Richard Warman Sues to Shut Up Conservative Bloggers

If you would like to be able to continue reading conservative blogs, especially their accounts of the outrageous conduct at the Canadian Human Rights Commission, but more generally whatever free-spirited bloggers choose to write about without undue fear of being financially ruined by law suits, or their mere threat, now is the time to just stop your reading routine and consider seriously sending some financial help to the bloggers being sued by Richard Warman. If you want a fair trial, if you want the truth to out, the bloggers being sued have to know they will be supported in going to trial. As any honest lawyer will tell you, under the very expensive (because otherwise fair and careful) Canadian legal system, once you are sued for libel and have to face the huge costs of lawyers, time, and personal energy - costs that you will be very unlikely fully to recover even if you win the suit and win "full" costs - you have already lost, even if eventually the court takes your side in the dispute. Consequently, an ethical lawyer will be telling the bloggers who are being sued, consider settling out of court, even if you think what you have written is true. A well-paid civil litigation lawyer of my acquaintance likes to joke that even he could not afford to employ his own services.

The most complete write-up on the story so far can be found at the blog of one of the defendant's, Ezra Levant. Also being sued are Free Dominion, Kathy Shaidle, five feet of fury, Kate Mcmillan of small dead animals, and Jonathan Kay of The National Post.

As Ezra notes:

Take a look at the language Warman’s lawsuit uses to smear Free Dominion. At paragraph 17, Warman calls them an “extreme right-wing discussion forum”. Look at that language – hardly distinguishable from the CHRC’s and CJC’s boilerplate insults reserved for neo-Nazis. That’s what this lawsuit is about: an attempt by the CHRC’s biggest star to try to marginalize Canadian conservatism. And why not? The CHRC has moved from targeting white supremacists to targeting mainstream conservatives like Mark Steyn; the Alberta HRC has already gagged Christian pastors and taken a run at Calgary’s bishop, and two years ago they charged me with publishing the Danish cartoons of Mohammed. Surely attempting to criminalize conservatism is just the next, natural step for these congenital censors.

Ezra is being a little hyperbolic here: an individual suing to protect his reputation is not the equivalent of state censorship even when the individual has been intimately related with state censorship in the guise of "human rights" activity. But calling Free Dominion "extreme right wing" is indicative of political motivations. We shouldn't allow our sense of Ezra's showmanship to detract from the fact that law suits, or their mere threat, can be used as an effective silencing weapon against those with relatively unpopular opinions and little money to defend themselves, which is the situation of most conservative bloggers in Canada today. In such a situation it behooves every one who values a free society to insure that those whose speech is under attack be given the financial support to mount a full and vigorous defense, if one thinks their political attacks on a public political figure have been in any way reasonable and justifiable in a free and democratic society.

Ezra continues

... there are two other defendants in this suit: the National Post and its editor, Jonathan Kay. Six weeks ago, Kay briefly – maybe for an hour or two – posted a column about Warman’s Sen. Cools comments on the National Post’s website. But as soon as Warman complained, Kay took it down, and the Post later published an apology both in print and online. I obviously disagreed with that decision, but I’m not the one responsible for putting out a newspaper every day on a tight budget. Kay and the Post are in the business of publishing, not suing. They made the decision to cut bait, and move on to other, more important fights – as they have done with their outstanding coverage of the CHRC ever since.

But that act of over-generous magnanimity – legally unnecessary in my view, but probably a smart business decision – did not exempt them from Warman’s litigious nature. He’s suing them nonetheless. I’m not sure what Warman hopes to get from them – they’ve already apologized in a disproportionate way. It will be interesting to see how the Post responds. Will they try to cut bait again? If so, how? Or have they reached a point with Warman where they realize he is using this lawsuit as a punishment to them – maximum disruption-style – for their excellent reporting on Warman and the CHRC?

Warman will never sue Rogers

Speaking of big, corporate defendants, where is Maclean’s magazine and Mark Steyn on the list of defendants? I would never wish a Warmansuit on Maclean’s or Steyn, of course. But next to the Post, nobody’s been tougher on Warman and his bigoted, anonymous online comments then them. Could it be – perhaps? – that Warman doesn’t want to sue Maclean’s, which is owned by Rogers – which just happens to be the ISP through which the Cools comments were posted? Is Warman afraid that they will prove what he doesn't want them to prove -- that it was he who posted those bigoted remarks? I don’t know, but I’m curious. And I think a judge will be curious as to why comments in Maclean’s magazine, with its 2.8 million readers, weren’t regarded as actionable, whereas a few bloggers were. In a lawsuit that already reeks of politics, not serious legal matters, it’s just one more reason for judges to raise an eyebrow.

That’s because what any defamation suit is about is how much the plaintiff’s reputation has been reduced, and whether that reduction was fair. Warman and the CHRC have taken a shellacking in the press for three months, based on the true facts of Warman’s hyper-litigiousness, his confessed anonymous bigotry and other malfeasance. Warman has let the vast majority of these publications go (though he has tried to pick on a McGill university student). Just what is his reputation worth these days, what with all the revelations? What is he implying by ignoring Maclean’s pounding of him, month after month? And, regardless of what Maclean’s says or does, when a self-described human rights hero admits to posting anti-gay, neo-Nazi bigotry, as Warman does, what’s left of that reputation to defend?

Warman will avoid examinations for discovery

There is one more matter of interest in this lawsuit: the dollar amount at stake. Warman is suing for $50,000 plus costs and interest. From one point of view, that’s small potatoes – though I’d imagine that each of the defendants will spend close to that in legal fees. But it’s unlikely that Warman is suing for that sum out of modesty, or out of recognition that he has damaged his reputation through his own misconduct. The reason is more likely Rule 76 of Ontario’s court procedure, which permits a streamlined trial for claims of that size. In other words, by limiting his claim, Warman can avoid an examination for discovery – the extended pre-trial questioning, under oath, that parties have to submit to in normal trials. Under the expedited rules, Warman can escape such an interrogation until the trial itself – which will likely mean less questioning, less follow-ups, and a lot of “I can’t remembers”. It shouldn’t come as a surprise – like the rest of the CHRC apparatus, Warman prefers to avoid scrutiny of his actions.

As notable American blogger Ed Morrissey says:

It doesn’t matter if Warman’s case has little merit or hope of succeeding. The costs involved in fighting these kinds of lawsuits will drive people into silence, intimidated by financial ruin. If bloggers won’t stand up against these kinds of tactics, then who will?

So, please visit the sites under attack. Consider their arguments and, if you sympathize, consider seriously how much you can afford to send them when you hit their PayPal buttons.

Here's how one student journalist responded to the threat of a Warman lawsuit. We all need to learn from his courage.