Internet Lawyer explains the Law! If you have aphone, you have a phone bill!
fuzzybunny916 asks : (“This article completely misrepresents Canadian Muslims’ values, their community and their religion,” said Faisal Joseph) How is what Steyn is doing different from say. slander, which is illegal?
Good question! Let the Internet Lawyer explains the Law! My motto: “I almost flunked law school, but two guys with grades even worse than mine actually graduated!”
The elements of slander are
1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.
All this, in a court of law, bound by objective rules and standards of evidence — do you hear me, I said bound OBJECTIVE rules — where the accuser has to bring clear and convincing evidence to prove each element.
For example, the plaintiff must prove damages (except in the limited cases where damages are assumed as per se, such as attacks on a person’s professional character or standing; alegations that an unmarried person is unchaste; allegations that a person is infected with a sexually transmitted disease; allegations that the person has committed a crime of moral turpitude).
To tell a joke about someone or something is not slander. To gather demographic evidence and draw a logical conclusion is not slander. To observe that Islam and the Christian West have different and antithetical values is not slander.
To dishonor someone is not slander.
To misrepresent Canadian Muslim’s values, their community and their religion is not slander, and, indeed, does not satisfy even the first element of stating a case. (If it is misrepresentation, it must also be defamatory.)
Let me also mention some of the defenses against slander:
1. The most important defense to an action for defamation is “truth”, which is an absolute defense to an action for defamation.
2. Another defense to defamation actions is “privilege”. For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
3. A defense recognized in most jurisdictions is “opinion”. If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context – that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. (Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.)
4. A defense similar to opinion is “fair comment on a matter of public interest”. If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
5. In New York Times v Sullivan, the Supreme Court held that, where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with “actual malice”. This means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. For example, Ariel Sharon sued Time Magazine over allegations of his conduct relating to the massacres at the Sabra and Shatila refugee camps. Although the jury concluded that the Time story included false allegations, they found that Time had not acted with “actual malice” and did not award any damages.
The concept of the “public figure” is broader than celebrities and politicians. A person can become an “involuntary public figure” as the result of publicity, even though that person did not want or invite the public attention. For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established, on the basis that the notoriety associated with the case and the accusations against them turned them into involuntary public figures.
A person can also become a “limited public figure” by engaging in actions which generate publicity within a narrow area of interest. For example, a woman named Terry Rakolta was offended by the Fox Television show, Married With Children, and wrote letters to the show’s advertisers to try to get them to stop their support for the show. As a result of her actions, Ms. Rakolta became the target of jokes in a wide variety of settings. As these jokes remained within the confines of her public conduct, typically making fun of her as being prudish or censorious, they were protected by Ms. Rakolta’s status as a “limited public figure”.
The actions of the Islamic Ummah taken as a whole, I think, have created enough publicity to class criticism or comment or opinion on them as “public figures”
Indeed, the very reason and the only reason why the craven paynims are whining like spoilt children to this Kangaroo Commission, is that any court of law would throw the charges out for failing to state a cause of action.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
