Before I hit the crux of my post, I need to clarify a few things.
1. I don't defend the actions of Charles that will inevitably be the subject of the libel charge. If the judge sees a case, those will almost certainly be attacks on specific people. This is not acceptable behaviour.
2. What may be interpreted as my defence of Charles is 2 pronged:
a. I think that he is being targeted because of the history between him and the Fredericton Police Force. My justification is that under normal circumstances, any other person seeking to hold someone accountable for similar behaviour would be told that it is a civil matter and that they should use civil channels. If the victim wasn't a member of the Force and if Charles wasn't so critical of that same Force, I truly think that this would be happening very differently.
b. I think that a criminal charge is ridiculous. Hold him accountable, but don't make this criminal. Not only do I think the defamatory libel law is preposterous, but the specific use of it in this instance amplifies how terrible the law is. Ask a real journalist. They're concerned.
A friend of mine, returning from a conference was eager to tell me of a study that was used as the focal point of a particular presentation. The study challenged how people who appear to value certain freedoms actually consider them beyond the universal notion itself. Using an example that stays with the subject at hand, we'll use free speech.
The surveyors of the study would ask people if they believe in fundamental rights.
"Do you believe in freedom of speech?"
Who would say no outright to that. For the subsequent series of questions, the surveyors would then throw scenarios at the subject to test the strength of their beliefs.
"What if a person says...?"
The result was a lot of people changing their mind. I wouldn't expect anything different, but it makes me contemplate a few questions. The first: why is freedom appealing in one instance and not in the other? The second: what do people assume into the their considerations?
The best that I can come up with to the first is that people generally like freedom, but when people are faced with a choice that allows or prevents a person from being hurt, we want to prevent it. In other cases, free speech is fine.
The second question is trickier. Speech as a notion and right is complex. Understanding the complexities of our interactions, consequences for them, and means by which we address those consequences take a substantial amount of effort to wrap you head around and as much as we like to think we want great answers, we also tend to want easy answers.
The opportunity cost of digging in to refine a complete position on an issue as elusive as freedom of speech is high, especially when the only real arguments you hear are that you should have it, or you should have it with constraints. This presents an easy out for those people that don't like the sounds of what some people say.
This brings us the most important piece of this whole discussion: responsibility.
People care about responsibility in the accountability sense. This is most evident when the action of a particular individual or group harms another person. Harm could be just about anything. You can harm someone's life, security, possessions, reputation and even their relationships to name a few things. In the context of speech, the harm is usually caused to the less or non-tangible things such as relationships, reputations et cetera. Sometimes it actually incites hate that people act upon and some use force against the individual or their property.
Regardless, if you can prove that there is harm and that it is unjustifiably imposed, a victim should be able to hold the actor accountable for these costs.
"Wait a minute, aren't you FOR freedom of speech" is what I would expect those who have been critical about my stance to say. But where is my inconsistency?
This framework of all-or-some that is presented by opponents of true free speech attempt to (and quite successfully) convince many of us that the government, through criminalizing types of speech, is not only the best way to mitigate problematic speech, but the only way. Furthermore, they sometimes go as far as to suggest that by defending free speech when you see a violation, you are effectively endorsing the bad behaviour.
It's no surprise these people aren't concerned with the real threat that criminalized libel presents. They use tactics of intimidation in the very defence of their position. After all, who wants to be painted as a holocaust denier or defender of cyber-bullying or whatever the speech in question is? Not me, but if you defend free speech, be prepared to be labelled.
Not only are free speech and responsibility compatible, but they are essential partners in a free society. That has never been in question. The question is how should a society that truly values free speech employ the notion of responsibility.
Indulge me while I create a scenario.
Suppose for a moment that speech is something you buy at a store. If the government prevents you from being able to buy some types of speech, even just a few, then are you free to buy whatever you want? No, you are free to buy from what the government allows you to buy. So, does this constitute free? Well, a bird in a cage isn't free because it can fly within the cage, is it? As long defamatory libel is criminal, we're caged birds.
In a society that embraces free speech with the ugly parts that come with it, there is ample opportunity to recoup damages that may be caused. Citizens have the the courts to challenge those who transgress against them. The difference is that the dispute stays between them and the cost of the damages and dispute are borne by those players. In fact, if the claim is legit, the plaintiff should be able to recoup all costs and be compensated for the damages.
People have to consider the very real impacts of speech laws. I don't know about those of you who are reading this, but I have no interest in supporting laws that guide society to the lowest common denominator. Do we really want laws that say preventing the bad is worth eliminating some good? I think we would be better off if individuals disputed their differences between each other, and not the crown. I think we would be better off if we lost none of the good speech, just to get at the bad.
Part of what's bad about libel laws are that it makes it too easy to scare people out of talking. First of all, one doesn't have to pay to go to the police and file as a victim. Then the crown lays the charge and it's her majesty vs. whomever. The victim bears no risk. It makes it impossible to determine if a person is genuinely damaged or is just being vindictive. If a person is exposed to no risk, the entry cost is virtually zero. What do they have to lose? If a little or even a lot of money was at stake, a person can make a value judgment if it's worth the risk. If it isn't, we know at least the upper threshold of what risk it was worth. If they believe in the cause and feel the risk is worth it, the y would fight it. Perhaps the poor could have legal-aid options to afford them the same chance.
Any argument that legal inequality trumps spoken criminality for what's worse for the poor, omits the fact that the poor are equally exposed to becoming either the plaintiff or the defendant. It's far worse for the poor to have the prospect of criminality because of the difficulties it causes in alleviating that poverty, especially when stacked against the prospect of having legal aid to help them.
And if they're to poor to "go after"? Well, if lack of funds deter you from taking action, are your incentives justice or quid? Cease and desist or an apology should satisfy the sincere victim, especially if we believe punishment has proportionality. (A $10 k fine would cripple me, but it's a drop in the bucket for a rich person.)
After all, is not like imprisonment or a record corrects the damages.
No one should ever feel like a criminal for saying anything, no matter how repulsive. People should be challenged, called out and held to the fire when lines of decency are crossed and if damage is caused.
But this is not the role of government. The hand is too heavy and fear of the government convinces people to walk a line that is more narrow than they otherwise would. Then we lose valuable contributions and criticisms that help make everything better.