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OMG! Law Talk Episode 2
Law Blawgers Omar Ha-Redeye, Michael Carabash and Garry J. Wise return with Episode 2 of OMG! Law Talk.
THIS WEEK ON OMG! -
·Google Juice
·Law Firm Public Relations Strategies
·Getting Legal Information Online
·Blogging and the Election of George Bush
·Responding to Torture
·On Mark Steyn and Freedom of Speech in Canada and America
OMG! Law Talk is a weekly series, jointly presented by Wise Law Blog (www.wiselaw.blogspot.com) , Dynamic Lawyers (www.dynamiclawyers.com) and www.OmarHa-Redeye.com)
A clarification of questions : an unabridged translation of Resaleh towzih al-masael
Or, why academia matters
Here is what Azim Nanjim, who was with Oklahoma State University at the time before moving to the University of Florida, says in the Journal of the American Academy of Religion,
Except for a scholarly Foreword by Michael Fischer and Mehdi Abedi, which sets the work in context, there are major problems with the translation. It lacks all the necessary elements of scholarly apparatus, in particular a proper definition and explanation of technical and juristic terms. The attempted Glossary is totally inadequate and organized haphazardly with no regard for the order of Arabic and Persian terms. The translation itself contains many errors and is very misleading in places. The work as a whole could have done with considerable editing. As it stands, the translation is a case of lost labor.
[emphasis added]
Hamid Algar in the Department of Near Eastern Languages at the University of California, continues the shredding in the International Journal of Middle East Studies,
To the turgid flood of books generated by the Islamic Revolution of Iran has now been added a complete but crude translation of Imam Khomeini’s compendium of legal rulings, Tauzih al-masd’il…
the translation of Tauzih al-masdail could have been a worthwhile project if executed properly.The translator, J. Borujerdi, defends his work against anticipated criticism by saying that “a literal approach was deemed more likely to preserve the intent and content of the original” (p. xxx), but it would be misleading to characterize his version as a literal rendering. Borujerdi’s method has been to substitute mechanically English words for Persian ones with very little regard for meaning. Some of the results are that the Persian namdz guzdrdan or namdz khwdndan (to perform or recite a prayer) has been translated throughout as “laying a prayer,” a meaningless expression; that sigha (a woman married for a contractually specified period) has been rendered as “formula,” so that zani ki sigha mishavad is translated as “a woman who becomes a formula” (p. 319); and that hadas (a bodily function or state rendering ablution necessary) is rendered as “mishap” (p. 425). In several cases, the English word chosen reflects a misunderstanding of the original; thus the form of divorce involving renunciation by the wife of her dowry (khul) has been translated as “the dethroning divorce” (p. 334), an absurdity clearly inspired by a confusion between khul and khal (the deposition of a ruler). In other cases, the English word used is lexically correct but fails to convey the technical meaning of the Persian. One example of this is the rendering of shikasta namaz khwdndan (to abbreviate the prayer in specified circumstances) as “laying the prayers brokenly” (p. 187), a grotesque expression sure to baffle the reader. “Imitation” (p. 200) is a marginally defensible translation of iqtidd (following an imam in prayer), but unless expanded and clarified in English translation it is contextually meaningless. Makruh could be legitimately translated, in some contexts, as “abominable” and “loathsome,” the words chosen by Borujerdi (see p. xxxi; why he has not settled on one of the two words for consistent use throughout the work is unclear). However, in the terminology of fiqh, makruh designates something disapproved of and best left undone, although not forbidden; the word does not convey the sense of moral or aesthetic disgust that accompanies “abominable” and “loathsome.” Moreover, both English words imply a higher degree of distaste than does “unlawful,” the word Borujerdi uses for haram, whereas an act that is makruh is, of course, less reprehensible than one that is haram. Some of the foregoing might, of course, be ascribed to difficulties experienced by Borujerdi in the manipulation of English, but his translation also provides evidence for other kinds of disability. He seems to imagine that the Qur’an has a Sura entitled “Yes” (see p. 72), for this is how he renders Surat Yasin, evidently unaware that the name of the Sura is always written Y-S in the Arabic script.
[Even the most rudimentary Western scholar, or any elementary school student (not even high school) in many parts of the world, would know this]
…In sum, this is a book that only those with an avid and undiscriminating appetite for literature on Iran will wish to acquire.
[emphasis added]
Editors of Canada’s national news magazine, did you not bother to read this?
If you did, it seems like you failed to challenge your star author on why he dropped out of his Farsi class in high school.
LawIsCool Exclusive: Mark Steyn Exists
Mark Steyn asks us for help:
I hope the Law Is Kool Aid guys are on to this:
Mr. Steyn,
I am afraid you have been punked by an Internet hoax. There is no “Mark Steyn.”
Don’t believe me? I can prove it! Look:
1) You have not provided a citation to an article written by a reputable scholar and published in a peer-reviewed journal that references any “Mark Steyn.”
2) QED.
Greg Forster
Mari Matsuda, “On Causation” (2000) Colum. L. Rev 100:8 2195 at 2199, n. 15.
Now all we need is a citation to an article written by a reputable scholar and published in a peer-reviewed journal that confirms the Khomenei quote.
John Miller’s Open Letter to Mark Steyn
John Miller, a journalism professor at Ryerson University, posted a series of open letters on the Maclean’s controversy. His most recent one, Open letter to Steyn, documents plagiarism and gross errors of fact.
See also his previous posts:
Will Canada’s only national news magazine continue to keep on an author of such poor journalistic integrity? What does this say about the editors that allowed this poorly researched material to be published?
h/t Big City Lib
Updates
The quote in question [as opposed to the book] is a proven hoax.
Aside from faulty translations by translators unknown even to the publishers, experts who were approached to do the intro refused on the basis of questionable authenticity and misrepresentation. The bulk of the work is not even authored by Khomeini himself, and the experts strongly advised against publication.
Tony Hendra, the Bantam Books editor who previously worked as a comedian and then an editor for National Lampoon, has said publicly,
I can understand why people might look at my background [and lack of familiarity in this area] and think that it’s a hoax. But if it’s a hoax, I am the one that has been hoaxed.
Hendra has gone on since to write The Great White Hype, and work as editor-in-chief for Spy magazine. Good entertainment, but not the stuff of well-researched peer-reviewed publications.
What’s even more interesting is that the quote in question doesn’t even exist in the Farsi original, according to the former director of the Center for Middle Eastern Studies at the University of Chicago. There is good reason that this source has rarely been cited by credible scholars and academics in the field.
So much for responsible and accurate journalism by Canada’s only national news magazine. The responsibility for catching that journalistic blunder, 25 years after it has been discredited, falls squarely on the shoulders of the editors, who we’ve been told do read this site.
See the post at Big City Lib on the info we leaked to him.
We’re more interested in an apology by the publishers rather than Steyn himself, for the reasons expressed above.
Update 2
Steyn’s reponse best clarifies the need for responsible journalism.
We can’t blame him for his background as a high-school dropout, but it seems his education is based on a Persian girlfriend, and a right-wing radical who has violated the Swiss criminal code for racist content that he “adores.”
Steyn refuses to acknowledge it as a hoax because he is still unfamiliar with the source documents in their original language, no matter how many translations and jpegs he provides of books. We’re pretty sure he didn’t learn Farsi in high school. We still want a citation of the quote from a Western academic in a reputable journal, only because leading academics over a quarter of a century ago who do speak Farsi said the quote simply did not exist in the Farsi original (though may have existed in Farsi duplicates, i.e. the one Steyn cites, that may include unverified extraneous material).
This process is revealing enough, because Steyn has demonstrated that his (mis)information about this “very important issue” is not an informed one. He also conveniently ignores that all of his citations are deliberately taken out of context; nowhere is bestiality justified – it’s actually abhorred, and measures cited are punitive.
Citing factually inaccurate information as authoritative is actually just as bad as saying it yourself. He has yet to cite a single academic journal that uses the quote he references. He does go beyond simply citing Fallaci, suggesting that rising Muslim immigration would be accompanied by beastiality,
This, it seems to me, is the most valuable contribution of Oriana Fallaci’s work. I enjoy the don’t-eat-your-sexual-partner stuff as much as the next infidel, but the challenge presented by Islam is not that the cities of the Western world will be filling up with sheep-shaggers.
[emphasis added]
We expect this from high school dropouts, but not from Canada’s national news magazine.
He then tries to provide surrounding material to further lend credibility to his erroneous quote. Our response to that would be to again cite the original debunking listed above. Ivan Nabakov, director of the French publisher the Bantam book was based on, and who acknowledged their inability to independently verify the authenticity of the text, said,
The only unfair thing about the book, is that you could do the exact same thing with the Talmud if you wanted to. A 40-page extract from that could have people rolling on the ground with laughter.
We tend to afford world religions more respect than that on our site. Bantam’s chairman, Marc Jaffe, also cited in the same article, would seem to agree,
I wouldn’t want to put any religion up for ridicule.
Cheap jokes, even “en passant,” can lead to false prejudices and hate crimes when presented in this way. Physical security and workplace discrimination are not things we can lightly dismiss. The publishers of Canada’s national news magazine should know better, and the editors should be more vigilant when the best citations for their star author are right-wing blogs.
Update 3
It seems Steyn is still going on about this. Oh yeah, that’s what he does for a living.
Let’s clarify a few points:
- Steyn has yet to identify a reputable scholar writing in a peer-reviewed journal that he based his article on when doing the original research
- Not only did he not go to college, he did not finish high school either
- Nowhere above do we actually cite a green or blue little book (we only link to Miller’s assertions)
- We have academics stating in print over 25 years ago that:
- the specific quote he uses about sheep-shagging does not exist in their Farsi originals
- Farsi originals do exist that attribute quotes to him that are taken from other sources
- editors and publishers all relied on second hand sources and were unable to verify its authenticity
Our position of the quote being a hoax is based on the reluctance of these scholars at that time to either authenticate or uses these quotes out of their original context. Steyn took our bait and has indicated that when he wrote this piece he did not engage in any serious academic research. He relied on a) a convicted indicted hate criminal b) a Persian girlfriend. He finally suggests looking up experts now to verify his Farsi translation, and the veracity of his Farsi original.
The point, which he seems to miss, is that he should have done this before putting the quote into print. He seems unaware that the veracity of the quote was even questioned, despite the time lapse between this time and his article. We could care less if it’s true or not; there’s not much to laugh at when placed in context and when contrasted to other Abrahamic faiths. What we do care is that the editor’s at Canada’s national news magazine did not appear to provide enough editorial scrutiny at the time of publication. His showdown, ‘you pick someone and I’ll pick someone,’ should have happened with the editorial staff before any of this went into print.
As with so much of Steyn’s work, his approach is highly reminiscent of other racists in history who would denigrate religion by removing context, using faulty translations, and even fraudulent materials, to encourage hatred towards a domestic minority. His position that Western women should be the breeding grounds for his version of civilization is chauvinistic enough without him making reference to female undergarments towards a mixed gender team.
Perhaps these editors, and the Steyn fans, care to comment about all of this on his site. Oh that’s right, he doesn’t allow comments at all, anywhere.
Update 4
Steyn seems to have a difficult time reading, so we’ll spell it out for him, yet again.
We make no personal representations of the accuracy of any quote or book, anywhere here. We do cite reputable experts that note that the specific quote he uses has been forged in at least one copy. They note other Farsi copies include extraneous material, meaning someone else wrote it but they include it in the same book. More recently, we demonstrated that the specific Farsi translation Steyn claims to use is greatly flawed.
None of this matters, and is a distraction from the real issue at hand (even though he fails to address these points).
What we have pointed out is that Steyn did not do any real research before writing about this”very important issue” (or reproducing it) in Canada’s only national news magazine. We’ve noted repeatedly that he did not even finish high school. Not to belittle him the way he belittles others. But to point out that someone with that little formal education is hardly qualified to make accurate assessments about any global issues. Indeed, he has gone on the record a number of times and has been proven grossly wrong.
The problem here is with the editorial staff that afford him complete leeway to write absolutely anything he wants, unverified, unchecked, and without so much as a second thought. This is part of the reason that Prof. Moon suggests the creation of mandatory press councils, because there are times when the press themselves behave in an irresponsible way. Canadian readers depend on them for accurate and well-thought out information, not cheap laughs that can result in hate crimes.
And because we know you are reading this we say, “shame on you, editors of these publications.”
Law is Cool Podcast: Human Rights Commissions
If you have been following magazines and blogs for the past year, you are probably aware of the human rights and free speech controversy involving Mark Steyn and Maclean’s. Starting in 2005, Maclean’s ran a series of articles by Steyn and Barbara Amiel which, according to a group of Osgoode Hall law students, cast Muslims in a dangerously negative light. Frustrated, the students asked the magazine to provide space for them to write a 5,000-word rebuttal article. After the Editor-in-Chief refused, the students filed a human rights complaint against the magazine with the Ontario Human Rights Commission.
What came next can only be described as a firestorm of controversy in the media. A number of journalists and media outlets cried foul, arguing that Human Rights Commissions were being used to impose political correctness on the media creating a chilling effect on free speech. Former Western Standard publisher Ezra Levant took up the cause, as did a number of editorial boards across the country. The intense media criticism of Human Rights Commissions soon caught the attention of federal politicians, with Liberal MP Keith Martin calling for the repeal of hate speech provisions from federal human rights law. A vicious war has erupted on the blogosphere; several prominent figures in the controversy have received death threats via email and in blog comments. Neo-Nazi websites have openly advocated for the execution Richard Warman and other human rights lawyers.
In this episode of the Law is Cool Podcast, Omar Ha-Redeye attempts to cut through the media spin to find out what Human Rights Commissions really are and how they work. Omar interviewed two experienced human rights lawyers to get their views on the current controversy.
The first is Montreal-based international human rights lawyer Pearl Eliadis. She argues that the media coverage of the Human Rights Commission controversy has been unbalanced. She claims that Canadians are being “lied to” about the role of Human Rights Commissions and the character of freedom of speech in Canadian law. She recently wrote an article in Montreal’s Maisonneuve magazine called “The Controversy Entrepreneurs”. In that article, she seeks to dispel seven “myths” surrounding the controversy, including:
- Free speech is an absolute right.
- Human rights laws were not made to restrict speech.
- Human rights laws only apply to discriminatory conduct, not discriminatory speech.
- Human rights laws do not apply to the media.
- Human Rights Commissions dispense “parallel justice,” “prosecuting” and “convicting” people outside of normal legal channels.
- Human Rights Tribunals are rabid, out-of-control bastions of political correctness with 100% conviction rates.
- Free speech is under attack by frivolous, expensive, time-consuming complaints.
Eliadis deconstructs each of these myths and argues that Human Rights Commissions play a valuable role in the protection of all human rights, including freedom of speech. In her interview with Omar, she notes that it is unfortunate that many involved in this controversy have sought to paint the law students who brought the original complaint with the same brush as radical Islamists. In this sense, she says, an equality-seeking group has become further marginalized by bringing forward its complaint. She notes that the Commissions have characterized Mark Steyn’s writing as inaccurate, fear-mongering, and lacking in objectivity.
Ultimately, Eliadis believes that journalists such as Steyn and Levant who attack Human Rights Commissions are doomed to fail. Since some of the people who support the abolition of these Commissions have links to white supremacy groups, Eliadis believes that any such project will likely fail.
Next, Omar interviewed Donna Seale, former Co-Counsel for the Manitoba Human Rights Commission. Seale currently runs a consulting business in Winnipeg that provides educational seminars for employers on human rights issues relating to employment and the workplace. Her blog, generally updated on weekly basis, is clearinghouse of workplace human rights information.
Seale notes that Human Rights Commissions serve in a “gatekeeper” capacity to try to resolve complaints before they proceed to an expensive and time-consuming tribunal process. She believes that the Commissions are valuable because they are less adversarial than tribunals and their goal is to resolve conflicts quickly and amicably between the parties.
Seale also argues that it is a mischaracterization to portray the Commissions as guardians of political correctness that have a chilling effect on speech. Indeed, she claims that hate speech-related cases are extremely exceptional. She says that most of the cases heard by Provincial Human Rights Commissions relate to discrimination in employment, services, and housing. She rejects the argument that Human Rights Commissions should be abolished because they “do no good.”
In Seale’s consulting business, she seeks to help both employers and employees understand their roles and responsibilities in terms of meeting their human rights law obligations in the workplace. She believes that litigation can be avoided if both parties work together to understand their respective roles in terms of human rights.
Public speech has real consequences
Available online at The Star Phoenix
Consequences of public speech real
Kashif Ahmed, Special to the StarPhoenix
Friday, November 14, 2008
The recent decision by the British Columbia Human Rights Tribunal to dismiss a complaint against Maclean’s magazine brings to light the issue of free speech striking at the core of Canadian social cohesion and political debate.
From a strict legal perspective, the tribunal was correct, as was the Ontario Human Rights Commission, to toss out the case against Maclean’s brought by a Muslim group over an article written by Mark Steyn. Yet, the B.C. tribunal was not alone in its recognition that Steyn’s piece was riddled with an anti-Muslim message.
The Ontario commission stated that, while freedom of expression was paramount, it was concerned about “the content of a number of articles concerning Muslims that have been published by Maclean’s magazine and other media outlets. This type of media coverage has been identified as contributing to Islamophobia and promoting societal intolerance towards Muslim, Arab and South Asian Canadians.”
Although the commission did not have jurisdiction over the complaint, and even if we question its suitability to make public commentary, it still raised an important point. It was not simply one article written by Steyn. Rather, it was a series of pieces in Maclean’s that appeared to promote one single theme: Muslims are a dangerous group of aliens in western and Canadian society who cannot coexist peacefully with their fellow citizens.
It’s not the B.C. tribunal that wrongly questioned the professionalism and judgment of Maclean’s, as a recent Calgary Herald editorial suggested. Rather, the decision to publish those articles without including a legitimate discourse that entertained the views of Canadian Muslims is why the record of the national magazine is tarnished.
It is also of concern that Maclean’s chose to publish Steyn, who is unapologetic about his history of using xenophobic epithets such as “gooks,” “Chinks,” and “Japs.” (For the record, Steyn was not a respondent in the human rights complaint).
And yet some important questions are not being asked. What useful social function in Canada is served by repeatedly demonizing a minority community and making wild claims about it in the name of free speech? Does it strengthen the social fabric of Canada and bring communities together? The only result, in this case, is to increase public misunderstanding and misinformation.
The recent United States presidential race was a further example of what can occur when bigotry is not challenged. Since 9/11, years of Islamophobic rhetoric adopted by certain extreme American political elements led to “Muslim” or “Arab” becoming smear terms in the campaign. So much so, that in a response to a supporter’s false claim about now president-elect Barack Obama, Republican contender John McCain denied that Obama was an Arab or Muslim, and then said the Democrat was a “decent family man,” as if Muslims or Arabs could not possibly be decent family men.
American Muslims watched with shock as their identity was denigrated and reduced to a political slur. The smearing was finally challenged when Republican and former secretary of state Colin Powell denounced the campaign’s bigotry on NBC’s Meet The Press.
Is this a road that we, as a Canadian collective, want to go down as well? There are real consequences that result from free speech that is divisive and vitriolic, yet is not deemed by law to be hateful. Hence the apparent pontificating from the B.C. and Ontario human rights bodies on the Maclean’s case. There certainly is not an epidemic of Islamophobia in Canada, but the Muslim community and its representatives remain concerned.
Perhaps the human rights commissions should not be in the business of determining what constitutes hate speech. Many people think taxpayers’ money and human rights bodies that were created to deal largely with employment discrimination should not be used to adjudicate issues already covered by the Criminal Code — as demonstrated by the criminal trial of David Ahenakew over his alleged promotion of hatred against Jews.
Undoubtedly, freedom of expression must be closely guarded in Canada. Our treasured Charter of Rights and Freedoms and we, the Canadian public, demand no less. Yet, the debate should not overshadow the crux of the matter at hand: Our social cohesion and relations are severely undermined when us-versus-them attitudes and messages creep into the mainstream and try to divide us along ethnic and religious lines.
Indeed, our shared Canadian successes depend on our mutual willingness to reject such attempts at discord and division in the 21st century and our desire to rise above the sordid political game of suspicion.
Top Twelve Contemporary Hate-Mongers
Fairness and Accuracy in Reporting (FAIR) have released a report on the top twelve hate-mongers in the American media.
Given the substantial American media content in Canada, there is direct relevance to civil rights here (some of them are even Canadian).
Here’s the list, in no particular order:
- Sean Hannity
- Daniel Pipes
- Bill O’Reily
- David Horowitz
- Debbie Schlussel
- Pat Robertson
- Michael Savage
- Steven Emerson
- Michelle Malkin
- Glenn Beck
- Robert Spencer
- Mark Steyn
It’s a distinction of dubious quality, but one that will go down in history as voices of intolerance and hatred.
One of the report’s authors, Steve Rendell, said,
We found prominent right-wing pundits and activists using misinformation and innuendo to broadcast hate against an entire community… and major media have either fallen asleep at the wheel or, in many cases, have actively helped to spread the smears …We’re talking about double standards.
We’re not talking about people raving on a street corner downtown. These are people who either have a powerful platform at their disposal or are allowed unfettered access to powerful platforms by reporters and editors in what are considered mainstream publications…
Media need to step up and do their job of separating fact from innuendo and can tell the impartial experts apart from the smearcasters.
The entire report can be found here, with case studies available on the new FAIR site dedicated to the subject.
FAIR has made their email address available for comment.
In Defense of Free Speech…
On June 28 2008, the Canadian Human Rights commission dismissed the complaint against Maclean’s magazine (Rogers Media) concerning an article by Mark Steyn, and rightly so. (The complainants held that the article, among others, established a pattern of discrimination, and following repeatedly rebuffed attempts to respond in Maclean’s magazine, felt compelled to bring further action).
As many of you are aware, one article, “The Future Belongs to Islam”, is an opinion piece in which Steyn employs demographic information to support his opinion that the future of the Western world is in peril/doubt because of the spread of Islam.
While I am not a fan of Mark Steyn’s “neoconservative” ideology, as a self-described left-of-center civil libertarian I am certainly a fan of freedom of expression. Even if you do not agree with his arguments, he should have the right to express them without remaining worryingly susceptible to the retributive power of the state.
In fact, if it is held necessary that a body is to rule on the acceptability of certain speech, in order to protect vulnerable groups, the bar should be set exceedingly high. And according to previous rulings, the Supreme Court agrees. From the recent Maclean’s decision:
“The Supreme Court of Canada ruled in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that this legally prescribed limitation of fundamental Charter rights [Section 13(1) of the Canadian Human Rights Act] was reasonable and justifiable, but warned that caution and restraint would be required in the application of the section so that the limitation on free speech would be minimized to the greatest possible extent.”
From Taylor:
“The guarantee of freedom of expression is not unduly impaired by s. 13(1). The section is not overbroad or excessively vague. Its terms, in particular the phrase “hatred or contempt”, are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament’s objective. The phrase “hatred or contempt” in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification…”
The test was whether Steyn’s writings were so extreme and malicious in nature as to elicit hatred or contempt against the subjects:
“The court interpreted ‘hatred’ to mean a feeling of extreme ill-will that allows for no redeeming qualities in the person towards whom it is directed while ‘contempt’ “encompassed looking down upon or treating as inferior the object of one’s feelings.”
In an earlier related case referred to in the decision, Warman v. Kouba, it is made clear as to what type of material is considered to warrant intervention and censorship. Steyn’s writings certainly do not meet this benchmark. Hence, the commission concluded that the views expressed in the article:
“when considered as a whole and in context, are not of an extreme nature, as defined by the Supreme Court.”
A decision is pending from the BC commission.
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)
Mark Steyn Debates Complainants
We’ve all been waiting for this since forever.
The understandably busy articling students from Osgoode Hall make time to debate Mark Steyn on TVO.
A point of note: the poster of the videos introduces them as “sock puppets.” However, they are 3 of the 5 law students that produced the original research leading to the complaint against Maclean’s magazine, and the President of the CIC simply filed it on their behalf. Any assertion to the contrary is simply erroneous.
Updates: Welcome back to the thousands of Steyn fans that have returned to this site. We’ll get to your moderated comments in due time, possible within days or weeks. Our small team of full-time law students can hardly keep up with that horde. And as we’ve said before, we can’t speak on their behalf – we’re glad that they’re speaking for themselves, but we cannot answer any specific questions because we do not have the answers.
We’re finding that many of the comments are by the same posters, using different names and (fake) email addresses, but from the same computer. Some are even having a dialogue with themselves. These comments will be given a lower priority as we sort through them all.
Free to Attack Marginalized Groups
The Ahenakew affair: a bad law, an opportunity missed
By Marjaleena Repo
The David Ahenakew Affair, after five years in the courts, has sprung back with full force after the Federation of Saskatchewan Indian Nations (FSIN) voted to reinstate him as one its senators. The media have reacted with vehement disapproval as have Jewish organizations. The provincial and federal governments – the latter long overdue in its own apology and restitution to Aboriginal people for a variety of oppressive policies over the last century – are in high dudgeon, threatening censure and sanctions against the FSIN. (Mr. Ahenakew, with the storm gathering, declined the offer of reinstatement.)
Mr. Ahenakew’s brutish comments were made at an emergency meeting December 12, 2002, in Saskatoon, organized to oppose yet another detrimental policy imposed on First Nations people. He was angry and agitated – reportedly to the point of being incoherent in his speech – but his most offensive remarks came after the speech, in an encounter with a reporter (described by the reporter as an interview and by Ahenakew as an aggressive ambush). The reporter taped Ahenakew blaming the Jews for creating World War II and calling them “a disease.”
Five days later Ahenakew, in a press conference, apologized profusely for his offensive and hurtful language, stating that his comments were made in anger and frustration over the plight of native people in Canada, but that this did not excuse them. He asked to reach out to the Jewish community.
This was the moment when history could have been made, by a new level of communication and trust-building between Ahenakew, his own constituency whom he had hurt and the Jewish community, victim of his ignorant and deeply offensive comments.
If Jewish organizations had accepted the apology, one can imagine only positive outcomes: a deeper understanding of how wrong his words were and what the actual experience of German Jews was, from their relentless ostracism to the final solution in concentration camps.
With David Ahenakew leading, prepared to be a changed man, his own people, from young to old, could have entered a rich experience of empathetic learning with many connections to their own suffering under brutal colonial rule. A sign of forgiveness (and compassion) about one man’s human failing would have brought Jews and Aboriginals together, in the spirit of good will, resulting in deepening connections and new friendships. Both peoples, Aboriginals and Jews, have a history of resilience and survival, and when given a chance are capable of transcending and recovering from the worst of circumstances, as well as forgiving those who have hurt them and genuinely repent it.
TThis opportunity for transformation and restorative justice by building on the strengths of the people involved was missed when the Jewish leadership rejected, out of hand, Ahenakews apology. It wasnt good enough. They wanted more…
Canadas highly problematic anti-hate law, Section 319 of the Criminal Code, was invoked. Ahenakew was charged with inciting hatred and cornered, forced to try to defend himself against criminal charges. With apology and amends rejected, the case proceeded to a conviction in 2005 overturned on appeal June 2006 on the grounds that a crucial element, willfulness, was missing as the remarks were made in confrontation with a reporter rather than before an audience. Saskatchewan is retrying Ahenakew.
The 40-year-old anti-hate law was flawed from the beginning because it pursues thought-crimes: dissenting opinions, prejudices, stupidity and ignorance among them. One of the first charged were young Canadian nationalists in Toronto, demonstrating against a Shriners parade with a Yankee Go Home! leaflet, supposedly hateful towards all Americans!
Age has not improved this unnecessary law. It now has its offspring in human rights commissions, where a couple of well-known journalists of the right, Ezra Levant and Mark Steyn, have lately had to defend themselves against charges of encouraging hatred in their writings. But, significantly, in their case, they are being defended to the hilt by editorials and columnists across the country, on the grounds of freedom of expression, no matter how distasteful and wrong their opinions are to people whose beliefs and ethnicity they offend.
The explanation might be that Levant and Steyn are attacking an increasingly marginalized group of Canadians – Muslims and Arabs. David Ahenakew, on the other hand, part of a powerless and long-suffering group of original Canadians, having offended a powerful ethnic and religious group, has no such support for his right to be ignorant and wrong, and ends up sharing his guilt with all Aboriginals, to boot. (Contrast this with MP Tom Lukiwski who, having grossly attacked homosexuals, was upon his mea culpa instantaneously forgiven by the Conservative government.)
[youtube]http://www.youtube.com/watch?v=TwumZ5I6vkM[/youtube]
(We’re still looking for it on campaign literature).
Offensive ideas and concepts, of course, need to and will be challenged, and expressing them will have consequences. But these consequences ought to be social and political allowing for apologies and regrets not criminal, with catastrophic consequences for those caught by a law, which to quote Charles Dickens, is a (sic) ass.
(April 6, 08)
Marjaleena Repo is a freelance writer who lives in Saskatoon. She can be reached at mrepo@sasktel.net
Updates
We made some further edits with the piece over some sections we found problematic.
This article has since been published in the Prairie Messenger and the Prince Albert Daily Herald.
Reproduced with the permission of the author. Emphasis in bold, commentary in italics and links added, and some material removed.
Disclaimer: Views expressed in this post are the views of the author, and not of this site. We have presented this piece to try and provide different perspectives on the issue.
The author is a senior advisor to David Orchard and former Progressive Conservative Party Vice-president for Saskatchewan.
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