#TeamHarpy and "Taking One For The Team"

Science librarian Joe Murphy has filed a defamation suit in Toronto against two other librarians— nina de jesus of Canada and Lisa Rabey of America. Murphy asserts that the defendants have defamed him by labeling him a "sexual predator" who is "continually sexually harassing women" at librarian conferences.

Fair disclosure: Murphy is represented in Canada by Antonin Pribetic, who is a friend, though I've been adverse to him in a defamation case before. In America Murphy is represented by Marc Randazza, who is a good friend, colleague, and occasional co-counsel. I have not assisted anyone in the case.

Rabey and de jesus have styled themselves as #teamharpy and have solicited money for legal defense, and enjoy widespread support on Twitter and elsewhere.

The case presents many issues I've written about before. First, there's Murphy's choice of forum. As we've often complained here, Canada is significantly less protective of speech than the United States. For instance, in America, Murphy would have to prove that the statements about him were false to prevail on a defamation claim; in Canada, it's the defendant's burden to show their statements were true. This is a silly and censorious allocation of the burden. Murphy's choice of Canada has some basis — one of the defendants wrote from there — but it's clearly an effort to select a more plaintiff-friendly forum. That may present a challenge if Murphy gets a judgment in Canada and tries to enforce it in America against Rabey; the SPEECH Act will be a significant impediment.

Next, if Murphy had sued in a U.S. court, we'd have to assess what part of #teamharpy's comments were potentially defamatory statements of fact and what parts were absolutely privileged statements of opinion. I won't pretend to know where Canadian law draws the line (though I'm not optimistic). In America, the analysis is fairly straightforward. Were the statements hyperbole and rhetoric that could not be reasonably taken as assertions of actual fact? Were they opinions based on specific disclosed facts? Or were they statements of fact, or statements of opinion implying undisclosed facts? If the statements attributed to #teamharpy in Murphy's statement of claim are set forth accurately, they appear to contain several statements of (potentially defamatory) fact rather than pure opinion. Saying that Murphy is a "sexual predator" based on undisclosed facts is a statement of fact. It would be different had #teamharpy said something like "This video makes Murphy seem like a predator," which would be a statement of opinion based on disclosed facts.

It's a good thing that #teamharpy can raise money to defend the case on the merits, rather than be crushed by a broken legal system. Free speech issues are always best resolved with competent counsel on both sides. I hope that the Canadian court fairly and justly evaluates whether #teamharpy can prove that its statements were true, a burden unjustly imposed on it by retrograde law. If Murphy wins in Canada, I hope that Rabey uses the SPEECH Act to prevent Murphy from enforcing the judgment in America unless he can show that Canada's procedure was adequately speech-protective (which he can't do).

But some of the commentary on the case is unsettling.

I've helped people before who have been threatened with litigation for reporting about sexual harassment, and I expect I will do so again. But I do so because of general principles of free speech, not because I think that talking about sexual harassment should be utterly immune to defamation analysis. Some of #teamharpy's supporters seem to disagree, and to believe that there is something inherently wrong in suing over accusations of sexual harassment.

Take this blogger, who opines that "librarians are supposed to support free speech" and that "Mr. Murphy should stand down for the good of the profession and in the name of providing a safer environment for people to report harassment." Or consider this petition that demands that Mr. Murphy drop his lawsuit:

As librarians, educators, library users, and supporters, we value open dialogue and believe the proper response to accusations of harassment is understanding and engagement. Instead, you have chosen to use legal action to silence future discussions about a critical issue in our profession and furthermore will likely prevent other victims of harassment from speaking out against their abusers.

The petition goes on to demand that Murphy drop the suit, apologize, pay fees, and "make a meaningful, symbolic gesture of solidarity, healing, and reform."

It would be one thing if #teamharpy supporters were taking this position because there was public proof that the accusations against Murphy were true, or if #teamharpy's statements were clearly ones of opinion rather than fact. But that's not the case. Instead, #teamharpy's supporters seem to proceed from the premise that an accusation of sexual harassment ought to be absolutely privileged from suit, and that, for the good of the community, individuals must endure accusations without legal remedy, even if they are not true. That's a view that echoes the position of one of the blog posts at issue in the case:

We can and must take a stance of siding with victims. There needs to be a super clear message that whenever someone speaks up about abuse or harassment that they’ve experienced and encountered within a professional space (conference, work, whatever) that this person will be supported and believed.

What this looks like:

Don’t ask for ‘proof’.
Don’t treat ‘both sides of the story’ as if they hold equal weight.
Do not engage in any type of victim blaming behaviour.
Listen to the victim. Do it. And don’t judge.

To the extent they believe this, #teamharpy and its supporters are logically, legally, and morally incoherent. It's one thing to put a very difficult burden of proof on a defamation plaintiff, as the United States properly does. That gives broad elbow room for important speech. But saying that an individual should endure false and harmful accusations without complaint for the good of the collective is offensive. It's no more principled than saying that women should endure sexual harassment quietly for the good of the community and so as not to "rock the boat" — something that has too often said to women. American law offers some very broad privileges for reporting misconduct — take, for instance, California's absolute privilege for reports to the police. None of those privileges are broad enough to say that you can tweet or blog about sexual harassment with complete immunity because sexual harassment is an important subject. Nor should they be. American law protects many false statements (because the plaintiff can't prove falsity) or negligent and baseless statements (because of the burden of proof on the plaintiff). But our law doesn't do that because false or negligent accusations are admirable or desirable. We do it to give true statements, and genuine efforts at true statements, maximum protection.

There are excellent strategic reasons not to sue someone for defamation over internet content — the Streisand Effect will likely draw many, many more eyes to the statements that upset you. But that's not an ethical stricture, it's a practical one.

Nor is #teamharpy's approach to sexual harassment investigation coherent or principled. Look: you can run your private organization however you like. You can expel people immediate based on a defined set of accusations because you treat those accusations as presumptively true. But that's not a professional sexual harassment policy, it's an ideological policy. I train companies on sexual harassment prevention and the investigation of sexual harassment claims; you'll never find me — or any other professional in the field — suggesting a policy that presumes anyone is telling the truth. Outside the realm of purely private organizations that can eject people for any reason at all, that's begging for litigation — in addition to being a poor way of discovering the truth. Moreover, it may just be the defense attorney in me, but I don't have any respect for social norms that treat any accusation of misconduct as inherently true.

I remain a strong defender of free speech, including when people are threatened with suit for talking about harassment. I think such speech should be protected to the fullest extent of the law. I don't think men are special snowflakes more likely to be victims of false accusations, or that women or progressives or whatever Rush Limbaugh calls them this week are more likely than anyone else to make false accusations. I have no idea if Murphy has acted as a predator or harasser. If he has — or if #teamharpy has a basis for saying that he has — then they should prevail. But though #teamharpy is wrapping itself in the banner of free speech, at least some of its rhetoric smacks more of ideological conformity.

#Teamharpy's supporters seem to suggest that Murphy should rely on the goodwill of the librarian community, not the legal system, to vindicate him. If there's truth to the accusations against him, he should get legally curbstomped. But if there's not, why should he rely on the goodwill of a community that apparently wants to define him as guilty by dint of having been accused? Does this sound like a community that will judge him fairly?

On May 5, Rabey posted, “With added bonus: Rumour mill has reached me I’m apparently ruining Joe Murphy’s career. AHAHAHAHAHA…”

I don't think so.

Last 5 posts by Ken White

Comments

  1. Edward says

    Canada's burden does seem a bit wiser in this particular case. If the allegations are "he sexually harasses women at conferences," it seems a near impossible burden for him to prove he has never harassed any woman at any conference, and a far easier burden for the defendant to produce a witness (or two) saying he harassed (assuming such witnesses exist).

  2. Edward says

    Canada's burden does seem a bit wiser in this particular case. If the allegations are "he sexually harasses women at conferences," it seems a near impossible burden for him to prove he has never harassed any woman at any conference, and a far easier burden for the defendant to produce a witness (or two) saying he harassed (assuming such witnesses exist).

  3. Mike says

    Edward — actually, it's easy for him to prove that he never harassed any women at a conference. He testifies that he hasn't. Then he prevails in the absence of evidence to the contrary.

  4. Matt says

    Ken, I think you used the wrong word in the paragraph immediately before the second block quote. The sentence ending "for the good of the community, individuals must endure accusations without legal remedy, even if they are true," makes a lot most sense if the last word is changed to 'false' or 'innocent.'

  5. Jacques Cuze says

    Wish you had published an analysis like this at the same time you raised the Popehat signal for PZ Myers in the very similar cases in the Atheist community (The PZMyers "hand grenade" blog posts).

  6. says

    @Matt: in fact I did that twice. Fixed.

    @Jaques: Did someone back then say that accusations of harassment should be absolutely privileged from suit? If so, I didn't see it.

  7. says

    @Mike and @Edward: Right — legal burden of proof is not the same thing as logical burden of proof.

    "Burden of proof on the plaintiff," in this case — per my not-a-lawyer understanding, at least — means that he needs to convincingly assert that the specific allegations of harassment are false, or do not meet the definition of harassment, or that there are no specific allegations.

    He's not being asked to prove a negative, he's being asked to refute a specific set of allegations.

  8. Shane says

    Is "nina de jesus" intentionally not capitalized, a la e. e. cummings in the first and third paragraphs?

  9. Jacques Cuze says

    > @Jaques: Did someone back then say that accusations of harassment should be absolutely privileged from suit? If so, I didn't see it.

    Thanks for responding

    In regards to "FTB/SkepChicks/et.al." vs. Ben Radford there were absolutely demands he "take one for the team".

    In regards to "FTB/SkepChicks/et.al." vs. Michael Shermer, I just think that in addition to the Popehat Signal, all of us observers would have benefited with your analysis of the speech issues as well as the legal issues. With my naive and flawed legal understanding, I think your analysis then would have helped both parties resolve their issues more than your raising the PopeHat signal did.

    Perhaps even more important than what "merely" happens in court is the whole privileging in society that "Believe Survivors", the Title IX driven lowering of standard of proof and the upturning of presumption of innocence on campus demands.

    (I do have to ask you, why did you block me on twitter, I still haven't figured that out. If you don't remember why yourself, may I ask you to unblock me?)

  10. says

    @Jaques: Sometimes, when I offer legal assistance or help finding legal assistance, I deliberately refrain from writing about the case at hand.

  11. Jacques Cuze says

    > Sometimes, when I offer legal assistance or help finding legal assistance, I deliberately refrain from writing about the case at hand.

    And I can definitely understand that.

  12. Fasolt says

    Well, I guess he wants to…

    Wait for it…

    Throw the book at them!

    Thank you, I'll be here all week. Don't forget to tip the waitstaff.

  13. Christopher Jones says

    @Shane: Based on the #teamharpy website, it certainly looks like that is the way she writes it.

  14. says

    That's how she sets it forth and how the article set it forth.

    If the point of the post were making fun of people, I might make fun of that human foible, but that wasn't the post, so I set it forth the way she does.

  15. That Anonymous Coward says

    "We can and must take a stance of siding with victims. There needs to be a super clear message that whenever someone speaks up about abuse or harassment that they’ve experienced and encountered within a professional space (conference, work, whatever) that this person will be supported and believed.

    What this looks like:

    Don’t ask for ‘proof’.
    Don’t treat ‘both sides of the story’ as if they hold equal weight.
    Do not engage in any type of victim blaming behaviour.
    Listen to the victim. Do it. And don’t judge."

    Wow…
    So one can not assess the facts for themselves, and must toe the line or else.
    If you dare ask for factual basis you are betraying the cause.
    Don't you DARE consider there are 2 sides to the story, and in the absence of any evidence weight them equally.
    Allow someone to wrap themselves in the blanket of victim, and inside their blanket fort let them continue their story, true or not.

    There is a fine line one should not cross, 'She was asking for it' comes to mind… but being a 'victim' should never allow them a pass on providing details.
    Demanding mindless acceptance of allegations leads to lots of stupid things happening, and is just as bad as those who would seek to completely downplay allegations.
    This type of treatment leads to the idea that someone can make horrible fake claims and face no downside to doing it.
    It creates an atmosphere where someone can just play a trump card to silence anyone they dislike, and others won't speak up for fear the of the victim blaming label.

    I have no idea if these allegations are true or not, but seeing the target fighting back and the otherside hiding in the blanket fort of 'victim' demanding people support them without question is concerning that perhaps this isn't the clear cut thing they claim.

  16. Castaigne says

    *researches*
    *grunts*
    Seems like, if the librarian scuttlebutt is any indicator, that he's going to get his ass chewed in court. Also seems that he gets invited to conferences…and then doesn't get invited back. Also, that he's not currently employed by a library and that's he's just being a slick consultant about "library future".

  17. Fabio Facchetti says

    "Don't look at evidence, don't question claims, believe our propaganda and attack those people."
    Anti-#Gamergate is getting closer to a fascist movement by the day.

  18. Castaigne says

    @Fabio Facchetti:

    Anti-#Gamergate is getting closer to a fascist movement by the day.

    …No offense, but HOW THE SHIT do a bunch of librarians and some internal clusterfuck have FUCK-ALL to do with GamerGate? Because in the links provided here and my own Google-Fu, there ain't no goddamn connection. In fact, the post where that "Don't ask for 'proof'." quote came from is right fucking here, and there's nothing on it that's even SLIGHTLY GamerGate related.

    So, I have to ask – what's your agenda here? Be plain-spoken about it.

  19. Craig says

    To the extent they believe this, #teamharpy and its supporters are logically, legally, and morally incoherent.

    You're being too charitable. Their position is completely insane. And you can bet they wouldn't be taking such a position if someone had accused THEM of sexual abuse.

  20. JWH says

    Of course … if he's actually a harassed folks at a conference, this whole thing could go Streisand on him.

  21. Alex says

    The suit asks for, among other things "an interim and permanent injunction preventing the defendants from broadcasting or transmitting or publishing or posting on the internet or world-wide-web defamatory, false and harmful statements or imputations concerning the plaintiff which are intended to lower his esteem, harm his reputation and cause him damage." Is this what we call "prior restraint" in these parts? How do the Canadians feel about "the most odiferous and despised remedy known to our courts"?

  22. Edward says

    @Thad,

    I understand, but in this instance, the allegations are vague enough – "he's a sexual predator who harasses women at conferences" that he would have a difficult time being able to prove he has never harassed any woman at any conference. Further, the definition of harassment seems vague enough that anything he does admit to doing could be used as the basis for their statements. "Mr. Murphy, how many women did you talk to at each conference? Did you inquire as to whether these women wanted to talk to you? Did you approach these women? Did you ever say anything complimentary about their appearance?" Etc.

  23. Dan Weber says

    Remember, you don't have to respond. The only way a troll can derail a conversation is if people engage.

    As for the post, I liked it. I read back over all my comments at the previous post about this and this really addresses many of the unsolvable conflicts involved in cases like these. There isn't one right answer, but there are attempts to limit the destructive force of wrong answers.

  24. Annie says

    I will say Rabey's tweet laughing at ruining Murphy's career has been taken out of context a lot in this debate. And yeah, if you go back and read it now, it sounds a bit like she's drunk on the power of ruining this guy, but. If you read the tweet at the time it was posted (I did), it was pretty obvious that she's laughing maniacally at something else. Murphy and Rabey are not, and have not been, equal players in the library world or even on Twitter. The idea that Rabey had the power to ruin his career was hilarious at the time. Currently she has 3089 Twitter followers (and she has gained many since the lawsuit) but Murphy has 14.7K. I'm not sure how the lawsuit has affected his numbers, but the difference in followers in May could be measured in orders of magnitude. In May, Rabey was about to be an unemployed librarian. He was being invited to headline conferences.

    The idea that she had the power to ruin his career was so ludicrous, it was hilarious. That's what the HAHAHAHHAHAHA is about.

    And here's the thing, a lot of #teamharpy's supporters support them because all they didn't say anything we didn't already know. All they did was publicly say what women have been telling each other on the conference circuit FOR YEARS. There is no corporate sexual harassment policy here. ALA conferences didn't even get a code of conduct until last December.

  25. Cecil says

    To Mike:… I believe the part of US law that Mike was missing is that you have to prove to some degree that when they said "xy and z" they knew it to be false. So it's not just a matter of proving himself innocent here, he has to prove they knew that he was and posted their statements to the contrary despite that knowledge. Now, if he were a public figure it means that he would have to prove the previous plus that they posted it with malicious intent in addition to knowing it was false.

  26. Nicholas Weaver says

    Don't ask for proof…

    I disagree with the sentiment, but I actually understand the logic behind it. Far too often these cases quickly degenerate into victim blaming.

    Look at the CBC asshole Ghomeshi: He got out, right from the start, with the classic blame-the-victim shit on Facebook. Initially, a lot of people believed him and still do. And if a whole bunch of women didn't immediately come out of the woodwork, so much so that his high priced crisis-PR firm dropped his sorry ass, he would have gotten away with it.

    Also, to be honest, don't doubt the victim is probably correct in at least 80% of the cases (and I'd bet 95%+). So as a dumb heuristic for the twittering masses, "don't doubt the victim", at least if you're gonna open up your mouth or keyboard before actually looking at the case, makes sense.

  27. Cecil says

    Mr. Weaver, I have to ask… In this case who's the victim? The only name is his, neither of the two ladies claim they were victims… So we believe him categorically and move on?

  28. Mike says

    @Cecil – I was just addressing Edward's immediate point, about proving the negative when accused of harassment. The question of malice isn't really germane to what Edward was talking about.

    Also, you've got it wrong. Knowledge of falsity is malice in this context. You don't have to prove knowledge of falsity when the statement was made about a private figure.

  29. Craig says

    @Nicholas Weaver: I'm certainly willing to believe that false accusations of this sort are in the minority (maybe even as low as the 5% that you suggest), but still, before you express any level of support for "Don't doubt the victim", imagine yourself on the wrong end of a false accusation. It might change your opinion.

  30. Craig says

    PS: I also suggest that you rephrase it to "Don't doubt the accuser" and see if you still feel good about it.

  31. Mikee says

    Maybe I'm making rash generalizations here, but it seems to me like progressives and the left tries to portray itself as having more of a fact based, pro-science, pro-logic, reasonable mind frame to their ideology, casting down religion as being less than ideal because it's based on faith instead of facts. But all of that falls apart when they have their agenda to pass, guns and GMO crops being prime examples of their own fear mongering based on pure bullplop opinion. Now we can add examples like this to that list of irrational, fact-free, unreasonable public policy opinions.

    Being politically neutral, it's really become apparent to me that both sides of the political debate are accurate in their opinion about each other, and they've both completely missed the mark on their opinions of their own agendas and ideology. Two sides of the same dishonest, lying, corrupt coin.

  32. Dion Starfire says

    I can see that "what this looks like" passage (quoted in the post) working, if it's followed by the qualifier "in front of the complainant".

    Yeah, you don't want to call a possible sexual harassment victim a liar to their face, when they're reporting the incident. Definitely, you should listen to their report without demanding proof (which feels very similar to being called a liar), judging, and/or blaming them.

    Of course, it's a completely different story when you're when you're investigating the incident. Then, you absolutely should treat reports from both sides as equally valid until you've got reason to doubt one or the other. Consider blaming the "victim" – again, they're equally capable of being at fault until you fully understand the situation. Finally, if you're responsible for deciding on your organizations response, you kind of have to judge, and should definitely demand proof of guilt.

  33. ShelbyC says

    Huh. Joe Murphy has claimed that he was falsely called a sexual predator, which I guess is a form of harassment and abuse. So I guess we should believe him…

    (Waits for teamharpy's heads to explode)

  34. Trent says

    Mikee, isn't it great being able to boil entire groups of people down to single solitary opinions that cover literally everything then laugh about the hypocrisy of the strawman you built? Remember, it's us against them, and they are EVIL ergo we are GOOD!

  35. Sami says

    Castaigne: Because #GamerGate has to be about hostility to all things that suggest that women are actually people.

    After all, if it's not that, then it's just a giant clusterfuck based on one bitter ex-boyfriend's proven-false claims about his ex-girlfriend, and that would be kind of crazy for thousands of men to jump on a bandwagon about, wouldn't it? A massive, massive shitstorm like #GamerGate, ultimately being about something that petty and trivial and stupid would be pretty pathetic, so therefore #GamerGate is about how womens is evil, and anything that suggests that women are actually human is anti-#GamerGate.

  36. says

    I am the "this blogger" referenced in this blog post. I'm commenting here solely to say that comments on my blog post were inadvertently closed. Because one of your readers took the trouble to write me from my about page, I thought others might have comments as well.

  37. Steve Lawson says

    The library world is a small world. Some of the people who support #teamharpy have had direct experience with Murphy, or have trusted colleagues who have had such experience with Murphy. Keep that in mind if it seems that people hastily chose to believe or support the claims of the defendants.

  38. says

    I think this is unfortunately an example of an ugly, ugly situation that is hard to resolve. I'd like to say that the following comment:

    We can and must take a stance of siding with victims. There needs to be a super clear message that whenever someone speaks up about abuse or harassment that they’ve experienced and encountered within a professional space (conference, work, whatever) that this person will be supported and believed.

    What this looks like:

    Don’t ask for ‘proof’.
    Don’t treat ‘both sides of the story’ as if they hold equal weight.
    Do not engage in any type of victim blaming behaviour.
    Listen to the victim. Do it. And don’t judge.

    Is absolutely wrong in terms of assigning actual guilt, but I can see it in the context of past experiences with some organizations where it was in reaction to events where the opposite was applied. The woman (often referred to in very, very ugly terms) was wrong, lying, angry, didn't get her promotion, etc, etc. etc. In some cases, people stopped bringing complaints to HR because they knew it would turn into a struggle session against them.

    On the other hand, this is wrapping the needle around the other stop and I think creates the situation where you do not realize that yes, sometimes people lie, or worse, there's miscommunication going on. It's ESPECIALLY problematic if it's applied to HR issues like discipline and termination from a job or group.

    I do know one thing, and this may be impacting his decision to take legal action– in many cases, the old saying about "Taking the high road" by not responding does not work– many will assume that a failure to respond is in fact a confession of guilt. A finding that he was defamed, even he cannot collect damages in the US, may go far to vindicating his position.*

    *Fair note. I have no idea if he is innocent, guilty or something else as regards the allegations.

  39. MVM says

    If you read the tweet at the time it was posted (I did), it was pretty obvious that she's laughing maniacally at something else. Murphy and Rabey are not, and have not been, equal players in the library world or even on Twitter. The idea that Rabey had the power to ruin his career was hilarious at the time. Currently she has 3089 Twitter followers (and she has gained many since the lawsuit) but Murphy has 14.7K.

    ^^^ 100% this

  40. ShelbyC says

    @Castaigne, that's kinda the thing about scuttlebutt, isn't it? Sometimes it's not an indicator.

  41. says

    Don’t ask for ‘proof’.
    Don’t treat ‘both sides of the story’ as if they hold equal weight.
    Do not engage in any type of victim blaming behaviour.
    Listen to the victim. Do it. And don’t judge.

    I'll take three out of four, with an emphasis as above. I use the fact that the truth is an known-unknown to counter the cognitive dissonance from believing both sides at the same time.

  42. Bob says

    > …No offense, but HOW THE SHIT do a bunch of librarians and some internal clusterfuck have FUCK-ALL to do with GamerGate? Because in the links provided here and my own Google-Fu, there ain't no goddamn connection. In fact, the post where that "Don't ask for 'proof'." quote came from is right fucking here, and there's nothing on it that's even SLIGHTLY GamerGate related.

    I don't see any connection to GG other than that I have seen such attitudes from certain particular anti-GG posts. I sincerely hope it is not a common belief as it is seriously misguided.

    Also, for whatever it's worth, I personally have been sexually harassed, the "hands down pants" variety, specifically. I had to confront the accused and, although it was a dispute over who did what, they managed to contradict themselves in their own statements after about 10 minutes of clumsy denials and they were fired shortly after I pointed this out. So I sympathize with the harassed, being one, but not to the point where we make unwarranted assumptions about guilt prior to knowing the evidence. That's inherently ridiculous.

  43. wodun says

    If they toss him in a river, and he floats, they know he is guilty and if he sinks, he is innocent. So simple a caveman could do it.

  44. Dan says

    One other thought– the tweet about ruining his career– would that constitute evidence of malice?

    Not under American law, no. Unfortunately, despite a general rule that words should be given their ordinary meanings, we use a lot of words in ways completely inconsistent with what the dictionary says. "Malice," in the context of defamation law in the United States, means making a statement knowing it to be false, or with reckless disregard to its truth. It has nothing to do with any sort of personal animus against the plaintiff.

  45. says

    Hello Nicholas Weaver,

    Good point about the past sometimes (and even the present once in a while) having embraced the opposite extreme of automatic victim blaming.

    I know how people in general tend to take things out of context, confirm their own biases, go all haywire about certain things (like SEX SEX SEX) and otherwise judge irrationally in quite predictable ways. All that said, I think John Q. Public is perfectly capable of understanding "golden mean," "innocent until proven guilty" and "wait to judge until the facts are in" — phrases I didn't exactly make up, after all.

    And if not? If in fact many or even most people can only either jump to one conclusion or the other…we're screwed either way. Pick yer poison.

    Btw, I'm just curious: How did you arrive at your 80-95+% confidence interval (level of significance 100% minus probably) for complaints being the truth, the whole truth and nothing but the truth?

    Bonus question: What do you think it will become if and when we do just "believe the victim"?

    PS: Dion Starfire and desipis, great point about the difference between how you treat the complainant to her (or his) face and how you actually investigate and judge the case.

  46. sinij says

    I am getting very crotchety due to people derailing discussions as a result of falling for some very obvious trolling.

    This is truly a low point for Popehat … unnamed posters.

  47. Ryan says

    Hey Ken, I don't know if you missed a few of us Canadians in previous comment threads, but while the burden for defamation cases in Canada is as you've described it, a couple of your other tidbits of information about speech protections in Canada are out of date: most notably, s.13 of the Human Rights Act has been repealed for some time now and speech cases are being evaluated through the protections of the courts, not tribunals. The SCC has placed a greater emphasis on speech protection in the last several years, with Grant vs TorStar Corp being among the definitive cases currently setting out how speech and defamation are to be evaluated: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7837/index.do (though it obviously doesn't match up precisely with the circumstances of this particular lawsuit).

  48. barry says

    in America, Murphy would have to prove that the statements about him were false to prevail on a defamation claim; in Canada, it's the defendant's burden to show their statements were true. This is a silly and censorious allocation of the burden.

    I can see both sides of this. One system says true statements can't be defamatory, and the other says reputation can be damaged by either kind of statement, but true statements are a defence.

    In Canada the burden is on Murphy to prove defamatory statements were made, then if the defendants have a "but it's true" defence, the burden is on them to show it. That sounds just as reasonable to me.

    It's only 'silly' in the same sense as other countries driving on the other side of the road is silly.

  49. GuestPoster says

    I always find defamation cases to be somewhat interesting. People in the US in particular have this view that speech is always, always, always good – and it's NOT. It is ALMOST always good. It is ALMOST always helpful, or at least not harmful. But upon rare occasion, it is harmful.

    Honestly, I think that defamation law is a bit too strict in the US (though I suspect I'd change my opinion were I ever a defendant). But the simple fact of the matter is – even if you make a statement of opinion based on disclosed facts: "This video on Youtube shows that Mr. X is a sexual predator", and the video just shows Mr. X hugging his wife, if you have a big enough voice? People are going to believe you. You are going to actively harm Mr. X via your accusations. Sure, he'd be found not guilty in the average court – but our court system doesn't exactly protect us against society, does it? He still might lose his job – his employer just can't suffer the rumors, or whatnot. And he has no legal recourse.

    Of course, the system in Canada seems too weak – it's never a good idea to put the burden of proof onto the defendant (although in cases like this… who really is the harmed party? Who is defending versus an attack?Should it really be down to who brings it to court first?)

    That being said, some of those online comments are delightfully horrible. For an exactly identical comparison: gun salesmen should really stop complaining about getting mugged at gunpoint. After all, they're supposed to stand for the second Amendment – shouldn't they be willing to take the occasional bullet to the brain for the team?

    Why people think that you should just 'suck it up' in the case of directly harmful speech is beyond me. And as our host says – the man might actually have a case. At the very least, he seems to be making reasonably specific claims about other specific claims, and not just saying 'waaa, they hurt my feelings'. He might win, he might lose, but either way it seems like a good-faith effort to use the legal system at it was nominally intended to be used.

  50. says

    The problem to me is " does the harm exceed the help" and in most cases, restrictions on speech do. In this case yeah, I'd say teamharpy may be getting their just desserts– but the same laws have been used against people making important political points, people simply stating uncomfortable truths, etc.

    Speech laws seldom stay in the nice neat corners their advocates claim (and often believe) they will. A precedent, once set, is hard to unseat. That's especially true about codes and laws that talk about "disrespect" or "harmful words" in the sense of hurting someone's feelings.

    Or as I put it to my students in a past class: "If you had powerful speech codes in existence in America, say, in the period between 1950-1965… who do you think would have been more likely to use them in the Southern States? The people attacking segregation or the people backing it?" A fundamental flaw IMO, many people have when thinking about these types of laws is failing to understand that they can and will be turned against them at some point. May take a while, may take decades– but it will happen.

  51. says

    Just to add some perspective, Nina de Jesus of TeamHarpy has made her opposition to "unrestricted free speech" known before

    http://satifice.com/octofice/2014/09/25/notes-from-an-unwitting-poster-child-for-free-speech/

    Which unfortunately puts her among the ranks of many in the current left who are basically authoritarian and hostile to free speech and other civil liberties that stand in the way of their particular agendas.

    That said, that's no reason not to support them as defendants in a free speech case, which, after all, even applies to neo-Nazis and other obvious opponents of the very principle of free speech.

    And that said, like PZ Myers infamous "grenade" post and the rhetoric flying around about Lena Dunham currently, I am troubled by the rather casual and flippant way people choose to defame (in the broadest sense, not necessarily the legal one) their opponents on forums like Twitter. But I wouldn't change a thing about the current high bar that US law sets for successfully suing over something like that.

  52. Hyena Dandy says

    Don’t ask for ‘proof’.
    Don’t treat ‘both sides of the story’ as if they hold equal weight.
    Do not engage in any type of victim blaming behaviour.
    Listen to the victim. Do it. And don’t judge.

    That's all well and good when it comes to interpersonal behavior, but I think they may not understand that a court of law is not the same as hanging out with your friends. If a person I know says another person I know harassed or abused them, I'll definitely be as kind and open as I can, and not judge, and listen, and care, and all that stuff. But that's very different from a court of law. If my friend says they've been raped, I believe them. I don't therefore think that an attorney shouldn't have to actually argue that the guy was guilty. The court of law must operate at a higher level than the court of 'Hey I know you.'

    That said, I do think that everyone should have good legal representation, be it in a civil or criminal suit. So I'm all for them getting money for an attorney, if they have none already, on those grounds.

  53. Dyspeptic Curmudgeon says

    It appears that Murphy's Ontario lawyers do not know the Ontario Rules of Civil Procedure. A plaintiff is entitled to serve a defendant, without leave of the court, if the claim is for (Rule 17.02(g) 'a tort committed in Ontario' or (i)' for an injunction ordering a party to do, or refrain from doing, anything in Ontario…'.
    However, Ms. Rabey does not reside in Ontario nor does Twitter have a business presence in Ontario (except over the web). AND, the grounds which provide for the entitlement to serve an Ontario claim, outside Ontario, are required to be set out in the Claim.
    So this Claim is defective. Given how far-fetched it is that a claim made by a Nevada resident against a Michigan resident is being brought *in Ontario*, it would seem evident that Ontario is the forum non-conveniens for an action against Rabey.
    Rule 17.03 provides that a judge may, by Order, allow service outside Ontario, but I doubt that that will fly.
    Moreover, Rabet can move to have any such service set aside, and/or the action dismissed
    on the grounds that Ontario is not the forum conveniens for the matter, *without* thereby attorning to the jurisdiction of the Ontario judicial system (unlike some US states, see New York, for example, where bringing *or* defending a Motion is an attornment to the court's jurisdiction).
    I also note that the Claim fails to state any grounds to tie the two defendants together by way of "conspiracy".
    Ms. de Jesus is in a not so enviable position, but then again, it is unclear (need case-law!) whether what she wrote was *for judicial purposes* published in Ontario. The injunctive relief sought is waaay over the top.

  54. Eggo says

    Nina de Jesus cares more about "community accountability and transformative justice" than that silly American "freeze peach". Let her live under the law she champions, and be held accountable for her speech.
    Maybe it'll help transform her opinion.

  55. says

    One thing I found in the complaint was this statement by Jesus on her blog:

    In case people have forgotten, we are neither the police nor the judicial
    system. We do not have to adhere to their evidentiary requirements. We
    do not have to assume innocence. We don't have to build a 'case' against
    someone. We don't, in actual fact, require 'proof that would hold up in a
    court of law. We don't need to gather evidence and conduct
    investigations.

    That's included in the evidence, but that statement is well, damning. Most organizations understand that they are not law enforcement or judicial organizations and cannot provide the same procedural protectoins. But this– this is practically struggle session style comments. The assumption that attempting to determine innocence or guilt is quite simply unimportant– well, again, it's a pretty ugly sentiment that makes Mr. Murphy's allegations seem that more likely.

  56. Bob says

    I think in any slander / libel case, the burden of proof should always be 100% on the plaintiff. But I do take issue with this quote:

    "We can and must take a stance of siding with victims. There needs to be a super clear message that whenever someone speaks up about abuse or harassment that they’ve experienced and encountered within a professional space (conference, work, whatever) that this person will be supported and believed.

    What this looks like:

    Don’t ask for ‘proof’.
    Don’t treat ‘both sides of the story’ as if they hold equal weight.
    Do not engage in any type of victim blaming behaviour.
    Listen to the victim. Do it. And don’t judge."

    W T F? You should treat both sides with equal weight. Innocent until proved guilty. Not blaming or judging the supposed victim is good, but you should definitely require proof before any form of judgement is rendered (either public opinion or through the legal system). Siding automatically with one side predjudices the public against them, just like every woman that has made a false rape accusation has done irrepairable harm to actual victims.

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