Acts of Terrorism megathread

[Syt]

It's almost like there's a constant evolution of what is and isn't acceptable free speech

(which leads to arguments, of course, but is part of the process)

[crazy canuck]

No, and I think I can see now where the disconnect is.  You think freedom of expression is the freedom to say anything.  It isn't.  Freedom of expression has its own internal constraints.  The But Brigade, and you apparently, would like to put even more constraints on so as to make free speech less offensive.

That sounds pretty selective to me- basically free speech is the right to say anything.... Except the things we have decided are absolutely unacceptable to say. And anyone who draws this line in the slightest bit stricter place to us is an opponent of free speech (but not us).

The only sensible way to look at it is that free speech is absolute. Yelling fire in a crowded theatre, screaming death to America, this is all free speech. Everybody but the most radical of libertarians/anarchists then draws a line (maybe a fuzzy one) somewhere for what is acceptable and what not.

I think this is where a lot of free speech/freedom of expression discussions go wrong.  That has never been the case except in libertarian fantasy fiction. 

If you want to make up your own definition of what it is, fine.  But just understand you are having a different debate at that point.

[Malthus]

There's a simple "But brigade" test for Ty r and his ilk:  "if someone believes that something is true, even if it isn't, should there be any moral or legal impediment to them saying it?"

If they say "no," they are not members.  They believe in free speech.

If they say, "no, but..." then they are members.

If they say "yes," then they are not members, but rather simple free speech deniers.

If someone does not believe something is true, or it is incitement to violence, it isn't protected by free speech rights at all, so the case does not apply.

This test puts defamation law on the free speech denying side of the line.

Subjective Belief in the truth of a statement is not generally a defence to defamation (actual truth is, as is in some jurisdictions meeting some reasonable standard of diligence in inquiring after truth; or, only for public figures being the target, actual recklessness or malice).

[Josquius]

I think this is where a lot of free speech/freedom of expression discussions go wrong.  That has never been the case except in libertarian fantasy fiction.

If you want to make up your own definition of what it is, fine.  But just understand you are having a different debate at that point.

Exactly.
Which makes it all the weirder to find fault with those who would discuss exactly where the line lies. Everyone supports "free speech but".
There is no clear black and white line between those who support practical free speech and those who do not. Everyone has some buts. All existing laws in every country contain exceptions.

[Sheilbh]

I am well aware that there is a lot of haggling over the terms and meanings and definitions and what constitutes "Reasonable" and all that. That is exactly what I was referring to.

The law however clearly intends that self defense be legal. That is black and white. What exactly is reasonable in its application is where it gets gray.

But if the law itself was unclear as to whether self defense is legal and the law itself was not black and white well then it wouldn't even be gray. It would just be a big morass of baffling unclear non-transparent arbitrariness.

But I suppose my view is that haggling is the content of the law. My take on what BBoy says (and it's similar in the UK) is that self-defence is legal (or a defence) in certain circumstances and not in others. I don't think that can be described as black and white - it's saying self-defence can be legal. The actual law is in defining and clarifying those circumstances because that's what tells you if something is lawful or not.

[Barrister]

I think the problem with discretion is when it's unaccountable.  It's one thing for a prosecutor to make a decision to not try the case.  The decision is public, and they can be asked to explain why they chose to apply the discretion that they did.  It's another thing when discretion is applied by cops on the beat, where the decisions subject to discretion are largely not observable, and where any kind of systemic difference in application of the law can be rolled up as "discretion".

We're under absolutely zero obligation to explain our discretion to anyone besides our managers.  If it's a matter of Crown discretion neither the judge nor the public (nor the police) have a right to know.

What's the mechanism for independent review of your discretion?

There is almost none.  There is some slight room for an Accused to try to allege that we are being malicious in our exercise of discretion which might cause us to have to explain our use of discretion to a judge, but the caselaw grants us wide leeway and it would require a finding of actual malice in order for a judge to order a remedy.

[crazy canuck]

There's a simple "But brigade" test for Ty r and his ilk:  "if someone believes that something is true, even if it isn't, should there be any moral or legal impediment to them saying it?"

If they say "no," they are not members.  They believe in free speech.

If they say, "no, but..." then they are members.

If they say "yes," then they are not members, but rather simple free speech deniers.

If someone does not believe something is true, or it is incitement to violence, it isn't protected by free speech rights at all, so the case does not apply.

This test puts defamation law on the free speech denying side of the line.

Subjective Belief in the truth of a statement is not generally a defence to defamation (actual truth is, as is in some jurisdictions meeting some reasonable standard of diligence in inquiring after truth; or, only for public figures being the target, actual recklessness or malice).

This is one of the areas where Canadian and American law differs.

You are correct that an honest but mistaken belief that a statement is true provides limited protection in Canada if the other elements of qualified privilege can be made out.  But I believe the situation is quite different in the US where an honest but mistaken belief provides much more protection.  Which explains a bit why you see so many more false attacks being made against character down south.

[Valmy]

It's almost like there's a constant evolution of what is and isn't acceptable free speech

Ok well how can that evolution occur if speech is persecuted? That evolution requires unacceptable speech to take place.

[Admiral Yi]

Exactly.
Which makes it all the weirder to find fault with those who would discuss exactly where the line lies. Everyone supports "free speech but".
There is no clear black and white line between those who support practical free speech and those who do not. Everyone has some buts. All existing laws in every country contain exceptions.

My problem with the line you are trying to draw is that it seems to forbid the Syllland Post and Charlie Hebdo cartoons.

You say you're against right wingers trolling Islam.  Sylland and Charlie did exactly that.  They published cartoons they knew would offend Muslims to make a statement about free speech and to stand up to violent intimidation.

[grumbler]

There's a simple "But brigade" test for Ty r and his ilk:  "if someone believes that something is true, even if it isn't, should there be any moral or legal impediment to them saying it?"

If they say "no," they are not members.  They believe in free speech.

If they say, "no, but..." then they are members.

If they say "yes," then they are not members, but rather simple free speech deniers.

If someone does not believe something is true, or it is incitement to violence, it isn't protected by free speech rights at all, so the case does not apply.

This test puts defamation law on the free speech denying side of the line.

Subjective Belief in the truth of a statement is not generally a defence to defamation (actual truth is, as is in some jurisdictions meeting some reasonable standard of diligence in inquiring after truth; or, only for public figures being the target, actual recklessness or malice).

This is one of the areas where Canadian and American law differs.

You are correct that an honest but mistaken belief that a statement is true provides limited protection in Canada if the other elements of qualified privilege can be made out.  But I believe the situation is quite different in the US where an honest but mistaken belief provides much more protection.  Which explains a bit why you see so many more false attacks being made against character down south.

I know the US has much stronger protections for free speech than the UK (where the burden of proof in defamation cases is on the defendant, not the plaintiff).  So much stronger, in fact, that the US passed in 2010 a federal law prohibiting US courts from enforcing UK libel rulings.

[Josquius]

Exactly.
Which makes it all the weirder to find fault with those who would discuss exactly where the line lies. Everyone supports "free speech but".
There is no clear black and white line between those who support practical free speech and those who do not. Everyone has some buts. All existing laws in every country contain exceptions.

My problem with the line you are trying to draw is that it seems to forbid the Syllland Post and Charlie Hebdo cartoons.

You say you're against right wingers trolling Islam.  Sylland and Charlie did exactly that.  They published cartoons they knew would offend Muslims to make a statement about free speech and to stand up to violent intimidation.

I never said that.
I don't know enough about Charlie Hebdo to comment on their specific case and I've never heard of Sylland Post.
My view is that hate speech, speech designed purely to cause offence with absolutely zero reasonable defence, should be a crime.

I have never read CH but to imagine a comparable context, in the case of a satirical magazine making jokes that some groups find offensive- then there should be a clear avenue for these groups to challenge these jokes in court.... but the context of a satirical magazine that takes pops at everyone, the jokes clearly being aimed at their target audience and not the offended group, iirc in the CH case it was a general anti religion joke rather than targeted against muslims, etc... it should be extremely unlikely anything would ever come of this other than the complainers being fined for wasting time.
On the other hand if a local neo nazi is doodling shitty cartoons of paedo-muhammed and posting them through the door of the local mosque....then that is clearly targeted harassment and a challenge there should be likely to lead to a prosecution.

Context, audience, past behaviour, validity of criticisms, the way they're presented, etc... should all be relevant factors.

[Tamas]

Who said there was no way for offended Muslims to the take their offence to court though? Maybe they have. What happened to CH though is that they got murdered for drawing silly cartoons about some people's sacred cow.

[Josquius]

Who said there was no way for offended Muslims to the take their offence to court though? Maybe they have. What happened to CH though is that they got murdered for drawing silly cartoons about some people's sacred cow.

I  have no idea what the French law is. Its not something relevant here in the broader conversation about what should and shouldn't be free speech.

[grumbler]

My view is that hate speech, speech designed purely to cause offence with absolutely zero reasonable defence, should be a crime.

This goes way further than the "But... brigade" goes.  You are right there in anti-free-speech-no-question-about-it territory.  If you seek to criminalize "causing offence" then you don't believe in free speech even without the "but..... " part.

People have no right not to be offended, and "causing offence" is such a subjective concept that using it as the basis for a criminal charge is allowing anyone to be arrested for virtually anything.  All of the "purely" and "with absolutely zero defense" qualifications are meaningless, because they to are purely subjective qualifiers.

I have never read CH but to imagine a comparable context, in the case of a satirical magazine making jokes that some groups find offensive- then there should be a clear avenue for these groups to challenge these jokes in court....

I could not disagree more.  It is not the court's place to challenge jokes.

On the other hand if a local neo nazi is doodling shitty cartoons of paedo-muhammed and posting them through the door of the local mosque....then that is clearly targeted harassment and a challenge there should be likely to lead to a prosecution.

Nope.  This isn't, and shouldn't be, a violation of any laws bar trespass.

Context, audience, past behaviour, validity of criticisms, the way they're presented, etc... should all be relevant factors.

Nope.  These are all purely subjective criteria and should be limited to aggravation/mitigation/extenuation arguments.  You cannot make laws that criminalize behavior based on subjective factors like "validity of criticisms."

The law is a club, not a scalpel. 

[crazy canuck]

Exactly.
Which makes it all the weirder to find fault with those who would discuss exactly where the line lies. Everyone supports "free speech but".
There is no clear black and white line between those who support practical free speech and those who do not. Everyone has some buts. All existing laws in every country contain exceptions.

My problem with the line you are trying to draw is that it seems to forbid the Syllland Post and Charlie Hebdo cartoons.

You say you're against right wingers trolling Islam.  Sylland and Charlie did exactly that.  They published cartoons they knew would offend Muslims to make a statement about free speech and to stand up to violent intimidation.

I never said that.
I don't know enough about Charlie Hebdo to comment on their specific case and I've never heard of Sylland Post.
My view is that hate speech, speech designed purely to cause offence with absolutely zero reasonable defence, should be a crime.

I have never read CH but to imagine a comparable context, in the case of a satirical magazine making jokes that some groups find offensive- then there should be a clear avenue for these groups to challenge these jokes in court.... but the context of a satirical magazine that takes pops at everyone, the jokes clearly being aimed at their target audience and not the offended group, iirc in the CH case it was a general anti religion joke rather than targeted against muslims, etc... it should be extremely unlikely anything would ever come of this other than the complainers being fined for wasting time.
On the other hand if a local neo nazi is doodling shitty cartoons of paedo-muhammed and posting them through the door of the local mosque....then that is clearly targeted harassment and a challenge there should be likely to lead to a prosecution.

Context, audience, past behaviour, validity of criticisms, the way they're presented, etc... should all be relevant factors.

Lets put your new standard for freedom of expression to the test with a hypothetical.

A person walks on a public sidewalk outside a steak house protest killing cattle for consumption. They carry a placard with a disturbing picture of slaughterhouse in action.  There is a caption which reads "meat is murder".  The protestor has been a part of a vegan protest group for many years and has been protesting outside this restaurant many times.  The owner of the restaurant calls the police and says the protestor is committing a criminal offence.

Under the current law the police politely explain to the restaurateur that no criminal offence is being committed.  Under the Tyr law an investigation ensues.  The investigating officer loves steak and cannot see any justification for why anyone would be so offensive.
Looking at the Tyr factors the investigator determines that there is certainly a pattern of such behaviour which is meant to offend those who love eating steak.  Further, the investigator determines that the views of the protestor are not widely held and so are not valid, reasoning that if they were valid then no one would eat steak.  Further there were less offensive ways to express the idea that people should not eat meat.  That is really the clincher.  The protestor was clearly acting in an offensive manner on the Tyr criteria.

tldr - freedom of expression is the freedom from state sanction to express ideas which are offensive to the majority.