RSS FeedIs Obama Really About Change?
The success of Democratic Presidential Candidate Barack Obama can be attributed to his “change” message. In fact, for those that have been following along, it is clear that many American voters truly yearn for a genuine candidate.
Hillary and Obama are similar in most respects, but for his consistent message of change–Hillary’s loss can be attributed to this phenomenon.
Opposition to War in Iraq
Of course, many tout Barack’s stance against the Iraq War. However, I believe that he didn’t vote to authorize the Iraq war because he wasn’t in the Senate at the time. Yet, there is little doubt in my mind that if he was he would have voted to do so.
I’ve believed this from the beginning of his ascent, but now I have the proof to back it up. Well, it’s not actually evidence directly related to the Iraq authorization but it is an accurate indicator of the “flexibility”of Barack’s positions.
I’m referring to his convenient stances on divisive political issues, including support for the application of the death penalty in child rape cases and a “refining” of his Iraq withdrawal position. They are summarized well in this editorial from the New York Times.
Obama on Wiretapping
However, his reversal to support the FISA Amendments Act speaks most definitively on whether Obama is truly a genuine candidate and not just another politician.
FISA, the Foreign Intelligence Surveillance Act, is post-Nixon legislation designed to prevent government spying abuses and protect the privacy of Americans. It introduced strict procedures designed to comply with the 4th Amendment of the US Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Under the old FISA, the Foreign Intelligence Surveillance Court (FISC) would rule on government applications for wiretapping. The new legislation severely weakens the power of that court.
The government can first begin a wiretap and then ask the court to authorize it. While this was possible within the confines of the old legislation, if the court now denies the application the government can continue to spy on appeal, and if unsuccessful can still use the information collected.
According to the ACLU:
[the legislation permits] the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime…
The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.
In essence the government can apply for a warrant without, as the 4th Amendment dictates, “describing the place to be searched, and the persons or things to be seized.“
Retroactive Immunity
The other sticking point has been retroactive immunity.
The telecommunications companies that participated in Bush’s illegal wiretapping program of Americans post-9/11 are now off the hook.
During the primaries Obama campaigned against the FISA amendments and promised to filibuster any telecom immunity provisions.
Even though he ceremoniously voted to remove the immunity (an amendment he would have known would not pass), his support for the final bill is an indication of how much a real politician Obama is, and not quite the “change” candidate he has made himself out to be.
Man Busted for Impaired Operation of a Riding Mower
Last month, I discussed the potential criminal liability for the impaired operation of a motorized wheelchair in Canada.
On the topic of drunken care and control of non-traditional motor vehicles, the Grand Rapids Press reports the story of a Michigan man caught operating a riding lawnmower with a blood alcohol level of 0.441 percent. That level is over 5 times the legal limit in Michigan – 0.08. It’s also enough to put most casual drinkers into a coma.
Witnesses told police that Earhart earlier appeared to be slumped over the wheel of the mower as it went in circles in the intersection. He appeared to regain control at one point, but passed out again and was thrown to the ground. The mower continued until it struck a tree and lawn ornament. A witness shut off the engine.
The man has been criminally charged with drunk driving.
While this case may sound pretty funny, it’s obvious that the impaired operation of a riding mower in an intersection could easily have led to serious injury or death.
By the way, the man would have been criminally liable in Canada, too. While many people may like to have a few beers before mowing the lawn on a fine Sunday morning, operating a riding mower while impaired is an offence under section 253 of the Criminal Code of Canada.
Don’t drink and drive, kids!
Dimitris Lambrou, the Proud Lesbian Man
There are up to 350,00 Lesbians that are not gay.
Some of them are not seeking same-sex rights, but the protection of the word “lesbian” as a unique identifier of the inhabitants of Lesbos.
“My wife is a Lesbian, my daughter is a Lesbian and I am a Lesbian,” said the Greek man who started this amusing case in an Athens court last month.
Some History
Ken Blanchard provides some background,
According to Thucydides, it went down like this. The island of Lesbos rebelled against the Athenian Empire. The Athenians quickly subdued it, and then it was up to the popular assembly in Athens… to decide what to do with the rebellious islanders. The assembly voted to kill all the adult males, and sell the women and children into slavery. Frees up a lot of real estate. A boat was sent out (powered by rowers) to inform the marines on Lesbos as to their duty. But the next day a shrewd speaker convinced the assembly to reverse its vote. So they sent out a second boat, with a reward promised to the rowers if they got there in time. They did. And so the Lesbians were saved. The male Lesbians that is.
The name Lesbos apparently comes from the patron god of the island, who was the son of the Thessalonian hero Lapithos, or alternatively comes from the word for lush vegetation.
But its association with gay females is traced back to a poet that inhabited it named Sappho, who lived around 530-670 B.C.E. Sappho wrote on a number of subjects that included passionate prose that included targets of the same sex.
Rename the Island instead of Lesbians
Dimitris Lambrou, a contemporary inhabitant of the island, is petitioning the courts against the Greek Gay and Lesbian Union (Olke) from using the name “lesbian” in their name. He claims that the human rights of the islanders have been violated because it disgraces them around the world. Presumably, he would continue his case to the national and international level as well if he was successful.
Granted, Labrou does use some very strong language, claiming islanders have suffered “psychological and moral rape” from the “seizure” of the use of the word “lesbian.” Although women raping men is far more rare, it does happen.
One 36 year old woman in Spokane County in the U.S. was convicted in 1997 of torturing and raping a 42 year old man. South African papers reported last year that men in that country are being raped without the use of a condom, a scary proposition considering HIV/AIDS rates there. Then of course there are the stories of pedophilia, usually involving a female in a position of authority such as a teacher.
But rape of the psychological and moral kind, and corresponding damages, are unlikely even under Greek law.
Lambrou also claims the Greek government is so embarrassed that they are renaming the country’s third largest island as Mytilene.
There are several other reasons for viewing Labrou’s concerns with skepticism.
Not an Aggressive Act Against Women
Lambrou has explained his motivations,
I’m a fan of old values and traditions.
He publishes a magazine promoting ancient Greek culture and religion, and frequently criticizes the Catholic Church.
Jane Czyzselska says in Beware of Greeks bearing prejudices,
While lesbians in more than 80 countries are still denied their basic equal rights and more than 50 per cent of Britain’s lesbian youth are bullied, poor old Lambrou and his sister are upset that use of the word violates the human rights of the islanders and disgraces them around the world. Clearly, Hellenics hath no fury like a lesbian scorned.
However Labrou has said,
This is not an aggressive act against gay women. Let them visit Lesbos and get married and whatever they like. We just want [the group] to remove the word lesbian from their title.
A Genericized Global Trademark
The other issue with the claim is that the word “lesbian” is similar to a proprietary eponym, when a supposed brand name under intellectual property rights enters the colloqial landscape and synonmous with the general term.
Examples of genericized trademarks include Band-Aid, Kleenex, Jell-O and even Google. If your brand is too successful, you actually lose your intellectual property rights towards it.
He bases his claim on the first in time, first in right principle, which can still applicable for domain registration,
Lambrou said the word lesbian has only been linked with gay women in the past few decades. “But we have been Lesbians for thousands of years.”
The word “lesbian” has been used all over the world in this manner, and has been for some time.
Rictor Norton traces the use of the term in A Critique of Social Constructionism and Postmodern Queer Theory, “The ‘Sodomite’ and the ‘Lesbian,’ to at least 1732 in William King’s The Toast. By 1890, it had entered the Oxford University Dictionary, indicating a genericide for some time now.
Blanchard also adds the numerous sporting teams that use as their mascots or team names indigenous peoples and tribes that would seek similar intellectual property protection.
Absurd Consequences
Hauke Goos describes the scene in the court,
Lambrou sat in the gallery, surrounded by Greek gays and lesbians. He seemed convinced that the case was progressing in his favor. But then the opposing party’s attorney cross-examined the witness. What about twins whose bodies are joined at birth? he asked. Wouldn’t he, the witness, refer to them as Siamese twins? “Yes,” the witness replied. “Don’t you think the Siamese might object to that?” He hadn’t come to Athens to discuss the problems of the Siamese, the witness said curtly.
We can think of similarly absurd consequences, such as the residents of Dildo, Newfoundland issuing a suit against the sex toy industry. Steve Pitt commented in Legion Magazine in 1994,
No one can say with any firmness when and why Dildo acquired its name, but there are plenty of theories to choose from. Some say Dildo was named after a Spanish sailor of the same name who sailed the waters of the area. Others claim Dildo Bay was named after a ship’s part, a long metal cylinder. Still, others assert that Dildo, Nfld., is named for a certain species of cactus, the Dildo-Pear Tree, found only in the Caribbean. Still others hold to the theory that Dildo was named after an archaic term for a song’s chorus. The word is used that way by Shakespeare in A Winter’s Tale, Act 4, Scene 4: “…with such delicate burdens of dildos and fadings.”
And then there is the Amish town of Intercourse, Pennsylvania.
You can see where we are going with this…
Updates
The decision for the case was released July 18, and published today. The court rejected the plaintiff’s claim and said that the term could be used by gays, and said that Lambrou was free to appeal.
Michelangelo Signorile claims that Lambrou has been living in Canada for the past 30 years, which adds yet another interesting twist.
Back in Canada, legal lesbians are losing their jobs.
h/t Ainsley Brown of University of Westminster law and UWO law
Hateful Publications in B.C.
It’s true, we’ve heard this before. The Missing Sockpuppet compares the case of Abrams v. North Shore Press at a B.C. human rights tribunal to the complaint against Maclean’s.
The similarities are uncanny.
So why wasn’t there a campaign to end human rights commissions back in 1996? That’s right, there was – but it was all neo-Nazis and their sympathizers.
What’s perhaps most interesting is that the published articles in question, found at the end of the case, are less inflammatory than the contents in question from Maclean’s.
The Missing Sockpuppet has done an entire series on this subject.
So why the double standard? Some Canadians apparantly have less rights today in contemporary society than others, what the Missing Sockpuppet calls the turban effect.
But all the more reason for human rights tribunals to step in to create a more level playing field.
Review: How Many Clients Does it Take to Change a Light Bulb
How How Many Clients Does It Take To Change a Lightbulb? A Lawyer Strikes Back (Paperback) by Giovanni Diviacchi (Author)
List Price: $9.00
# Paperback: 38 pages
# Publisher: Dorrance Publishing Co. Inc. (March 19, 2006)
# Language: English
# ISBN-10: 0805970398
# ISBN-13: 978-0805970395
# Product Dimensions: 7.1 x 4.6 x 0.3 inches
Thomas Wisdom’s Review
I was able to devote about fifteen minutes to the book but managed to get through the first half.
As a legal professional, I was unmoved. As a comedy enthusiast, I was appalled.
I was fortunate enough to have a professor for one of my courses who told a law-related joke at the beginning of every class. Sometimes the class burst out in hysterics, and others, there was so much silence that you could hear a cricket chirp despite the absense of crickets in the room.
This book reminded me of the latter occasions. Throughout the entire thing–or at least the half I could get through–I didn’t even crack a smile.
The subtitle of “A Lawyer Strikes Back” suggests that the book is intended to be a retort to all of those anti-lawyer jokes we’ve heard a thousand times. Its general aim is to take a jab at clients. And that it does.
Unfortunately much of the book simply recycles old lawyer jokes, supplanting the word “lawyer” with “client.” And the original jokes simply aren’t funny. A lawyer making fun of clients for their ignorance of the law is like a mechanic doing the same because a customer doesn’t know how to dismantle a carburator.
It’s petty, especially considering that most of the anecdotes that drive a lawyer’s frustration with clients are second-hand, because let’s face it. Clients, generally speaking, aren’t that bad. They also pay your bills. So shut up and fix the bloody carburator.
On top of the substantive weaknesses of the jokes (primarily that they aren’t funny), there are procedural weaknesses as well. I use these two terms, of course, because they are beaten into law students from day one to graduation and I’m trying to relate to my audience.
Now this piece wasn’t meant to be a review of the editor, but for God’s sake you don’t even have to work in order to recognize a poorly worded joke that could have been so much better if written properly. I didn’t.
Having read the first half of the book, I decided to skip to the end to see if the material got better as I went along. You know. Like the first two Godfather movies. But those movies started out good and still got better so perhaps there’s no grounds for comparison.
This book was more like Godfather III. It sucked in the beginning, it sucked in the middle, and wouldn’t you know it… it sucked in the end.
Allow me to get positive for a moment.
I’ll admit that, as much a comedy buff as I am, I’m no comic myself and I recognize how difficult it is to produce original material and perfect its delivery. Keeping that in mind, I can imagine instances in which most of the material in this book could be funny if delivered perfectly.
Some jokes are funny simply by virtue of how truly unfunny they are. Others can be made good by the right person under the right circumstances. Granted, it’d be a stretch with this material but anything’s possible. And some of the jokes have, buried deep inside them, little commentaries about the legal profession that could at least tickle a lawyer’s funny bone (while his/her wife/husband roles their eyes).
Perhaps the flaws lie with me. Maybe law school’s made me so jaded that I can’t laugh at all anymore. Come to think of it… I haven’t had a good laugh in a while.
Lawrence Gridin’s Review
Like Thomas, I pondered whether the jokes would be better if delivered verbally.
I solicited the help of a friend to listen to me telling the jokes. We both agreed that most of the jokes fell pretty flat, whether read to oneself or told to others.
Here are some examples:
“The Attorney asked the client: ‘Why did you decide to divorce your husband?’
She replied, ‘Beats me.’
Q: What’s the difference between a member of Congress and a client?
A: One finds ways to pass laws, the other to get around them.
The surest sign that a client is in love is when he comes in to divorce his wife.”
After getting about halfway through the book, I realized that the quality of the jokes was not improving. I was honestly not inclined to finish it, which is pretty sad considering the book is only 32 pages long!
Don’t get me wrong. It’s not a terrible book. There are good jokes here and there. Some made me smirk. A couple made me actually laugh.
But ultimately, I cannot see why anyone would want to pay money for a 32-page hit-or-miss joke book.
Omar Ha-Redeye’s Review
Unlike “my friends,” I probably have a slightly different sense of humour. I know that humour can and often is used in some very hurtful ways. And for whatever reason, that type of hurtful humour is usually the most popular among today’s youth.
In contrast, this book had a lot of good clean fun. The only person this would likely hurt is any lawyer so bold as to offend a client by telling one of these jokes.
Which brings me to the purpose of such a book. There is no way that any astute lawyer involved in client development would use these as ice breakers.
But when constantly bombarded with anti-lawyer rhetoric (can we establish that as an analogous group by any chance?), this book might provide some reprieve. I can see a fuming advocate retreating back to their office, opening their top draw and pulling this out, a smile slowly spreading across their face.
Sure, a lot of these jokes are recycled. It doesn’t make it less appealing when your self-esteem hits the floor. And it’s probably better in small doses, administered at times of need, rather than reading it cover to cover.
In short, it’s a groundbreaking piece that screams that the lawyer will be the victim no more.
Just don’t do a sequel to “A Lawyer Strikes Back” with a title “Return of the Lawyer,” or even I will join the cynical bandwagon.
Toronto is Canada’s Safest City?
Below is a rather ironic screenshot from the front page of the Toronto Star’s website just after the release of a report claiming that my beloved Toronto is the safest metropolitan area in Canada. Note the circled sections.
Avena Take Two
(Via Jacob Katz Cogan at International Law Reporter)
It’s received almost no coverage in the US, but Representative Howard L. Berman (D-California) has presented a bill to complement the International Court of Justice’s decision in Mexico v. United States of America – Case Concerning Avena and Other Mexican Nationals (Avena), and the subsequent decision on interim measures pending the interpretation of Avena, released 16 July this year.
Avena
The Avena decision revolved around several Mexican nationals in prison or awaiting execution in the US. Mexico brought a complaint to the ICJ, alleging that these Mexican nationals had been denied their rights under the Vienna Convention on Consular Relations; namely, that they had not not been given timely access to Mexican consular officials.
On 5 February 2003, the ICJ ordered that several prisoners awaiting execution not be executed until the Court had reached a final decision. On 31 March 2004, the Court rendered its decision, that the US was bound by the Convention to review and reconsider the cases. Of particular concern was the “procedural default rule”, which limited the recourse to federal-level appeal of the criminal cases.
This caused the US to withdraw from the Optional Protocol to the Convention in March 2005, meaning that it can no longer be sued under the Convention without its own permission.
Medellin
Running parallel to this was the case of José Medellin (Medellín v. Texas, 552 U.S. ___ (2008)), a Mexican national sentenced to death in 1997, without benefit of consular assistance. The US Supreme Court decision in this case held that:
- Treaties are not binding on domestic law until implemented as domestic law
- Being a state party to the UN did not require the US to undertake to implement all UN decisions
- …only Security Council decisions
- …and that distinction is meaningless, since the US has veto in the Security Council
- A Memorandum of President G.W. Bush from February 2005 about the review and reconsideration of the Mexican cases was not binding on state courts
- Therefore, Medellin could not appeal in the basis of the breach of his consular access rights.
Avena, Take Two
Following the Medellín v. Texas decision, and the scheduling of Medllin’s execution for August 2008, Mexico re-applied to the ICJ for both provisional measures (that no one be executed until the question was resolved) and an interpretation of the original decision.
The Court decided that:
- Notwithstanding the US withdrawal from the Optional Protocol, it still had jurisdiction in this case given that it was an interpretation of the previous case
- Allowing the execution of any Mexican nationals before the resolution of the dispute would do irreparable harm to Mexico’s right to help that individual, and thus provisional measures were called for
- Although the US federal government had been trying to convince the states holding the individuals to comply with the Avena decision, that effort was not sufficient to discharge the obligation to comply
The key operational paragraph:
The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)
Of course, it remains to be seen what the ICJ will say in the merits, and given the Medllin decision, it seems likely that whatever the outcome, the US will fail to comply. Any federal state has double trouble when it comes to implementation of federal law, when the powers are divided such that the political subdivisions have sole domain over some areas of law, but only the state as a whole can make treaties. This has cropped up in Canada in the context of labour and telecommunications treaties; luckily for us (and arrested foreign nationals) criminal law is federal here.
Avena Case Implementation Act of 2008
Regardless of the eventual outcome, it’s encouraging to see US lawmakers try back-door approached to implementing Avena, such as Rep. Berman’s bill, which would create a civil cause of action for those harmed by the US’s violation of the Convention:
To create a civil action to provide judicial remedies to carry out certain treaty obligations of the United States under the Vienna Convention on Consular Relations and the Optional Protocol to the Vienna Convention on Consular Relations.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Avena Case Implementation Act of 2008’’.
SEC. 2. JUDICIAL REMEDY.
(a) CIVIL ACTION.—Any person whose rights are infringed by a violation by any nonforeign governmental authority of article 36 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief.
(b) NATURE OF RELIEF.—Appropriate relief for the purposes of this section means—
(1) any declaratory or equitable relief necessary to secure the rights; and
(2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of that offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate.
(c) APPLICATION.—This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act.
The Osgoode Three
We have some new team members on the site, all from Osgoode Hall, and all with previous online writing experience.
Pulat Yunusov is entering his second year, and is a Senior Editor for the Osgoode Hall Law Journal. His blogging history includes sites in Russian, his first language.
Sarah Boyd is an articling student in Toronto, having graduated June 2008 from Osgoode Hall Law School. She was Senior Style Editor of the Osgoode Hall Law Journal, and has blogged for several years, currently at Thinking Out Loud. Her primary interest is in Refugee Law and International Human Rights and Humanitarian Law.
Diana Younes is going into her 3rd year of the LLB / MES program, and is Senior Contributing Editor at The Court.
And we’re not quite sure who the Missing Sockpuppet is, but there is definitely some legal analysis going on there.
Canada’s largest law school is making its presence known online. Will the other schools follow?
We’re still taking on people, especially incoming first-years interested in continuing our work once we move on.
Contact us at admin[at]lawiscool[dot]com.
Omar Khadr Video Round-up
Early yesterday morning, the Canadian government, in compliance with court orders, released a video of Omar Khadr’s interrogation by Canadian Security and Intelligence Service agents at Guantanamo Bay, Cuba. The video, which is the first ever seen of CSIS agents in action, is already making waves internationally. Within hours of the release, front-page headlines were sparked everywhere from The New York Times to the BBC to Al Jazeera.
I can only hope that all of this international coverage will bring more pressure to bear on the Canadian government to step up and do something to protect this young man from the torture he faces in Guantanamo Bay. Canada must request Omar Khadr’s repatriation so that he can face trial in this country.
Below I have collected a number of videos relating to Omar Khadr:
The Interrogation Video
“Before the rage, the resignation and the tears, came the trust. Teenaged prisoner Omar Khadr seemed sure that his countrymen from Canada had come to Cuba to help him and spoke freely when they asked questions. On the second day, the reality almost visibly dawned on his face.
… Much of the material released shows Mr. Khadr — who is wearing an orange uniform — sobbing and repeatedly saying, in a moan, “Help me, help me.”
Here is a short segment of the 8-minute interrogation video that has been released to the public so far. The full 7-hour video of the interrogation is scheduled for later release by the Canadian government. The audio quality is quite poor, but if you click the link to view the video at YouTube, you will find captions of the exchange.
There is no evidence of torture on the videotape, but it is reported that:
“Documents made public last week show that Mr. Khadr was subjected to weeks of sleep deprivation by U.S. military officials before being interviewed by Canadian officials, and that the Canadians were aware of the sleep deprivation.” (The Globe and Mail)
Opposition Parties Demand Action
On May 26, 2008, the NDP MP from Windsor-Tecumseh, Joe Comartin, challenged the government to respect the findings of torture by the Supreme Courts of Canada and the United States and to demand Khadr’s return:
On June 13, 2008, the Liberal MP from Davenport, Mario Silva, questioned the government as to how much longer it would sit on its hands and do nothing to repatriate Khadr:
Romeo Dallaire Weighs In
Arguments at the Supreme Court of Canada
In May of this year, the Supreme Court ruled on the (il)legality of withholding disclosure from Khadr’s defence team. The SCC’s ruling in Khadr is what precipitated the release of the interrogation video above.
In Canada (Justice) v. Khadr, 2008 SCC 28, the court ruled that the Canadian Charter of Rights and Freedoms has some limited application outside the borders of this country. A thorough analysis of the judgment can be found at The Court, Osgoode Hall’s blawg.
Below is a video (unfortunately, quite short) of some of the arguments made before the Supreme Court in that case:
South Dakota, Free Speech, and Irony
Background
In June 2008, the New York Times published this article: “Unlike Others, U.S. Defends Freedom to Offend in Speech” by Adam Liptak. In the article (which caused a big todo in Canada, since we were mentioned! In the New York Times! Above the fold!), Liptak takes exception to the BC Human Rights Tribunal hearing of a complaint against Maclean’s.
My fellow blawgers here at Law Is Cool have been more on top of this than I, and have posted some here. I have been reticent to comment because I’m of two minds on the issue. Not the case, so much, because I think Steyn is an Islamophobe and basically a jerk, and I have long despaired of Maclean’s practicing fair and balanced journalism, but the issue of hate speech versus censorship is one I find very troubling.
To quote Liptak, “In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence.”
Indeed, the threshold for making speech illegal is that it provokes imminent violence. “Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away.”
Liptak also quotes Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists:
“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”
Update, South Dakota
Nearly a month after the Liptak article, this particularly disturbing article comes into my RSS feeder: “Telling Doctors What To Think: South Dakota’s unbelievable new abortion law”, by Emily Bazelon.
Once again, South Dakota anti-choice lobbyists are working to overturn Roe v. Wade by passing a law to seriously limit abortions. Their attempts to outlaw it entirely having failed, they have a new strategy, and it works like this:
Q. How do we convince doctors to tell patients that abortion is murder?
A. Pass a law forcing them to say that abortion is ending the life of a person!
Q. But Roe v. Wade ruled that a fetus is not a “person”, so how can we circumvent that?
A. Use the phrase “human being” instead!
Q. What if someone argues that “human being” and “person” mean the same thing?
A. Define it in the legislation! That makes it true!
The truly appalling thing is that the 8th Circuit Court of Appeal ruled that forcing doctors to say:
that “the abortion will terminate the life of a whole, separate, unique, living human being,” and that they have “an existing relationship with that unborn human being” that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.)
is not a violation of the right to free speech.
One of these things is not like the other
What South Dakota (and, apparently, the 8th Circuit Court of Appeal) fails to realize is that Tautology is a rhetorical pratfall, not a legal doctrine to be followed. The narrow-mindedness is underlined by this choice quote:
“The bottom line is if the state Legislature orders a professional to tell the truth, that’s not a violation of the First Amendment,” said South Dakota Attorney General Larry Long, who is defending the law in court.
Apparently, South Dakota Attorney General Larry Long is unaware that “the truth” is an objective fact, not (a) what he personally believes, nor (b) what the legislatures drafts in the definitions sections of a statute. The appeal to authority is another logical fallacy which runs rampant all over this case.
Doesn’t this seem to run counter to Adam Liptak’s (and others’) panegyric to the Great American First Amendment? Sure, in America you can say hateful, distasteful, horrible things until your dying breath, and there you are protected by the Constitution. But woe betide doctors who would prefer not to lie to their patients, when the South Dakota legislature has decreed that “abortion is murder” is an Absolute Unquestionable Truth…
…even when everyone knows it’s not.
For those interested, here are some related Canadian cases:
- R. v. Morgentaler, 1988 CanLII 90 (S.C.C.) (the Canadian Roe v. Wade)
- Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (S.C.C.) (a key freedom of speech case, where the Supreme Court ruled on the facts that forcing an employer (who had wrongfully dismissed an employee) to write a letter of recommendation was against the right to free speech but was justified under section one)
New Copyright Bill C-61 Rallying Canadians
Copyright reform may not seem like the sexiest of issues, but it has caught the attention of Canadians and launched itself to the front of the political agenda. The membership of Fair Copyright for Canada Facebook group surged recently and now has over 80,000 members.
The support is really astonishing in Canada. Copyright reforms have been going on throughout the world as countries try to meet international agreements. However, nowhere has the issue generated as much support as it has Canada. In Switzerland, for example, the issue seemed to receive little mainstream attention. The site No Swiss DCMA attempted to collect 50,000 signatures to force a referendum on the revision of the copyright act. They managed to get 803.
One reason for the widespread support seems to be that the proposed changes in the recently tabled Bill C-61 will impact every single Canadian. One group of people which will be particularly affected is students. From distance education to music copying, if passed, this law would make thousands copyright infringers.
Bill C-61 protesters questioned Jim Prentice at his Calgary Stampede breakfast. Photo: k-ideas @ Flickr
To market the bill, Industry Minister Jim Prentice has dubbed it the “made in Canada” bill (as opposed to “imported from the US DCMA” bill) and is highlighting the new provisions that most Canadians probably think are already law. The current Copyright Act:
- “does not specifically allow you to make a copy of a book, newspaper, periodical, photograph or videocassette in order to enjoy it on another device. It also does not specifically allow you to copy music onto devices such as computers and digital audio recorders.”
- “does not specifically allow you to record a radio or television program.”
Letter to Harper regarding Omar Khadr
Below is a letter that I have written to Mr. Harper to protest the Canadian government’s treatment of Omar Khadr, one of its citizens. If you are not familiar with the story, you can find some excellent background at The Globe and Mail.
credit where credit is due: I received assistance from the staff of this blawg, but because this letter does not necessarily reflect their views, I have respected their wishes and not added their names.
A Letter to the Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa K1A 0A2
Dear Mr. Prime Minister Harper:
Re: Repatriation of Omar Khadr
I am writing to you to ask that you immediately issue a request to the relevant American authorities to have Omar Khadr repatriated to Canada.
Facts bearing on the problem:
- Omar Khadr holds Canadian citizenship;
- he was a minor at the time of his detention by American authorities;
- he has been detained at Guantanamo Bay since 2002;
- during his six years in custody, Omar Khadr has been denied habeas corpus and the due process of law; and,
- he has been subjected to, at the very least, psychological abuse amounting to torture.
The right of any person to be presumed innocent until proved guilty is fundamental to our justice system and is a principle embodied in our constitution. Thus, Mr. Khadr is an innocent Canadian citizen being tortured at the hands of the American authorities.
In addition, a number of incidents have exacerbated the situation further. Military interrogators have been caught destroying important evidence. And alternative reports have indicated that Khadr was not alone at the time of his capture, undermining the assumption that he was directly responsible for any deaths.
Ultimately however, the question of Mr. Khadr’s guilt or innocence is not relevant to whether Canada should request his repatriation. This is a question of Canada’s prestige and credibility on the international stage. Canada remains the only industrialized nation that has failed to intervene on behalf of its citizens.
There is no benefit to be gained from allowing Mr. Khadr to remain in American custody. There would be no diplomatic cost to requesting repatriation. The United States has explicitly indicated its willingness to hand over Mr. Khadr should Canada issue a request.
Conversely, the costs of failing to act are significant.
By failing to take action, when all that would be required to put an end to Mr. Khadr’s torture is a simple diplomatic request, Canada is being complicit in the gross violation of the basic human rights of one of its citizens.
In 1948, Canada became a signatory to the Universal Declaration of Human Rights. It is a source of great national pride that a Canadian, John P. Humphrey, was the principle drafter of the Declaration. Because of our extensive history of contributions to the field, Canada has been recognized as a worldwide leader in human rights.
Our policy with respect to Omar Khadr is a tarnish on this international reputation. Our inaction is interpreted by the international community as a silent endorsement of the activities at Guantanamo, including controversial acts of torture. Domestically, the faith of Canadians in this country’s commitment to human rights and the protection of its own citizens is undermined. History will judge us harshly for failing to act.
I therefore ask that Canada request repatriation of Omar Khadr and that he be tried for his alleged crimes in this country.
As a Canadian citizen and a strong believer in human rights and dignity, I cannot ignore what is happening to Mr. Khadr. Respectfully, I feel that a vote for the Conservative party in the next election would represent my own sanctioning of the policy towards Mr. Khadr. I refuse to condone the inaction of this government. Today, I am ashamed of the country I so dearly love.
Yours very truly,
[signed]
Lawrence A. Gridin,
Law Student
