New York Times Co. v. Sullivan: My Love Letter To The United States Supreme Court, And The First Amendment

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions–and to do so on pain of libel judgments virtually unlimited in amount–leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.

It was fashionable well before 1964, when Justice William Brennan wrote those words, to criticize the United States Supreme Court for "judicial activism" in which the Court stretches the words of the Constitution beyond their plain, or literal, meaning to invent new freedoms beyond those obviously meant by James Madison and other authors of the United States Constitution.  In 1964, it was obvious to L. B. Sullivan, the Public Safety Commissioner of Montgomery Alabama, that the First Amendment did not permit the New York Times to publish an advertisement falsely attributing barbaric treatment of Martin Luther King and other civil rights protesters to the Montgomery Police Department.

After all, the words "Congress shall make no law … abridging the freedom of speech, or of the press" don't explicitly say anything about state law, or the law of libel, or about the importance of free debate on political issues.  L. B. Sullivan convinced a jury of twelve of his fellow white citizens of Montgomery that the New York Times had published these false statements:

In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.


Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times–for "speeding," "loitering" and similar "offenses." And now they have charged him with "perjury"–a felony under which they could imprison him for ten years.

When in fact the protesters at the Alabama capitol sang "The Star Spangled Banner," not "My Country, 'Tis of Thee," and Dr. King was arrested only four times in Montgomery, not seven times.

So of course Mr. Sullivan was entitled to a libel judgment, to protect his reputation and that of the Montgomery Police, from outsiders such as the New York Times who printed lies, libel, and calumny without knowing the true facts.  That Mr. Sullivan was a government official, and that the false criticism concerned the government of which he was a part, meant nothing.  Facts is facts, and a false statement about the Montgomery Police Commissioner is every bit as actionable as a false statement about the lowest bum on Montgomery's skid row.

Except that it isn't.  Meddling Justices of the Supreme Court found, for some reason, that it's important for newspapers, and private citizens, to speak out about outrages such as firebombings, police beatings, and school padlockings, even if they get details like the song protesters sang as they were clubbed over the head, or the number of times Martin Luther King was arrested, flat-out wrong.  According to the activists of the Supreme Court, in order to maintain a libel action, a public figure like L. B. Sullivan would have to prove actual malice, that the statements over which the suit was filed were not just false, not just disparaging, but utterly unreasonable, founded on no investigation, and made with no intent save to harm reputation.  Something like (since a dead man can't file a defamation action):

L. B. Sullivan sexually molests puppies every Sunday morning in the back alley behind the Piggly Wiggly.

That's clearly malicious, and if by some miracle the cyborg body of L. B. Sullivan lives on today, I apologize to him.

But the Court held that the right of the public to criticize their government includes the right to criticize public officials, and that that right is too important to have it bogged down by lawsuits about whether Inspector Callahan, the San Francisco police detective who killed an unarmed suspect in the Scorpio murder case, fired six shots …

Or only five.

Of course, for those who disapprove of all this debate, all this criticism of the better sort of people like L. B. Sullivan, and all this horrid untidiness in which the hoi polloi are free to say the vilest things about government officials, there's a better land.  A land where ordinary people don't have the right to exaggerate the number of times some uppity protester got arrested.

That land is Canada.

In Canada, you'd better watch what you say if you want to criticize The Man.  You'd better make sure every word is the literal truth, and that you can back it up with records.

Ask Ezra Levant.

Ezra Levant, the Canadian blogger who was just ordered to pay a $25,000 judgment to Giacomo Vigna, a Canadian government official and lawyer, for … making fun of Vigna.

Giacomo Vigna is a professional censor.  Levant, who has a history as a free speech activist and opponent of Canada's censorship commission, has been censored for the offense of … criticizing a censor.

Specifically, Vigna is an attorney for the Canadian Human Rights Commission, the government body charged with censoring hate speech.  In March 2008, Levant made fun of Vigna for his successful efforts to halt a hearing in which staff of the Human Rights Commission were to be cross-examined about their curious activities on the internet (among other things, former HRC lawyer Richard Warman, a professional plaintiff, used a pseudonym to reveal the name of and post an apology by an ex-white supremacist on an internet forum populated by neo-Nazis).  Vigna claimed, in an effort to halt the hearing, that:

I don't feel in a serene state of mind to proceed with the file today. I don't feel very well. I feel dizzy, I feel anxiety, and I am not in a serene state of mind to proceed with this file today.

And got the hearing, in a high-profile and politically charged speech prosecution, put off with the promise he would produce a doctor's note.  For which Vigna was richly, and deservedly, mocked by Levant.

Levant's mistake?  In mocking Giacomo "Serenity Now!" Vigna after the fact, Levant was unaware that Vigna had in fact produced a doctor's note.  Perhaps something along the lines of:

Please excuse Giacomo from court.  He was not in a serene state of mind last Tuesday.  He didn't feel very well.  He felt dizzy.  He felt anxiety.  He was not in a serene state of mind to proceed with a hearing that would have been embarrassing to the government agency he serves.  I should know.  I am a medical doctor.  I own a mansion and a yacht.

Of course, in a world where doctors prescribe marijuana for "high anxiety" and the like, I'm sure it was easy for Vigna to get a doctor's note.  Just as easy as it was for Levant to overlook that fact, as the note was never put into evidence in the trial Levant was covering.

And a costly mistake it was.  It cost Levant $25,000, on top of untold legal fees, to learn that lesson.  And it will cost him more on appeal, the outcome of which isn't certain in a country as hostile to free political speech as Canada.

Levant, wisely, hasn't said a word about the verdict.  Neither have many of other Canadian bloggers from whom we'd expect to hear after a travesty like this.  They're probably taking stock of their options, with their lawyers, because they're being sued by the censors themselves.

And that's the point.  Vigna didn't file this suit to salvage his reputation.  A prosecutor who would beg off from trial by whining about his inner feelings will have no reputation to save once word gets out.  Vigna filed this suit to stifle Levant's legitimate criticism of his agency and his methods.  To make an example of Levant, and to warn more timid souls who would dare to criticize the censors of the Canadian Human Rights Commission.  To censor an inconvenient critic who couldn't be silenced by the usual accusation of hate speech.

And so I sit here, safe in my American home, writing of Ezra Levant's misfortune in living in a country where he could be bankrupted for making a small mistake of fact in criticizing the actions of a government official.  A government official who could sue me for saying many of the same things, had I the misfortune to live in his miserable country.

After all,  I am explicitly comparing Giacomo Vigna to a man who ordered the arrest and beating of Martin Luther King.

I have a lot to be thankful for this holiday.  I'm thankful for the First Amendment, and I'm thankful for my activist Supreme Court, which invents rights out of nowhere to protect me from government officials like L. B. Sullivan, and like Giacomo Vigna.

Oh, Yeah? Well, You're Guilty of DOUBLE SECRET REVERSE CHILL!!!

I keep thinking that Canada's champions of censorship can't get any more ludicrous and offensive. And they keep coming back and saying "Oh, Ken, ye of little faith." Well, they don't actually talk to me. Except in my head. You know, I think I'm straying from the point.

Canada's appalling Human Rights Commissions — which we have frequently criticized here for their tendency and capacity to punish unpopular speech through bureaucracy without due process or remedy — have been under heavy political fire in Canada recently, as the public starts to grasp their illiberal censorious nature and the politicians sense the way the wind is blowing. But the Human Rights Commissions and their apologists are not going down without a fight. And a new hero has emerged — Richard Warman need no longer shoulder the mantle of nanny-state wiffle-life censorship alone. No, Chief Commissioner Jennifer Lynch has stepped up.

Sort of.

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The Internet Is A Powerful Ally

We've written numerous times about Canada's censorious speech laws. We've lauded Ezra Levant, a man with whom some of us agree on almost nothing but whose tenacious defense of his own right to free speech we admire.  We've beaten that horse.

And we're going to beat it again.

Had I been charged with hate speech 10 years ago, I could not have fought back as effectively. If all this had happened in 1996 instead of 2006, few would have known anything about my battle. YouTube, which brought my story alive for 600,000 people by the time the traffic died down, debuted only in 2005. Before that, there was no universally surfed repository of current event–themed videos, and bloggers were much less prevalent. And without the credit card donations made possible by PayPal (which was started in 2000), it’s unlikely that I could have raised the money to cover my legal expenses.

In short, the Internet saved me. In that sense, my story isn’t just about free speech. It’s also about the way new technology has leveled the playing field between big government and private citizens.

Levant faced a lifetime ban on certain forms of speech, for publishing cartoons.  This is a sample of Levant's self-defense before a bewildered government drone, who expected to be the one conducting the hearing and asking the questions.  Thanks to Youtube, Google, and blogs, probably a million people have seen it.

Of course it's true that in 1996 the idea of charging a news magazine publisher with "hate speech" for publishing cartoons, even in a nation like Canada which lacks vigorous speech protection, would have been considered ridiculous.  Legal theory moves on.

But not as fast as technology.  The theocratic government of Iran suffered protests in 1999 that were as vigorous as those going on today.  The rest of the world paid little attention, not because it didn't care, but because it didn't know.  The basiji and the mullahs made sure of that.

We in America take our liberties, and our internet, for granted.  I recently read of a French court decision that declared internet access, at least in a liberal technological society like France, a human right.  At the time I laughed, and filed it away as something not worthy of blogging.  Stupid Frogs.

I'm not so sure now.  Maybe the French got it right.

Canada To Make It Illegal To Discriminate Against . . . Um . . . They'll Let You Know If You've Done It

We've blogged before many times about how Canada's Human Rights Act is used as a weapon by unfettered bureaucrats and censorious serial litigants to punish unpopular (often justly unpopular) ideas. You can see some of our relevant posts here. Now it appears that the Canadian Human Rights Commission has discovered a new and exciting way to chill, and retaliate against, unpopular speech — by broadening the scope of its power to punish discrimination against, and speech unflattering to, "social condition."

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The Beginning of the End for Canada's Crusading Censor, Richard Warman

I'm been unforgivably lax in my schadenfreude. I've taken far too long to note the public humiliation of the loathsome Richard Warman, Canada's censorious serial litigant and crusader against incorrect speech, a man whose contemptible excesses we have covered before.

Warman's weapons and sources of income are Canada's Human Rights Commission and its Human Rights Tribunals, upjumped bureaucratic star chambers with the power to punish various species of bigoted and moronic speech if it offends anyone — even if Warman is the only one to read and be offended by it. But now Canada's professionally censorious human rights apparatus — already under heavy fire from left and right — has turned on its one-time favorite son. Ezra Levant, a long-time foe and critic of Warman, notes that the Human Rights Tribunal has sharply and publicly criticized Warman. Why? Because Warman likes to hang out on racist internet sites under an alias and post racial invective, hoping to draw out similar invective from others so that he can haul them before the Tribuna, to his profitl. Warman, in other words, is a professional race-baiter.

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Discretion Is The Better Part of Censorship

People willing to empower the state to punish a wide and ambiguous range of conduct — say, "offensive speech" — generally try to address concerns about abuse with pragmatic arguments. "There's no way the government will have the time or resources to punish all offensive speech," they say, "so they'll only go after the worst of the worst."

The problem, of course, is that the people exercising this discretion are (1) human and (2) bureaucrats, and therefore can be expected to exercise their discretion not to punish some objective Platonic ideal of the "worst of the worst" conduct, but to pick and choose battles based on their personal, cultural, irrational prejudices, informed strongly by which political and social groups hold the most power in their sphere of influence at the moment.

Hence under Canada's entirely thuggish and loathsome Human Rights Commission system, bureaucrats — who previously vigorously prosecuted a Christian preacher for spouting nasty Biblically-derived anti-gay rhetoric, culminating in an order that the preacher can never again "disparage" gays — can now decline to pursue Muslim publications saying that gays ought to be killed, infidels are inferior, Jews are evil, etc. The HRC's rationale is transparently bogus; it claims that the Muslim publication singles out groups like women and gays and "infidels", not individuals — yet the preacher's screed was just as vague.

The truth is that the HRC, like any body empowered by the people to pursue "offensive speech," is guided by its own particular constellation of beliefs. One of those beliefs is that Christian "hate speech" is scary and dangerous and Muslim "hate speech" is not. (This is closely related to the belief, deeply cherished in academia and by people who act as if they are in academia, that only white conduct towards non-whites can be racist.) It would be just as easy to imagine a new pack of bureaucrats who believed the opposite. How to govern such discretion? Don't give it to them in the first place. Duh!

Amusing (Sort of) Developments In the Right Not To Be Offended In Canada

We've blogged about Ezra Levant many times before. He's the Canadian lawyer and writer who has been a target of both the Human Rights Commissions in Canada (based on his publication of the Muhammad cartoons) and of the HRC's roving Inquisitor Richard Warman (based largely on his relentless campaign to expose Warman as a censorious, totalitarian git).

A couple of new developments:

1. That (relatively small, I suspect) segment of Canadian Muslim society that seeks to censor and punish offensive speech is trying a new tactic on Levant to prevent publication of Mohammad cartoons: they are claiming a trademark on the image of Muhammad. Any image of Mohammed (pbuh), so far as I can determine. You've got to give them points for creativity. (By the way, a similar argument has been used unsuccessfully by the United States government in support of flag burning laws; the government argued that the United States owned the flag and therefore could forbid its desecration).

2. The second development? Well, you might remember the strange story of Giacomo Vigna, who threatened to sue Levant after Levant made fun of Vigna for a risible incident in which Vigna told an Human Rights Tribunal proceeding that he was unable to go forward with that day's star-chamberish exercise in censorship because he was not emotionally able:

don’t feel very well. I feel dizzy, I feel anxiety, and I am not in a serene state of mind to proceed with this file today.

I have a lot of things worrying me right now and I don’t want to elaborate, but my colleague said, Mr. Fine, there are some certain incidents that have occurred which I don’t feel at liberty to elaborate right now, which have had an impact on my ability to proceed in a professional way on this file, at least for today, because I wouldn’t be rendering the Commission a just service by proceeding in this condition.

I would give my left nut to have seen Vigna say this in court in front of four or five of the federal judges I've appeared before. The response would have warmed my heart until the stars went out.

Anyway, looks as if Vigna is going to carry through with suing Levant for crassly publishing transcripts suggesting that Vigna, in addition to being a censorious thug, is a whiny girl's blouse. Except rather than just arranging to have Levant served through his attorney, or by some other rational and professional method typically used by lawyers, Vigna has sent an antenna-wearing process server to harass Levant's parents, with whom Levant has not lived since 1990. Classy!

I really hope that this critique doesn't impede Vigna's serenity. Mr. Vigna, perhaps some herbal tea, and some soothing music? I hear that works wonders.

Canada Commences Censorship Court Charade

Andrew Coyne of Maclean's is liveblogging the British Colombia Human Rights Commission's show trial of Maclean's and Mark Steyn, accused of violating Section 13 of Canada's Human Rights Act (which prohibits expression that has the potential to expose a group to hatred or contempt) before the Kafkaesque star chamber that is the HRC based on the article "The Future Belongs to Islam." Steyn's critics filed the Human Rights Commission complaint after Maclean's refused to give dissenters free space for an unedited rebuttal, which was their primary demand.

The HRC's conviction rate for people accused of Section 13 violations is 100%.

We've blogged about Canada's foolish and contemptible prosecution of Steyn before, as well as the abuses under Section 13 of Canada's Human Rights Act.

I hold no brief for Steyn. He's a competent writer, but I disagree with much of what he has to say. But as I am not a hysteric or a thug, that doesn't mean that I want him punished for saying things that offend or annoy me. Steyn's accusers say that Steyn's writing exposes Canadian Muslims to hatred, suspicion, or contempt. But to what does this prosecution expose them? The prosecution establishes that a subset (a small one, I suspect) of Canadian Muslims believe that they should be able to dictate what Canadians say and write and print, and that a portion of the government of Canada is indulging them. How should Canadians react to that, if not with suspicion and contempt?

There seems little chance that Steyn and Macleans will emerge from this without some punitive order from the Human Rights Commission. But such a prominent response may not serve the HRC's long-term interests. There are increasing signs that Canada's politicians have become embarrassed by the HRCs and their feckless and fashionable abandonment of cherished rights. A decision penalizing Maclean's and Steyn — for a piece that no society that calls itself free could reasonably punish — may be a nail in the HRC's coffin rather than a feather in its cap. We can hope.


Note: Easily offended Canadians, this post is subject to our Special End-User Agreement.

Update and correction: Commenter meinbc correctly notes that I conflated the Canadian Human Rights Councils (the prosecutions of which are adjudicated, sort of, by the Canadian Human Rights Tribunals) and the British Columbia Human Rights Tribunal, before which the Steyn matter is pending. I also conflated Section 13, the hate-speech provision of the Canadian Human Rights Act, with Section 7.1, the hate-speech provision of the BC Human Rights Act. However, the operation of the BCHRT and the CHRT appear substantially similar, the political issues appear substantially similar, and Section 7.1 contains the same "likely to expose a person or a group or class of persons to hatred or contempt" language as Section 13.1. I would welcome input from some of our Canadian visitors about how the analysis of the two should be different.

He who fights with Monsters might take care lest he thereby become a Monster

Exhibit A: Canadian attorney Richard Warman, who while he probably started his career with good intentions has become an advocate for abuse, a vexatious serial litigant, a censor, an internet troll, a female impersonator on Nazi-oriented web forums ("not that there's anything wrong with that" but more below the jump), and it now emerges, placed the life of a total stranger in jeopardy just for fun.

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The Arab American News Understands What Richard Warman And Warren Kinsella Don't

We've written a number of times about the travails that Ezra Levant and Mark Steyn face before Canada's Human Rights Commissions, a set of administrative barely-courts whose primary purpose seems to be to punish Canadians for speaking political opinions deemed unacceptable in certain circles of the multi-culti left. We'd never have heard of Levant, and probably wouldn't read Steyn, both of whom have opinions with which we disagree about Muslims in Canada and around the world, but for these prosecutions which seem to be designed solely to punish speech. We'd ignore them, but we're now reluctantly fans of both.

The Arab American News writes:

Runner-up [for Canada's Tenth Annual Press Freedom Awards] was Mark Steyn, who was nominated by Maclean's for his article in their magazine, "The Future Belongs to Islam." The Canadian Islamic Congress brought charges against Maclean's in various human rights commissions across Canada, claiming that the article constitutes a hate crime. The second place acknowledgement by the Committee serves to illustrate the self-defeating nature of the complaint, which has given Maclean's, the article, and Steyn publicity which they ill deserve.

Tens of thousands of people have read of Levant, now famous for his publication of the banned Danish Muhammad cartoons, and Steyn, a prominent journalist in Canada, Britain, and presumably other podunk countries, who'd never have heard of either had they not been sued for speaking their minds.

The Arab American News probably disagrees with Levant and Steyn more than we do, but we agree with their editorial on the importance of speech and the ridiculousness of those who use legal process to censor it. If someone is hateful or merely wrong, criticize, mock, or just ignore what he has to say. Beat him in the realm of ideas.

But if you sue or censor, you'll make him a martyr, and spread his message more effectively than he ever could.