News -- and a blogger defence fund?

• I was interviewed on the XM satellite radio channel "POTUS '08". Click here to hear it. I'm not sure how a radio channel dedicated to the 2008 U.S. presidential election found a way to dedicate 15 minutes to a case of Canadian censorship, where the CBC's several radio channels have been silent on the subject.

• One of Canada's great journalists, Peter Worthington, weighs in.

• My TVO interview is now posted to the Internet, here. I've seen some blog commentary that Steve Paikin was too tough in his questioning of me. I don't think so; if anything, he made a generous allocation of airtime to me, and restated my views where necessary to the panel that followed. I do think Paikin was too focused on the subject matter of the cartoons. To publish or not to publish them was a news story two years ago; today's news is that a government agency is interrogating a journalist for thought crimes. It's not really important what the particular thought crime is -- although my particular thought crime, offending radical Muslims, may explain the CBC's silence on the subject.

• I watched a few minutes of the discussion panel that followed, and Ziyaad Mia said something strange -- that I had tried to ban cartoons once, myself. At first, I couldn't for the life of me figure out what he was talking about. I think I know: When I was a university student in the 1990s, the campus newspaper ran a cartoon that I regarded as anti-Semitic. I don't remember the details of it -- I think it compared the State of Israel to the Nazis.

But I didn't call the police, or the human rights commission. I didn't sue -- or riot or commit arson. I wrote a letter to the editor of the paper, and tried to organize others to do the same. Without digging up that old letter to refresh my memory, I'd like to think that I would have complained that the newspaper was published with the mandatory dues collected from students -- a tax -- and that they should publish that crap with their own money, not mine. If anyone can dig up my letter -- if anyone cares -- I'll happily publish it here.

The fact that Mia can't distinguish between my liberal approach to political disagreement -- using peaceful, non-coercive methods, writing letters and calling for political accountability of a student newspaper funded by student money -- as opposed to the illiberal approach of state censorship of private media and private citizens, was a pretty weak rebuttal. Besides being factually wrong, it's a personal attack, an attempt to paint me as a hypocrite. Even if I were, what does that have to do with the principles at stake?

Paikin's final question to me posed the same sort of query: am I being intellectually consistent? After all, as the great legal scholar and intellectual, Warren Kinsella, has written, I am a defamation lawyer, and have represented both plaintiffs and defendants, and I have occasionally been a litigant myself. Kinsella says I'm a "fraud" and "full of crap" because I believe defamation law is legitimate law, but believe that government censorship through human rights commissions isn't legitimate.

That's not a real argument, of course. Like Mia's, it's an attempt to discredit me personally -- not my ideas. As I told Paikin, I support laws against other forms of speech, like fraud, forgery or copyright violation. Kinsella sets up a false dichotomy: I must either support all legal restrictions on speech, or none; I must either support both real courts and kangaroo courts, or neither.

Defamation law has evolved through 400 years of legislation and litigation, and is an essential part of our British legal tradition. It strikes a balance between the rights of plaintiffs to protect their reputations and the rights of defendants to criticize those reputations (and the rights of the public to hear different points of view). There are a dozen lawful defences to such a lawsuit, including truth and fair comment. And, of course, it is heard by real courts of law, with even older traditions of natural justice.

I've sued and been sued under defamation law. I believe some cases are valid, and some aren't -- just as some cases of fraud are upheld, and some aren't. I just don't believe that government censorship, as a newfangled, politically correct species of law, is either legitimate or comparable to other centuries-old jurisprudence.

• The above is far too substantial a rebuttal to Kinsella, who is merely engaging in some spin -- his specialty -- for his friend, Richard Warman. That's actually what surprised me the most about Paikin's interview: that he quoted a turbo-partisan dirty-trickster in what was actually a debate about ideas.

I don't think Kinsella is a thinker; he's a doer, or more accurately an undoer. And his goal here was to confuse and chill the growing media scrutiny of human rights commissions generally, and Warman in particular. In a series of over-the-top blog posts (here, here, here, etc.), he has threatened a number of Warman's critics with defamation lawsuits if they didn't stop. It was classic war room style: stampede your opponents with enough threats and half-truths to panic them into a hasty over-reaction. To my regret, that happened to one of my favourite bloggers.

That's not defamation law, by the way. Defamation law is conducted through court filings and sworn testimony. Kinsella was clearly trying to avoid defamation law, by dressing up a hyperventilated blog entry as something legal and serious, rather than his regular partisan pap.

Kinsella and Warman are lawyers by profession, but they try to avoid real lawsuits -- better to win by the mere threat of one. Compare their high school braggadocio towards little bloggers, with this rather meek demand letter sent to the Post in response to a column I had written about him. It was properly ignored; Warman didn't dare sue a monied defendant with real lawyers, and Kinsella chose his paycheque over speaking up for his principles. Unlike spurious human rights suits, a defamation action here would neither be a sure thing nor a cash jackpot.

I get defamation threats all the time, like this one, just this week from Syed Soharwardy. (Here is my reply.)

That reply is not just me being lippy; it's knowing the difference between empty, blustering, Kinsella-ish threats made as a political tactic, and a real legal problem. (I'm pleased to say that, in nearly four years of publishing, the Western Standard was never once served with a defamation lawsuit, despite receiving 50 or so Kinsella specials. Getting your facts straight is the best defence, of course. But far fewer lawsuits are settled because of the facts and law of a case than because of the fight itself.)

All of this is a lengthy preamble to something I've been thinking about these past weeks: a legal defence fund for people who are vulnerable to being blown over by Kinsellian huffing and puffing. The National Post and Maclean's don't need help, but most bloggers do. My observation is that bloggers make defamation law errors very frequently -- not that they engage in real defamation often, but that they overreact to the first whiff of gunpowder, and cower before any schmuck with a lawyer's letter, because they do not know their defences under defamation law, and even if they did, they feel they can't afford to exercise them.

The point here is not to oppose all defamation suits against bloggers; on occasion, bloggers will be in the wrong, and the right response is to correct or apologize. Unlike human rights inquisitions -- which are always immoral -- some complaints against bloggers will have merit. The point, rather, will be to protect bloggers against political attacks masquerading as defamation threats. And that's what should make this task less enormous than it might sound: if my experience at the Western Standard is any guide, almost all of the work will be merely fending off folks who were angry enough to spend $500 to get a lawyer to draft a demand letter, but have neither the legal case nor the financial resources to file a proper statement of claim, let alone run a trial.

It is my anecdotal observation that the preponderance of such threats come from the domestic left or Islamic fascists, and I imagine that most of the bloggers who will need to be protected will come from the conservative side of the spectrum. But not all; at the magazine, we received demand letters from provincial Tories upset with our coverage of a scandal. And I can think of at least one Liberal blogger whose case -- not defamation, but media law nonetheless -- I'd love to take.

I would imagine that such a defence fund would be financed partly through the pro bono contributions of defamation lawyers like myself, and partly through dues paid by bloggers into a fund -- say, a dollar a month. I imagine it would be a non-profit corporation, overseen by a board scrutinizing revenues and expenses. There would have to be clear rules of when to take an engagement -- a written "insurance policy", including rules to avoid the moral hazard that insurance creates.

Of course, the larger threat is not nuisance defamation suits, for which the legal system has built-in suppresants ranging from the plaintiff's own legal fees and disbursements to the commendable Canadian rule that the loser pays a portion of the winner's costs. The larger threat is human rights commissions of the sort that have gone after Mark Steyn, Free Dominion, Catholic Insight and others. These are rarer than defamation threats, so far, but they are far more worrisome. I think we need to wait a few more months to see how the current media blowback against commission bullying plays out.

There are details to work out, but the concept is sound. If I were a leftist, I'd call it a blogger's union. It's really a mutual aid society, where bloggers pool their resources to afford together what they cannot get on their own: competent legal advisors who aren't easily bamboozled by the Kinsellas and Warmans of this world.

I look forward to reader comments on this idea.