in the notion of human rights that the rights > of an individual must be restricted for the sake of other > individuals. Your right to freedom of action must be limited > out of respect for my rights. If we allowed you a completely > unfettered right of freedom of action, you could physically > attack me or violate my rights in other ways. Surely a respect > for your rights does not require an utter contempt for my rights. > The important phrase here is "freedom of action". Free speech is not a physical attack. Physical attack cannot be ignored -- it requires either suffering injury or fighting back. If someone insults you, you can ignore them without measurable injury. > If we take the contrary view, that your right to freedom of action > is absolute, then we are saying that I have no right, not even > a right to live, since you could use your absolute freedom of > action to murder me if you wished. A general respect for human > rights therefore requires that rights be restricted, not absolute. > The last sentence, in effect, says, "Human rights does not equal rights for individuals." This is almost an oxymoron. A true democracy therefore has no need for human rights, since the majority makes decisions for the good of all. > Like other rights, freedom of speech can be abused to harm others. > A person who uses words to threaten physical violence to get money > is committing robbery, and thereby violating the rights of the victim, > every bit as much as if he said nothing and, instead, waved a weapon > and gestured at his victim's wallet. The criminal law makes this > and other abuses of freedom of speech illegal. > Bullshit. If someone walked up to you and said, "Give me your money", but there was no way for them to injure you (for example, a police officer standing there, and the person making the threat was clearly unarmed, and physically incapacitated so as to be no threat with their fists), it would not be credible that they were robbing you. You would ignore them, and if you used force against them, YOU would be in trouble. > Hate literature is another abuse of freedom of speech which violates > the rights of its victims and can therefore properly be restricted. > 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. > Protection from defamation is a monetary damage issue. Also, Zundel's assertions, according to this article, referred to particular Jews at a particular time. Unless Zundel's book claimed that ALL or at least MOST Jews in the world today were involved in the conspiracy he imagines, there is no way that a person could claim to be personally defamed. And if Zundel made such a sweeping assertion (quite possible, he sounds like a kook), no rational person would believe it. How can it be damaging then? > [some material excerpted concerning protection of politician's reputations] > If an individual is entitled to protection against defamation, > surely a large group of individuals should be entitled to protection > as well. Unfortunately, our civil law is not presently a very useful > tool for the protection of the rights of groups. In Canada there > are severe restrictions on class action lawsuits. Furthermore, > the law of defamation itself is designed for the protection of > the individual plaintiff, not the group of plaintiffs. > A deficiency in civil law is no argument for a bad criminal law -- it's an argument in favor of correcting the civil law. > As was stated recently in the case of _Booth v. B.C.T.V. Broadcasting > System_, 139 D.L.R.(3d) 88 at 92, in cases where the words complained > of are clearly defamatory the issue "is whether the words were > published of and concerning the particular plaintiff who is claiming." > > 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. 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. > Quite a leap there. In civil law, the two parties MAY be roughly matched in terms of resources to fight their cases. Frequently they are not. In criminal law, the defendant NEVER has the resources available to fight a case that the prosecutor has. The government therefore has a substantial advantage (hence, the different levels of proof required for a decision in civil and criminal cases.) As an example, consider the Nixon Administration's attempts to bleed the anti-war movement to death in the early 1970s by having them fight grand jury indictments all over the United States. There needs to be a darn good reason to give a government excuse to prosecute a criminal case. Saying nasty things about someone else somehow doesn't seem in the same category as armed robbery and murder. > 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. > Millions died in China and the Soviet Union for holding differing political views or belonging to the wrong economic class. I don't see the same approach being pushed for these groups. > 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. > 1 = 2 again. The first example is purely a civil case: A sues B for monetary damages -- B doesn't go to jail for saying A sells junk. > Nor should we fear that hate literature laws will inhibit proper > discussion of public issues. A true statement, however harsh, > may always be stated. Furthermore, the discussion of public > issues does not require personal attacks. A person could not > be sued or prosecuted for a scathing and inaccurate criticism > of government policy. A citizen has the right to be wrong about > a public issue. > > 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. > Our devotion to democratic discussion does not require that we > permit false _ad hominem_ attacks on politicians or on anybody else. > Personal attacks are valid, under some conditions. Politician Smith runs for public office. Smith has a record of financial chicanery and personal dishonesty. Smith's personal disintegrity is a valid issue since he will be holding a position of public trust. > The same principles justify the civil law of defamation and the > criminal laws concerning hate literature; they stand or fall > together. 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. > Perhaps, but the relative positions of power in civil vs. criminal cases make a world of difference. A sues B to stop B from saying something. A could also sue C, D, E, F, etc. to stop them from saying the same thing (which might be true). Eventually, unless A is a very wealthy person or a large corporation, A will run out of money to fight these cases. The government does not run out of money. It can even make truthful statements so expensive in money that only a fool will say them. > 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. > > Until or unless the civil law is reformed, it is good that the > criminal law is available. We must not forget the seriousness > of group defamation. The fact that the hate propagandists use > words in their attacks does not make their behaviour any less a > violation of rights or any less serious than smashing synagogue > windows or burning a cross on a lawn. > Oh come on. Does anyone really believe this? > * * * * * * > > (The National, Canadian Bar Association, September 1985. Copied > with permission.) > > Dave Sherman > The Law Society of Upper Canada > Toronto > -- > { ihnp4!utzoo pesnta utcs hcr decvax!utcsri } !lsuc!dave Clayton E. Cramer "A new way of thinking Beyond Gravity"