I've been threatened with another lawsuit
In 2006, I was hit with two identical human rights complaints because I published the Danish cartoons of Mohammed in the Western Standard magazine. We were simply doing what news magazines do – publishing the news. But an anti-Semitic Calgary imam named Syed Soharwardy and the intolerant Edmonton Council of Muslim Communities complained to the Alberta Human Rights Commission that I “discriminated” against them, and demanded cash and an apology from me. Since then, their fatwa has been prosecuted by the Government of Alberta, using taxpayers’ dollars and government bureaucrats.
Instead of bowing my head in submission, I decided to fight back, publicizing the Alberta government’s January, 2008 interrogation of me in videos that have now been seen well over 500,000 times on YouTube.
Over the past month, the public’s reaction to seeing their government interrogate a journalist has snowballed into a national discussion about freedom of speech, freedom of religion, and the separation of mosque and state. What started out as an issue reserved to the blogosphere and talk radio has jumped into the mainstream media, and even into Parliament. To my delight, the Canadian public – across the political spectrum – has been overwhelmingly supportive of free speech and critical of these Orwellian commissions, and groups like the Canadian Association of Journalists and PEN Canada have recently weighed in, too, and very vigorously.
We’re winning in the court of public opinion – and I say “we”, because it was the blogosphere that moved this story from the “undernews” to where it is today.
Well, now I’m being threatened with a lawsuit because of our campaign for freedom.
Just before the weekend, I received an e-mail from Richard Warman, the former investigator for the Canadian Human Rights Commission, who quit the commission in 2004 to become the commission’s biggest customer. Approximately half of all complaints filed under the Canadian Human Rights Commission’s section 13 “idea crimes” provision have been filed by Warman. The CHRC has a 100% conviction rate under that section, and besides ordering the poor shleps Warman complains about to pay fines to the government, they’re often ordered to pay thousands of dollars to Warman himself, too, for his “hurt feelings”. Unlike the paycheque he got when he used to work there, the cash he gets from commission fines is tax free.
Warman and his friends at the CHRC aren’t hitting me with a human rights complaint – not yet, anyways. But he is threatening me with the most bizarre defamation lawsuit I think I’ve ever encountered.
It’s not the first threat I’ve received from him; back in December, when I mentioned him in passing in a National Post Op-Ed, Warman fired off another threatening letter to me. You’ve got to read it. I mean, really -- it included the complaint that I dared to call him “anti-racist”, rather than anti-racist. That’s right: the fact that I used quotation marks around those words was one of the reasons he was threatening to sue the National Post and me.
If that was Warman’s most petty complaint, his most ironic complaint was that I called him a censor who abused the legal system, and that if I didn’t immediately censor myself with a retraction and apology, he’d hit me with a lawsuit. That blissful lack of self-awareness would be cute if it wasn’t accompanied by a threat – sort of like when Warman encouraged some young rowdies to “take the piss out of… people who are so pompous and so full of themselves” by assaulting them with a cream pie. It was unsettling to watch a lawyer conspire in the commission of an assault.
As a publisher and columnist, I’ve seen dozens of letters threatening defamation lawsuits, and I didn’t think much of his December letter other than that it confirmed to me that Warman was indeed what his track record of human rights complaints would suggest: he truly is the most easily offended man in Canada.
Warman hires a lawyer
Well, Warman has just sent me another letter, quite similar to the first. This one was written by a Toronto lawyer. You can see it here. It’s ten pages long, but most of that is simply rehashing several of my own blog posts. The rest of it is a mix of vanity, self-righteousness, hyper-sensitivity and plain old inaccuracies. There’s nothing wrong with that – it’s called politics, or the clash of ideas. But normally such self-congratulatory flatus is posted on a blog, not dressed up as a threatened lawsuit.
I’m a defamation lawyer myself, and if I had to sum up Canadian law in four words, it would be this: get your facts straight. If your facts are correct, you have the right to your opinions on those facts – even extreme or radical opinions. So Warman’s complaint isn’t really a threat of a lawsuit. It’s a letter to the editor.
And that’s the problem here. Warman is so used to operating in kangaroo courts – so used to human rights commissions that are run by non-lawyers, with arbitrary procedures, no fixed rules of evidence, no meaningful standards of guilt, where truth is not a defence and fair comment doesn’t exist – that he thinks he can take his Orwellian thinking out from the cloister of these star chambers into the real world. That’s my earlier point: I don’t think Warman even knows how ridiculous he looks.
The doctrine of fair comment
Warman may not share my opinion that he wastes taxpayers dollars, or acts as a censor, or that human rights commissions are a joke, etc. And his opinion might even be more reasonable than mine (it’s not). But it’s not unlawful for me to have my views. Not that my views are particularly radical – many of my exact words are echoed in the language used by PEN Canada, the CAJ, the head of the Canadian Civil Liberties Association, Noam Chomsky(!) and a dozen newspaper editorial boards across the country. That might hurt Warman’s feelings, but hurt feelings aren’t the test of defamation law.
Most everything in those blog posts was my political opinion. I did assert a few facts: I wrote that Warman encouraged some young ruffians to assault a man with a pie. That’s not a matter of fair comment, it’s either factually accurate or not. Gentle reader, click here and tell me whether that fact is true or not. I’m just not sure how Warman can deny that, but it will be interesting to watch him try.
The other factual assertion I made is that Warman himself planted anonymous posts on the Internet sites that he was stalking for a complaint. Again, it’s pretty tough for Warman to take issue with that, given that both he and commission staff admit under oath that’s how they operate.
Well, Warman has tried to deny it in the past. But that didn’t really work. Here is an interesting exchange before the tribunal: at first Warman denies that he posted anonymous, provocative comments to a website he took to the commission; then, when confronted with the fact of it, he sheepishly admits to that practice. If you’re bored, you can read this lengthy affidavit by the webmaster proving that the bigoted remarks about Sen. Anne Cools were made by Warman himself. Here’s a timeline of facts related to the Anne Cools remarks.
I started poking around a little bit about those disparaging comments about Sen. Anne Cools, because they’re obviously a source of embarrassment to Warman – he seems to have complained to the National Post when they attributed those words to him. The Post decided to cut bait and move on – they’ve been Canada’s best champions of free speech, so they deserve a little slack for not digging in. But, unless I’ve missed it, in at least two other legal actions – his defamation suit against Free Dominion, and his human rights complaint against Marc Lemire – Warman has conspicuously omitted any reference to their claims that he made the Anne Cools remarks. If those bigoted comments weren’t made by him, the assertion that they were would be defamatory, and would be the strongest part of those suits. I’ll bet you a dollar this subject doesn't find its way into any suit against me, either.
These folks just keep coming
Look: I didn’t want any of these fights. I just wanted to publish a magazine. Two years ago, when the first, absurd, hand-scrawled human rights complaint was filed against me, I tried hard to make it go away quickly and inexpensively, by writing this earnest reply. But neither Syed Soharwardy nor Shirlene McGovern would let me go that easily. Now, both of them are gone -- both quit. (But I'm not free; a new Alberta human rights officer is still prosecuting the Edmonton Muslim Council's version of the complaint against me.)
Now, after staying silent for months, Richard Warman wants to enter the fray. Not as a debater with arguments, but as a silencer, outlawing arguments. A man more certain of his case would rely on words, not lawsuits, to rebut me – and would take his lumps for his bad behavior, such as encouraging the physical assault on David Icke.
But Warman doesn’t appear to believe in debates. He believes in what he calls “maximum disruption” of his political adversaries. On page 8 of that speech, Warman can’t even bring himself to categorically rule out violence against his foes. He defines unacceptable violence as violence that is “indiscriminate” and “places the safety of other individuals at risk” – because such indiscriminate violence that hurts bystanders is morally “suspect” and “puts in jeopardy broader public support”. It’s tough to imagine true human rights activists like Martin Luther King or Mohandas Gandhi parsing acceptable and unacceptable violence that way. And it’s clear that the intended assault on David Icke slips through his loophole. Perhaps I should be glad Warman hit me with a lawyer’s letter, and not a pie in the face.
I’m going to fight like Hell
As a defamation lawyer, I know that Warman’s complaints are baseless. So, other than the nuisance and cost of defending the threatened suit – the “maximum disruption” that Warman promises – there’s nothing to fear. For me, at least.
But what about for Warman? Until now, he could beaver away on his human rights complaints while I railed harmlessly in the media. I had no impact on him, other than on his ego. But now he’s changed that. He’s threatened to lock himself into a formal legal process with me, in a real court, with real rules – not the loosey-goosey kangaroo court where he used to work.
Before, he could ignore me; now he has to answer my questions about his conduct under oath; if he sues, he will have to disclose documents touching on the many matters at hand – everything from e-mails to files on his hard drive. “No comment” and “that’s confidential” don’t work in an examination for discovery.
Warman as a surrogate for the commission
And though it seems likely that Richard Warman will be the sole plaintiff against me if he sues, in effect it’s as if section 13 of the Canadian Human Rights Act itself, the idea crimes section, is threatening to sue me, because Warman is such a dominant user of that section. If the political campaign to rescind section 13 succeeds, no-one will be affected as much as Warman. No wonder he’s so mad.
In that sense, it is as if the commission is threatening to sue me. And since my discussion of Warman’s unusual relationship with the commission is one of his complaints against me, they get dragged into this, indirectly. Before, they too could ignore me. If I'm sued, I'll have standing to apply to the court for subpoenas, both for internal commission documents and to compel the testimony of commission staff.
I must admit that I’m surprised Warman would do this. I had not yet received his threatening letter when I wrote this post last week, remarking on the wisdom of Warman for keeping a low profile. I think he’s so used to slam-dunks, he thinks this case will be the same. But this time will be different.
We’ve got a solid case in law – and unlike many of the poor shlubs Warman fights against, I’ve actually got lawyers, and I think the truth will come out. But that’s not really what the next year or two is going to be about.
Court of law and court of public opinion
Warman might think that this is another episode of him shooting fish in a barrel. But that’s probably what poor Shirlene McGovern thought, too – I was just another politically incorrect chump to rough up.
Dear reader, I don’t think I’m going to be like the easy pickings that Warman is used to fighting. While my top gun lawyers are taking care of business in the court of law, I’ll be working vigorously in the court of public opinion. I’ll ensure that every legal document, every piece of interesting testimony, every embarrassing admission I exact from Warman and the human rights commission will be shown to the whole world (subject to any legal restrictions). Unlike human rights commissions, where only the victim of the complaint is grilled, defamation lawsuits are two-way streets. It’s Warman who’s going to be famous. I’ll use every interlocutory application, every motion, every pleading and every day of the trial to shed light on the commission’s shenanigans. I wonder if Warman has thought through the idea of giving me a forum; I wonder what his friends at the commission will think when they start getting subpoenas; I wonder what advice Shirlene McGovern would offer them about engaging me in such a process.
What happens next
If it isn’t evident, let me tell you my goals. And please tell me if they are your goals, too:
Win in the court of law
Beating Warman’s threatened suit will be much more than a personal vindication. It will reaffirm to him – and to the country – that censorship of political views is not a Canadian value. When Warren Kinsella backed down from his threats to sue bloggers, it strengthened the blogosphere, and evaporated lingering fears people had about the self-described ass-kicker. This will be an order of magnitude greater: to have a judge dismiss the suit, with costs against Warman, will be a watershed in the battle against political correctness, censorship, and the abuse of human rights commissions.
Denormalize human rights commissions in the court of public opinion
There have been others who have fought (and are still fighting) the human rights commissions. But for various reasons they haven’t been able to effectively share their story with the public at large. The attention my case has received so far, combined with the absurdity of Warman’s suit, combined with, well, the fact that I’m not a white supremacist or neo-Nazi, will ensure that the excesses of the commissions are in the news every day for years, showing them to be the un-Canadian institutions they have become.
Make political change possible
It has been difficult to get the minority Conservative government in Ottawa to rein in the human rights commissions, despite near-universal public support, and even some encouraging bi-partisan comments. That’s because they perceive the risk of amending the act to be greater than the reward – they’re worried about being labeled as hostile to human rights in a looming election – as if free speech and due process weren’t human rights. But there is another political risk – the risk of inaction. Much of the dirty business that has been exposed by Marc Lemire’s lawsuit against the human rights commission happened on the Liberal government’s watch. But if planting anonymous messages and other bad behavior by commission staff is continuing under the Conservative government – and I see no reason to believe it’s stopped – despite the calls for change, that’s a risk to the Conservatives, too. It's a possible scandal.
One of my explicit goals is to open the public’s eyes to the commission’s operations, to make it so evident to voters that these commissions aren’t just nuisances, they’re positively dangerous. My goal is to change the political calculus – make the safe, smart move to contain and eliminate the commissions, not to ignore them as is currently the case.
Keep myself financially whole
When I walked into my interrogation on January 11, I honestly didn’t know where I was going to get the money from to pay my lawyer – our magazine, now defunct, was no longer footing the bill. And though I was confident I could find some generous donors to cover that bill, I really didn’t know how much longer I could afford to fight. Thanks to the generosity and solidarity of the blogosphere, I was able to put aside any stress – even in the back of my mind, that I didn’t want to admit to – and focus on kicking the tar out of these commissions. I need to do the same here.
Other than cost, there is no obstacle to fighting Richard Warman’s threatened nuisance suit – and trying to bring down the whole damn human rights commission along with him. We’ll be fighting in a real court, not a kangaroo court; I’ve got the personal interest and motivation to follow this through, and I believe I have the ability to demonstrate to the public the problems with the commissions better than any of its other victims have been able to do. All I need is money.
Based on experience and observation, I estimate that fighting this threatened suit will cost $100,000 and fighting it like hell – that is, going on the offence, and taking the battle right into the heart of the commission itself – could cost more than $200,000. That sounds like a lot of money, but if that discredits the commissions so badly that they either abandon their section 13 witch hunts – or, more likely, that the federal government is finally embarrassed into action – then it’s worth it. I don’t know, but I’d guess that Maclean’s magazine itself will wind up spending close to that much merely defending itself and Mark Steyn in the three(!) human rights commissions it has been dragged into.
How you can help
I promise to fight this fight until the end. I’ve got the best lawyers and a great legal case. But I’ve got something much better than that now: I’ve got Richard Warman and the human rights commission locked into a process that will allow me to expose how they really operate. Imagine the questions I can ask; imagine the documents I can demand to see. I’ll give this my energy and time, but with a young family, I can’t give it my life savings.
If you think this is your battle too, and if you agree with me that crushing Warman's threatened lawsuit in a spectacular manner could change the law and make Canada more free, then please help. You can click on the PayPal button at the top of this website (and below), or if you prefer, you can send a contribution directly to my legal team, care of this address payable to "May Jensen Shawa Solomon LLP in Trust", and indicate that it's for my defence. If you’ve already contributed to my fight, please consider helping again – or telling a like-minded friend about this situation.
When I received Richard Warman’s legal threat, my first reaction was surprise, then amusement, then anger. But not now. Now I feel like I have been given an amazing opportunity. A duty, really: to do what our politicians so far won’t do. I want to do what it takes to shut these abusive commissions down, once and for all. Let me know if you'll help me fight.