Here is another interesting segment from the ever-escalating "cyber trench warfare" pertaining to the dimensions of the Canadian "Zundel versus Holocaust Enforcer" struggle still playing in the courts of Canada.
This time, as far as I can tell, the cyber players are McVay, Skywriter and Slade. It appears that Ken McVay of Nizkor, proud of mealymouthing for the Holocaust Enforcers out of one corner of his mouth while dribbling rhapsodies about his love for "freedom of speech" from the other, rose on his hind legs, so to speak, pronouncing with bombast:
"I said we have always accepted/had abridgements to free speech, citing libel and slander laws."
Skywriter:
"Wrong.
"Libel and slander actions are taken AFTER the event of untruthful and damaging speech - there being *no prior restraint* on that speech before the fact."
McVay:
"You do not address my point, which was that we have, and always have had, abridgements to free speech. I assume you concede this point? Certainly there is prior restraint. The law tells us that if we defame someone, we will be subjected to punishment. That is _precisely_ *prior restraint.*
Slade:
"Not at all. You are dead wrong on that, but you figure if you lie real smooth, no one will notice.
Let's review some legal theory here. The sequence of a slander tort is
(1) the speaker makes a slanderous statement
(2) Someone is damaged by the slander
(3) the victim files a complaint
(4) the court (hears) the evidence and rules on the case.
In contrast, "prior restraint" is a court ruling that shuts down the speaker PRIOR to any damage done, maybe even prior to the speaker being allowed to speak. This is "judgement before the fact".
We had cases like that come before the Supreme Court here during the Civil Rights battles of the 50's. You'd have a group of blacks out picketing a hardware store for discriminatory practice, and the owner would sue that he was being slandered. Local courts ruled in his favor and ordered the picketing to stop.
One case went all the way to the Supreme Court, and they threw it all out. There is NO prior restraint permitted in slander. In order to get a ruling, the hardware store owner would have to prove that:
(1) The statements are false
(2) The statements materially damaged him
If the case fails on either of those points, it fails completely. Truth is ALWAYS a defense against libel and slander. If you are stealing money and you are accused of stealing money, you cannot sue for slander - - that's a joke.
On the second point, you have to prove damage. You have to prove you were hurt. It is not enough to be called a bricklayer when you are really a carpenter. It might well be false information, but unless the statements injure you in some way, it is not slander.
In order to get any money ("recovery") for slander, you have to show HOW MUCH you were damaged, and it usually requires some material loss, not JUST "pain and suffering". That is the basis for giving you a court award. The court requires the slanderer to give you money to make you "whole". That is, to restore you to the condition you were in before the slander.
Now all that legal theory is in the trash with this Canadian operation. Here, there is no proof of damage, truth is not a defense, and Zundel is not even allowed to face his accuser or cross-examine them in court.
This is not the plaintiff versus defendant. This is the "Crown" versus Zundel. The plaintiff does not have to prove in court that he suffered anything more than "Zundel hurt my feelings".
Was Zundel publishing truth? Does not matter, ruled the Canadians. The complainant has hurt feelings.
Page 9 of the Canadian Human Rights Tribunal (ruling that "Truth is not a defense reads):
"...The objective truth of the statement is ultimately of no consequence if the subjective interpretation, by virtue of tone, social context and medium is one which 'arouses unusually strong and deep-felt emotions of detestation, calumny and vilification'. Therefore, in our view, whether the message is true or not is immaterial. Whether it is perceived to be true or credible may very well add to its impact, but its actual basis in truth is outside the scope of this inquiry."
Wow. The potential for abuse is such an operation is STAGGERING."
There is a small wrinkle in the above argument - which is that ***two*** simultaneous judicial attacks on Ernst Zundel by the Holocaust Enforcers are currently playing side by side - attacks that are often confused, and confusing.
Let me just briefly summarize for newbies because the Zundel Saga, I have been told, has been spreading like wildfire these past few days and are discussed in many, sometimes overlapping, newsgroups.
* One attack comes from the traditionally strutting, highly visible Holocaust Enforcers - the Canadian Jewish Congress, the Simon Wiesenthal Center, The Holocaust Remembrance Association etc. etc. who are using a "Tribunal" of the Canadian Human Rights Commission, a ***quasi-judicial*** government body, to get a conviction on what they tried to get for many years in ***regular*** courts and didn't succeed in getting - which is, a conviction of "hate mongering".
In this attack, truth is no longer a defense. Politically incorrect witnesses, even academicians with proper credentials but the wrong attitudes, are simply not allowed. Protesting to the regular courts about such practices results in horrendous legal fees being assessed against the victim fighting off the Holocaust Enforcement sharks, as Ernst found out on Monday when he insisted on asking for a date for an expedited judicial review.
And even should a miracle occur - which no one expects at this point - and the "Tribunal" should decide that Ernst Zundel is not guilty of "hate mongering" - some yahoo on the next street corner can look at the Zundelsite, decide that ***his*** feelings are hurt, and start a new Kangaroo Court.
Remember that something like this happened to Doug Collins in British Columbia before the Provincial Human Rights Commission there. Doug was absolved - and promptly charged again! On some of the ***same*** documents claimed to have been offensive the first time around! Harassment is the only word for it that fits!
* The second attack comes from the Canadian intelligence apparatus where devious things play out behind closed doors - as they are called, "in camera". There, Ernst's accusers are invisible. He is not told about the specific nature of the charges. He does not know the names of his accusers. He is forbidden to subject them through his legal team to cross-examination. This time around, the Canadian Security Intelligence Service wants ***all*** its witnesses to be heard behind closed doors! (In the first round, Bernie Farber of the Canadian Jewish Congress obviously did not like being cross-examined and asked for documents!)
It is a Kafkaesque scenario.
Is there nobody decent left in Canada who has the gumption to stop these state-tolerated extortionists who have made millions if not billions by beating up Ernst Zundel in full view of the public and the media - while yammering with hat in hand that ***they*** are being persecuted by Ernst Zundel?
I say this much: The riddles of the arson of the Zundel-Haus, and the pipe bomb sent shortly afterwards meant to kill Ernst, are crying to be solved. Tellingly, those punks accused of sending the bomb - first apprehended, then quietly let go - are now no longer charged with "attempted murder of Ernst Zundel". That charge, spelled out in the original search warrant, was quietly and expediently dropped.
Remember the media blackout that followed? And many people wonder ever more if maybe therein lies the key to many unsolved questions.
Ingrid
Thought for the Day
"You should never underestimate the power to hide or confuse fundamental values behind specially devised words."
(ASMarques)