Libel suit infringes on liberties of us all:[Final Edition]
By Gil Troy
The Gazette. Montreal, Quebec: Nov 6, 1999. pg. B.7
|Newspaper and Journal Articles-Written||News about the
$300,000 libel case Jacques Parizeau and Lucien Bouchard
are pursuing against a private citizen should dismay
anyone who cares about freedom of speech. In a private
newsletter sent to investors, a businessman, Richard
Lafferty, compared the "demagoguery" of
Parizeau and Bouchard to that of Adolph Hitler. The
6-year-old case is set to proceed on Dec. 6.
Lafferty and his lawyers make the very good case that the document, the Lafferty Canadian Report, was a private newsletter only made public when Le Devoir splashed it across the front pages. Lafferty's clients pay him to assess the economic climate, which is invariably affected by politics. He has not just a right but a duty to provide them with his honest assessment of the situation, regardless of whose sensibilities he offends, or how off the mark his sense of history may or may not be.
More broadly, even if Lafferty had made his remarks in a clearly public forum - in a newspaper, on the radio - the Canadian Charter of Rights and Freedoms protects his fundamental right to express himself. If he - or anyone else - finds historical analogies that illustrate his point, he should have every right to make them. Historical analogies abound in political debate, be they accurate or wrongheaded, appropriate or tasteless. They serve as a currency, a familiar shorthand we use to hail and to condemn.
Parizeau and Bouchard are public figures. They repeatedly have thrust themselves into the public eye and public debate. Both have also had a powerful impact on the world around them. In entering public life, in trying to shape history, they voluntarily made themselves vulnerable to all kinds of attacks. At the same time, they are blessed with ready access to the media and to millions of people. As a result, these two prominent politicians can defend themselves vigorously and effectively before the most important court of all, the court of public opinion.
By turning to courts of law to punish a critic they deem intemperate, the premier and former premier have damaged the fragile fabric of freedom so essential to liberty. In essence, Parizeau and Bouchard are using state power - a court of law composed of government officials, legitimized by the state - to squelch speech. Such libel actions inevitably have a chilling effect on the vigorous and open debate so essential to any free society. Few people have the fortitude or the bank accounts to defend themselves from libel claims. We all should applaud Lafferty for his courage - he is defending everyone's right to free speech. Especially here in Quebec, which struggles with serious questions about its future, citizens must be free to express themselves passionately, vehemently, even obnoxiously.
More than 35 years ago, amid the passions of the civil-rights struggle in the United States, a Southern official tried to clobber his critics by suing them for libel. An elected commissioner of the city of Montgomery, Alabama, sued four black clergymen and the New York Times for an advertisement the four had placed in the newspaper. In this case, the ads contained actual inaccuracies - rather than debatable historical analogies whose veracity ultimately can never be proved or disproved.
Nevertheless, in New York Times Co. vs. Sullivan (1964), the U.S. Supreme Court decided that public officials could not recover damages for defamation unless the officials could prove that their critics maliciously and recklessly knew that the statements were false. Truth, or even plausibility, was a defence, as was an absence of malice. In explaining this landmark decision, Justice William Brennan noted that "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."
Unfortunately, Canada has not always shared that same "profound national commitment" to robust debate. Many Canadians prize niceness over vigorous speech. In this province, the right to free expression is so fragile that even the leader of the opposition condemns those who want signs in the language of their choice as "extremists." It is essential, therefore, that the courts protect the rights of free speech as zealously as possible. All but the most inaccurate and malicious libel claims stemming from political debate should be thrown out of court. Judges can trust society and the court of public opinion to shun those who step over the line.
As politicians who have built their careers by attacking the federal government and rarely shying from controversy, Parizeau and Bouchard should be particularly sensitive to the need for a vigorous, open, rollicking free atmosphere for political speech. It is in their best interest - and ours - that more and more oxygen seep into our political system to keep debate raging, even if some people occasionally get burned. It is tragic - and unconscionable - for them to advance this $300,000 libel claim, which sucks free oxygen out of the political atmosphere, thus threatening the tender fires of liberty, which we all need to survive.
- Gil Troy is a history professor at McGill University.
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