Free speech on the ropes

Calling someone a bastard may not be the nicest thing, it may even hurt their feelings, but it may in fact be true, in the technical sense, if the person’s parents were never married. Truth is a great defence. It was truth that saw Oscar Wilde lose in his lawsuit against the Marquis of Queensbury. Queensbury had called Wilde a sodomite by posting a notice of such on a sign inside a prestigious gentlemen’s club in London. Wilde who was engaged in an affair with Queensbury’s son, sued the Marquis but lost because what the Marquis had said was true.

Truth has always been the journalist’s best defence as they seek to expose the failings of politicians, governments or societies leaders. Against a torrent of highly paid lawyers, journalists have always been able to rest on truth. Truth, as the Good Book says, will set you free. Except in Canada.

Those complaining don't ever have to prove that hatred and contempt actually occurred, just that it is likely to have happened or will happen in the future.

A quasi-judicial process few Canadians have paid attention to over the last few decades is generating much international coverage of late due to at least one high-profile name, Mark Steyn (pictured on home page). The man once called "the columnist to the world", published everywhere from Oregon to Jerusalem, London to Sydney, is at the centre of a series of complaints to the Canadian Human Rights Commission and two of their provincial counterparts over an excerpt published in Macleans magazine of Steyn’s book America Alone. Steyn is accused of promoting hatred and contempt towards Muslims and of spreading Islamaphobia.

Except that due to the nature of Canada’s human rights laws, those complaining don’t ever have to prove that hatred and contempt actually occurred, just that it is likely to have happened or will happen in the future.

As if being accused of causing something that may not actually have happened is not bad enough, a recent filing by Canada’s Justice Department in another case stated quite boldly "truth and fair comment are no defence". The filing, submitted in a case against a white supremacist accused of spreading hatred on the internet, goes on to say that the jurisprudence supporting this claim is settled. Given the near 100 percent conviction rate of those accused of spreading hate on the internet in Canada, it appears the "truth is no defence" claim will carry the day. So to sum up, in Canada, you can face a tribunal hearing for writing something that is only "likely" to expose a group to hatred and contempt. The fact that what you write may be true or simply be a fair journalistic comment, won’t help you fight those charges.

Now before I explain why all of this prosecution of thoughts and writing in Canada matters to the rest of the world, let us consider the implications. Over the past number of years, many critics of the decision of President Bush to go to war in Iraq have asked why Saudi Arabia was not targeted. Saudi Arabia, after all, was home to 17 of the 19 hijackers that perpetrated September 11th. To make such an argument in Canada could be considered hate speech. Writing that 17 of the 19 September 11th hijackers were Saudis could see you hauled before a human rights tribunal and the fact that what you wrote is true would not matter.

In Great Britain, truth was no defence for American researcher Rachel Ehrenfeld who published Funding Evil: How Terrorism Is Financed — and How to Stop It. Ms. Ehrenfeld was sued in Britain by a Saudi named Khalid bin Mahfouz on the grounds that the book was libellous against Saudis. Mr bin Mahfouz doesn’t live in Britain but that hasn’t stopped him from suing and collecting awards against the authors and publishers of 36 other books earning him the nickname, the Libel Tourist. In Ms Ehrenfeld’s case, a British judge ordered her to apologise and pay Î 110,000 in damages. Books about Saudis and terrorism are now potentially dangerous in Britain and unlikely to be published.

Writing in the New York Sun, Roger Kimball, editor of the New Criterion and publisher of Encounter Books wrote "I recently received a message from someone who helps distribute our books in Britain: ‘Can you please let us know if there are any references to Saudis and terrorist[s] in the book. We are just concerned that this book could potentially create libel lawsuits as it could offend Saudis living in England…’" Kimball has just published Willful Blindness: Memoir of the Jihad by Andrew McCarthy. The book is written by the lawyer that helped prosecute Omar Abdel-Rahman, mastermind of the 1993 World Trade Centre attack. Should the book garner any attention in Canada or Britain, Mr Kimball and his firm could find themselves in trouble.

Again, it might be hard to see how this impacts America, but then again the Romans had trouble seeing how the sacking of their outposts might one day lead to the Eternal City being overrun by Visigoths. Sales of American books in Canada account for about 10 percent of all sales; given Britain’s bigger population , one would expect British sales of American books to be 10 percent or greater. What publisher will take a risk on a controversial book if they know 20 to 30 percent of their potential sales are already cut off and libel tourists like Khalid bin Mahfouz wait to collect rich judgements from friendly jurisdictions, even if, as in Ms. Ehrenfeld’s case, the book isn’t even published in Britain?

Many writers when looking for a quote to defend free speech turn to Voltaire, I’ll offer you a little JFK. "We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people." Canada and Britain are now obviously nations afraid to let their people judge truth and falsehood. Could America be next?

Speaking with Mark Steyn at an event in Ottawa, I explained my sacking of Rome theory; that these small battles against free speech in nations such as Britain and Canada were like the battles that led up to the sacking of Rome. Those battles weakened the Empire and eventually led to the fall of Rome itself. Steyn agreed. America, he says, is foolish to think that it can and will prevail as the one outpost of free speech if all the other Western nations fall. Already campus speech codes, hate speech laws, historic revisionism and multiculturalism have left Americans unsure of what is acceptable to say, think or write. If the trends in Canada and Britain continue, people in America may soon be asking if what they want to say, think or write is legal.

Brian Lilley is Ottawa Bureau Chief of Astral Media Radio


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