Censorious Asshattery: not just for the UK anymore

[Beowulf]

Police Charge Canadian Blogger With Criminal Libel...for Criticizing the Police

Jacob Sullum | January 26, 2012

Last summer Charles LeBlanc, a resident of Fredericton, New Brunswick, who seems to be the sort of character people politely describe as a "well-known local gadfly," said something uncomplimentary on his blog about a Fredericton police officer. It is not clear exactly what he said, or why it was fundamentally different from all the invective LeBlanc has hurled at local cops and politicians over the years. But he says it prompted an eight-man raid of his apartment last Thursday, during which the Fredericton Police Force, the same agency he has repeatedly and vociferously criticized, seized his computer as evidence of "defamatory libel." In Canada that redundant-sounding offense is not a tort but a crime, punishable by up to five years in prison. LeBlanc has agreed to appear in court on April 20.

University of New Brunswick law professor Jula Hughes tells the Fredericton Daily Gleaner it is very unusual to pursue libel as a criminal matter, even in Canada. In such a case, she says, the burden is on the defendant to prove the truth of his allegedly libelous statement. Another possible defense is to argue that the defendant sincerely believed the statement to be true, since the Supreme Court of Canada has ruled that intent is an element of criminal libel. The Daily Gleaner paraphrases Julian Walker, who "teaches a course in free speech and the free press at St. Thomas University in Fredericton," as saying "it seems awkward a police officer would be the one to launch a defamatory libel case."

Fredericton City Councillor Jordan Graham agrees, telling CBC News:

Civil liberties, I do believe, are being attacked here—whether it's a concerted effort, or it's an attempt to just scratch an itch....I think that if you're going to be going after members of the media or people that promote public discussion through criticism with this law, it creates concerns about how honest of a dialogue we can have with people and with government, and I think that's a fundamental liberty we all have to have....The real problem isn't about whether or not we like what Charles is saying. That to me is not the issue here. It's whether or not he should be able to say it and how we deal with that as a society....I have a huge problem with this being a criminal issue.

Even assuming that a criminal investigation is appropriate, Graham says, the Fredericton police should not be handling it because they have a clear conflict of interest. On his blog Graham writes:

Leblanc has been an activist that calls out government on what he thinks is wrong. His comments are colorful and in some cases kooky, but they never incite harm....Leblanc has frustrated a lot of people, but I believe in his sincere goal: he wants tomorrow's government to be better than today's, which according to his plan, should be better than yesterday's. Prior to this whole fiasco, he referred to the police as being fascist and operating like the KGB. It sounds crazy coming from him on his bright picket signs, but now it's less funny....Whether it was intended or not, the City of Fredericton is sending a message that nuisances will be silenced, and that people should think twice about taking on the state....I find this type of behavior to be morally reprehensible and a giant step back for political discourse in Fredericton. We're all fools if we don’t think the next journalist to call out the police isn’t going to be looking over their shoulder.

At least as scary as the raid itself is the fact that Graham feels a need to explain at length (as you will see if you read the whole post) that 1) freedom of speech is important to the proper functioning of a liberal democracy, 2) people have a right to freedom of speech even if we don't like what they say, 3) empowering police to arrest people who criticize them might have a chilling effect on speech. It's a miracle that someone like the Hayek-quoting Graham can get elected in a political culture where these points remain controversial.

There's a reason why libel cases in the US need to prove that the statement is wrong, and said with intent to harm, rather than the defense needing to prove that the statement is true. Oh, and they're civil, not criminal, so you can't get thrown in jail. Let's not get into the fact that the police department that's allegedly being defamed is also the one conducting the investigation. Nope, no conflict of interest there.

[mr friendly guy]

Why do the police even need to investigate if its up to LeBlanc to prove what he says is true?

Also there are so many unknowns in this and I wouldn't be quick to judge. For example what exactly was said that prompted the alleged raid. Yep, its alleged at this point from the guy who the article describes as having a hard on of hate for the police. No other source including the police have confirmed this, and you would think if the cops plan to charge him with something they have to come out and admit they raided his place.

The rest of the article seems to talk about free speech wah wah broad generalities blah blah, I am being oppressed blah blah rather than the specifics of the case.

[Korto]

Maybe so, but you would have to question the need for a eight man raid. Surely for a bit of libel (assuming the police department's feelings are so delicate as to need to do anything), unless the man was known to have an AK 47 and a team of vicous attack dogs, then two men in uniform knocking on the door could have done just as well. Don't the others have some traffic tickets to hand out, or something?
It stinks of intimidation right there.

[Molyneux]

If the focus of the case is on this man's criticisms of the police department as "fascist" - wouldn't the details of how the police handled the case itself be a great source of support for his statements?

[Beowulf]

Why should he even have to prove the truth of what he says? Such an idea starts from entirely the wrong foot: that he must prove his innocence, rather than the prosecution having to prove his guilt. And why is such even a crime, rather than a civil matter? Is it really worthwhile to toss someone in jail for something they said?

It's likely that because it's a libel case, they can't talk about the specifics, because the defendant can't talk about it without getting tossed into jail for contempt, and the police don't want to talk about it because they're acting like fascists.

[mr friendly guy]

Why should he even have to prove the truth of what he says?

Burden of proof and all that.

Such an idea starts from entirely the wrong foot: that he must prove his innocence, rather than the prosecution having to prove his guilt.

The problem is, you can have a situation the other side must prove their innocence so to speak. For example using a Keevan Coltan example to Glocksman in a previous thread to illustrate this same point. Keevan accuses Glocksman of being a paedophile. If Keevan Coltan has not and does not have to prove his claim, then by default Glocksman is considered a paedophile.

But wait, if Glocksman objects to that claim, he suddenly has to prove his innocence, rather than Keevan Coltan having to prove Glocksman is a paedophile.

So someone has to prove something. Logic dictates its the guy claiming the positive, rather than the negative thing. So in my example, the guy claiming the flying sphagetting monster, god, Zeus exists other man is a paedophile is making the positive claim, the guy claiming the flying sphagetti monster, god, Zeus does not he is not, is making a negative claim. You can't prove a negative and all that. And before you try and reverse it with, what about proving defamation? Ok. Glocksman still has to show that being mislabelled a paedophile is harmful. Easy enough. So by default if Keevan Coltan fails to prove his claim, he has defamed Glocksman.

Defamation seems to be the default position in the same way atheism is. If the theists defendent haven't proven their claims, then atheism defamation is the default. The only difference I see, is that you have to prove that false claim actually causes harm for it to defame someone.

And before someone nitpicks with, the use of the word prosecution is implying a criminal case rather than a civil, it shouldn't matter to my examples because it works just as well for civil cases.

And why is such even a crime, rather than a civil matter? Is it really worthwhile to toss someone in jail for something they said?

America assassinates people for being AQ propagandists, so you tell me. It always isn't as clear as someone merely saying something, its also depends on the consequences. In the above case its a bit hard for me to comment since as you say, the specifics aren't posted.

[The Spaniard]

At the surprising rate of these articles, and the arrests over rather trivial matters, it's feeling almost as if Nineteen Eighty Four is becoming a history textbook.

[Simon_Jester]

Friendly guy, the problem is that we've got two incompatible goals. One is what around here we might call the 'SDN debate' goal: whoever makes the positive assertion has to prove it. The other is a legal idea: that you are legally innocent of a crime until proven guilty.

If I am innocent until proven guilty, then if someone sues me for libel, they have to prove that I committed libel. Which means not only that my statement is false, but that it was defamatory- that I meant to slander their reputation, not just to criticize their conduct.

If we apply the "everyone must prove all positive statement" standards, then the defendant in a libel trial is assumed by default to have committed a crime, unless he can prove his innocence.

The chilling effect on freedom of speech is not hard to see.

[Questor]

I always remember hearing that "truth is a defense to libel".

Here's what I see happening:

Party A calls Party B a fascist.
Party B objects and claims libel.
Party B has to prove that Party A *called him a fascist*, not that Party A was lying.
Party A can take the affirmative defense (admitting that the fact is true, but claiming to not be LEGALLY responsible) that the statement was true, and that Party B IS a fascist, and therefor his is *not guilty*. This does not change the fact that he did this.

Other parts of the legal system work this way as well, (and I actually know more about those and am extrapolating), such as self defense and an "insanity plea", since it is obviously impossible - from a logical standpoint (and remember, formal logic is supposed to be used in law) - for the state to prove that you were not acting in self defense in any situation, but then - it was never the state's burden to prove that, only that you committed the act you are accused of.

This is how legal systems get around the "Proving the Negative" issue, at least the one I studied.

[Simon_Jester]

Yes, but the defendant has some other options. In the US, you can be not guilty because you lacked defamatory intent, for example. If I say that an actor is wimpy-looking, it isn't necessarily an attempt to undermine his reputation in a way that hurts him. If there's no intent to defame someone, it's not libel, even if I didn't adequately research the statement (whatever that would mean for such a subjective thing).

Also, what makes this case so touchy is that it's almost impossible for the state to be accusing people of libel without politics coming in. By harassing and accusing people who say bad things about the New Brunswick police, the police are effectively squashing those who try to accuse them of abusing their power.

[K. A. Pital]

People should have the right to call their state fascist any time and any day. That's pretty much a basic right. Even if some crooks thinks this is "defamation" or whatever.

[mr friendly guy]

Friendly guy, the problem is that we've got two incompatible goals. One is what around here we might call the 'SDN debate' goal: whoever makes the positive assertion has to prove it. The other is a legal idea: that you are legally innocent of a crime until proven guilty.

If I am innocent until proven guilty, then if someone sues me for libel, they have to prove that I committed libel. Which means not only that my statement is false, but that it was defamatory- that I meant to slander their reputation, not just to criticize their conduct.

If we apply the "everyone must prove all positive statement" standards, then the defendant in a libel trial is assumed by default to have committed a crime, unless he can prove his innocence.

The chilling effect on freedom of speech is not hard to see.

The problem is, one can accuse you of a crime, but then say you were too smart to be caught. So I can accuse you of being a terrorist blah blah blah, but you are at least smart enough not to be caught.

If you sue me for defamation, by your own definitions I am innocent until proven guilty, thus you must be guilty until I am proven guilty of defaming you. So no matter how you spin it, someone will be required to prove their innocence, rather than the usual way round.

[K. A. Pital]

Why would someone be "guilty" just because a blogger said so? Guilty is a legal category. I mean, lots of people speculate that so-and-so is in fact a criminal, etc. in the internet. It does not give the government a right to sue them for libel, because their accusations do not mean the government or its representative are legally guilty.

[mr friendly guy]

Why would someone be "guilty" just because a blogger said so? Guilty is a legal category. I mean, lots of people speculate that so-and-so is in fact a criminal, etc. in the internet. It does not give the government a right to sue them for libel, because their accusations do not mean the government or its representative are legally guilty.

It shouldn't. However for all intents and purposes if an accusation sticks, it amounts to the same consequences, eg social villification without the government backed sentence.

I should also point out, if you are innocent of defaming, presumably we assume that your claim is correct (until you are proven guilty). That automatically makes the person you made a claim about, look guilty even if not proven yet (assuming your claim is referring to a legal crime).

In fact lets go further with unfalsifiable claims. I can accuse anyone of breaking whatever laws, but state the precursor that you are too smart to be caught / have too awesome a lawyer to defend you etc, hence by definition you can't be guilty, since guilty in this case is a legal term.

[K. A. Pital]

Why would a random accusation made by a blogger result in social vilification unless of course said accusation is believed to be true by the majority of the populace (in which case the government goon in question is already hated by the population and the blogger is only riding a wave of popular hatred)?

I can accuse anyone of breaking whatever laws, but state the precursor that you are too smart to be caught / have too awesome a lawyer to defend you etc, hence by definition you can't be guilty

I do that when oligarchs commit crimes and get out scot free in corrupt courts. Does that mean an oligarch has the right to drag me to the court for a claim on a web forum?

[mr friendly guy]

Why would a random accusation made by a blogger result in social vilification unless of course said accusation is believed to be true by the majority of the populace (in which case the government goon in question is already hated by the population and the blogger is only riding a wave of popular hatred)?

1. The extent of the publicity such a person should be irrelevant in regards to the logic regarding burden of proof type arguments. It may affect why someone may go after that blogger. For example Andrew Bolt, who is considerably bigger fish than the blogger in question.

He was lost defamation cases and similar case for breaching Australia's racial discrimination act, which he did so by making statements which demean Aborigines, WHICH WERE NOT TRUE.

Now if Bolt was a nutjob without a big column, and just kept his views to his immediate family, it most probably isn't worth going after him. That being said the Aborigines went after him without asking for damages, only an acknowledgement that he had breached the act, so who knows.

The point is, its more logical for Bolt to have to prove his claims (both in the defamation and breaching the racial discrimination act cases) rather than his opponents disprove it. Which would be difficult as it would require mind reading capabilities, unless someone blurted out something silly.

2. To answer why someone would believe some bullshit being typed, well we can have the long answer or the short answer. The short answer is the same reason why people can believe in YEC, Idiotic Design, homeopathy and assorted bullshit. People are stupid. The long answer would require explanations of why people are stupid, and I rather not get into it.

Who was it again which said (I am paraphrasing here) a lie told enough times becomes truth? Similar principle here.

I do that when oligarchs commit crimes and get out scot free in corrupt courts. Does that mean an oligarch has the right to drag me to the court for a claim on a web forum?

I highly doubt you would be a "worthy" target. And I use that term only in the sense the cost benefit ratio wouldn't be profitable for them.

[Simon_Jester]

The problem is, one can accuse you of a crime, but then say you were too smart to be caught. So I can accuse you of being a terrorist blah blah blah, but you are at least smart enough not to be caught.

If you sue me for defamation, by your own definitions I am innocent until proven guilty, thus you must be guilty until I am proven guilty of defaming you. So no matter how you spin it, someone will be required to prove their innocence, rather than the usual way round.

Sort of- which is why there are other tests for defamation, or should be.

I think the US may actually have a good system there (not the only good system, please don't kneejerk yell at me without thinking it through).

For one, you do need to prove the statement is false, but if you're being accused of an actual crime, you have the advantage of being innocent by default. So it doesn't take a full investigation for fraud to 'prove' that claims you've committed fraud are false in a perjury case.

But then you must prove a number of other things, depending on which defenses the accused chooses to use:

-You must prove that the accusations cause harm. If I say bad things about you, but no one knows, believes, or cares, it's not libel. This is where publicity comes in. A random person saying a bad thing on his blog is not the same as a more influential source saying it on the mainstream media. If there's so little publicity that my statements don't cause demonstrable harm, you can't make a libel charge stick.

-You must prove I spoke with malicious intent, or with reckless disregard for the truth. The fact that someone found out something about you you wish they didn't know is not enough, if I revealed this information without the specific intent to slander you.

-You must prove that my statement was not made in good faith (tied closely with the above: a statement I have reason to think true isn't necessarily libel, even if I'm wrong)

-In cases of the public interest being at stake, you may still not be able to sue: some classes of statements have immunity, when made by journalists and the like.

-The US is perhaps weakened in that it doesn't have an exclusion for opinion; others do. Something like "I think [movie star] is a sissy" is a matter of opinion, it's obvious to anyone who reads it that the matter is not objective, and it can't be proven false. But it causes very little damage to your reputation if someone says he dislikes you because of opinion: no one's going to be all that strongly swayed by me calling Bruce Willis a sissy or something like that. It's matters of fact (accusations of serious crimes, false allegations about your background) that have real potential to hurt you.

-The US does, however, have a strong tradition of "fair comment," in which you can say outrageous things about public figures (including politicians and government agencies), "as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff." This can be folded into the malice defense; in the US it should apply to a blogger criticizing the police.

[mr friendly guy]

For one, you do need to prove the statement is false, but if you're being accused of an actual crime, you have the advantage of being innocent by default. So it doesn't take a full investigation for fraud to 'prove' that claims you've committed fraud are false in a perjury case.

Yeah, but my hypothetical accuser is also innocent by default of libel. So we are both innocent even though its a blatant contradiction. Is this Schrodinger's cat but for legal cases?

But then you must prove a number of other things, depending on which defenses the accused chooses to use:

-You must prove that the accusations cause harm. If I say bad things about you, but no one knows, believes, or cares, it's not libel. This is where publicity comes in. A random person saying a bad thing on his blog is not the same as a more influential source saying it on the mainstream media. If there's so little publicity that my statements don't cause demonstrable harm, you can't make a libel charge stick.

Agreed. And I have said it in this post. Obviously I can't comment on this particular case because the specifics aren't mentioned, most probably because both sides are awaiting their day in court.

-You must prove I spoke with malicious intent, or with reckless disregard for the truth. The fact that someone found out something about you you wish they didn't know is not enough, if I revealed this information without the specific intent to slander you.

-You must prove that my statement was not made in good faith (tied closely with the above: a statement I have reason to think true isn't necessarily libel, even if I'm wrong)

This was debated previously in this thread. What our Emperor said then is just as valid now.

The point is not innocence until proven guilt; the point is that the requirements to prove guilt are fucking ridiculous. You have to actually make and support assertions about the state of mind of the defendant (in the libel case) for fuck's sake.

While simultaneously opening a loophole called "plausible deniability" so big that you could fit a battleship through it. Basically, it means that no one with a decent lawyer will ever be convicted of libel unless he confesses to it.

-In cases of the public interest being at stake, you may still not be able to sue: some classes of statements have immunity, when made by journalists and the like.

This is somewhat different from Australia, see my above links. Idiot "journalist" like Andrew Bolt could be sued for statements he made. There is a public interest at stake, which is why to better serve the public we must have accurate reporting, truth. With accurate information it improves democracy. Its this type of public interest rulings that make America's political process a giant circus, compared to say Australia. Where the media circus isn't quite as bad.

-The US is perhaps weakened in that it doesn't have an exclusion for opinion; others do. Something like "I think [movie star] is a sissy" is a matter of opinion, it's obvious to anyone who reads it that the matter is not objective, and it can't be proven false. But it causes very little damage to your reputation if someone says he dislikes you because of opinion: no one's going to be all that strongly swayed by me calling Bruce Willis a sissy or something like that. It's matters of fact (accusations of serious crimes, false allegations about your background) that have real potential to hurt you.

I am pretty sure no one is going to get worked up over those type of statements. Which is why I chose to illustrate it with more serious cases. Such cases exist. For example

Dr Muhammed Haneef. His name is now forever stained with terrorist even though an investigation exonerated him. Fortunately the new Australian government compensated him for his imprisonment and stain to his reputation. The whole terrorism angle was bullshit in the highest extreme. Can you imagine if he tried to sue for defamation (excluding the wrongful imprisonment part). He would have to prove that the Australian officials labelled him a terrorist suspect based on no evidence and out of malice. How is he supposed to do that without mind reading powers? The PM John Howard already denied involvement even though documents showed he was involved within 48 hours, but he denies any involvement. The Australian government would just say, we trying to protect the Australian people in good faith, and not trying to generate another SCARE CAMPAIGN so close to an election. No sirree.

I don't know about you, but if my name was dragged through the mud I would be pretty pissed off.

-The US does, however, have a strong tradition of "fair comment," in which you can say outrageous things about public figures (including politicians and government agencies), "as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff." This can be folded into the malice defense; in the US it should apply to a blogger criticizing the police.

See above quote from Darth Wong in the previous thread.