Thursday, January 10, 2008

Free Speech, Mark Steyn and U.S. Anti-Online "Annoyance" Law

A January 15, 2006 UPI article discusses a newly-enacted American law that reportedly goes much farther in controlling "offending" online speech than does any human rights statute in Canada.

This federal U.S. legislation apparently prohibits Internet use that is merely intended to be "annoying:"

Last Thursday President Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005. Included in the law is a clause that outlaws anonymously using the Internet "with the intent to annoy, abuse, threaten, or harass."

"The law is different from the final versions of the bill in the House and Senate," Opsahl said. "It was a bill addressing a lot of other things, and this part was slipped in."

The chief problem with the law, Opsahl said, was the word 'annoy.' "The word covers a much wider range of speech than threats," Opsahl said. "It goes beyond the cyber-stalking that proponents were worried about."

...First Amendment rights are precisely the reason the law may not stand up, Opsahl said.

"The courts historically have been very protective of the right to speak anonymously," he said. Curtis concurred. "The first time it gets taken out for a spin, it will get shut down legally," he said. Opsahl said that even if the law is not enforced, it may have a chilling effect on speech.

These laws, of course, are extremely well-intentioned. For an example of how online abuse laws may legitimately be applied to halt internet harassment, even in the case of a woman whose public vilification might be seen as justified, by some, see this story regarding ongoing web harassment of a Missouri woman involved in an internet hoax that led to a tragic teen suicide.

As the UPI article notes, however, the federal law could be open to considerably broader interpretation. Concern is stated, in fact, that the law could potentially have a chilling effect on speech.

The opponents of the U.S. legislation utilize arguments quite similar to those now being raised regarding Canadian human rights law.

Canada has been repeatedly assailed in recent weeks by U.S. commentators as lacking adequate protection for freedom of expression as compared to America. These comments have typically emerged in response to pending human rights complaints brought by members of the Canadian Islamic Congress against conservative writer and commentator Mark Steyn and Macleans magazine.

I will restate my genuine belief that each of our nations has much to proud of in the constitutional protections that are afforded to freedom of expression.

Each nation guards free speech jealously, but each also places reasonable limits at the outer fringes of communication, as defined in each country.

When challenges are launched that purport to either extend or limit the envelope of our respective Constitutional protections for free expression, our Courts must ultimately be the arbiters of where lines are to be drawn, and where they are not.

In each of our nations, such judicial deliberations are never taken lightly. Our Courts are worthy of great respect, whether we agree with their decisions or not, for the intelligence, deference to legal precedent and vigourous analysis applied.

The recent, uncritical derision of Canada and our human rights legislation places very little faith in the integrity of Canada's judiciary, and is the refuge of the uninformed and the intellectually lazy.

This concerted protest against human rights commisions is largely a Canadianized version of the US neocon cry against "activist judges."

It should be seen for what it is - a talking point by those who defend Mark Steyn instead of defending Canada and tolerance.

The complaints against Steyn way well be dubious as a matter of law, but let us not confuse who the "good guys" are here.

On a related note, if you're in the mood for a fascinating and fun read, check out the U.S. Supreme Court's June 2007 ruling in Morse v. Frederick, the so-called "Bong Hits for Jesus" case, which is one of the Court's more recent rulings on how and where at least one line is to be drawn in the vigourous debate as to permissible speech in America.

The cross-talk among the Justices is at least as interesting as the outcome of the appeal.

- Garry J. Wise, Toronto

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