A SLAPP in the face for free speech

Why have journalists been silent?

When the bottom line is threatened, corporations typically show little concern for political principles such as freedom of expression. Too often under capitalism, freedom is just another word for maximizing profits.

But even when we have no illusions about the predatory nature of capitalism, there’s something particularly disheartening when a media corporation abandons free speech principles. Journalists are supposed to be the good guys when it comes to freedom of expression, right? Shouldn’t media managers, of all people, support these principles?

Apparently not when ideology gets in the way, as seems to be the case at Canada’s largest media corporation.

Canwest – owner of newspaper, television, and online properties including the National Post and Global TV – is trying to use trademark law to punish political activists’ free speech in a classic SLAPP (strategic lawsuit against public participation).
The case is relatively simple: Canwest’s late founder, Izzy Asper, was a vocal supporter of Israel – he’s been quoted as telling the Jerusalem Post, “In all our newspapers, including the National Post, we have a very pro-Israel position. . . . [W]e are the strongest supporter of Israel in Canada.” And Canwest papers have faithfully maintained that ideological commitment since Asper’s death in 2003.

Seeking to highlight this admitted pro-Israel slant in Canwest papers, two activists calling themselves the Palestine Media Collective produced a parody of the Vancouver Sun that included such stories as “Study Shows Truth Biased against Israel, By CYN SORSHEEP.” As with most parodies, some of the attempts are clever and some fall flat. But there’s no way not to recognize it as a parody.

Because the parody was produced anonymously (the authors, Carel Moiseiwitsch and Gordon Murray, have since stepped up to identify themselves publicly), Canwest sued the printer and another activist who had passed out a few copies, Mordecai Briemberg, claiming a trademark violation.

Such a suit is legitimate only when the plaintiff can show there’s a reasonable likelihood that people will confuse the fake with the real and that some harm will result. In this case, there clearly is no confusion and no harm, and hence no serious claim. But Canwest presses on.

Calling the Palestine Media Collective’s paper “a counterfeit version” that amounts to “identity theft,” Canwest seems to want to frame this as a kind of intellectual-property terrorism: “This piece was not satirical. It was not a clever spoof. It was a deliberate act to mislead and misinform thousands of people by using the actual Vancouver Sun masthead, logo and layout,” reads a company statement on the case.

According to a 2007 story in the Sun, Canwest believes that the defendants were “motivated by hostility to the principal shareholders of the plaintiff and by a desire to undermine, or hurt, the business of the plaintiff and its principal shareholders” and that they “harbour antagonistic views towards the plaintiff.”

This all seems a bit thin-skinned for a media company. It’s true enough that the activists in question don’t seem to like the reporting and editorial opinions of the Sun, but that hardly warrants a lawsuit. And as for motivation, I have interviewed Briemberg, and I didn’t pick up on any hostility. He’s a long-time activist, driven by the same concerns for social and economic justice that motivate most people on the political left. If he’s hostile to anything, it’s to injustice.

But this can’t be about feelings, of course; it’s about freedom of speech and of the press in a democratic society. If Canwest prevails – if citizens’ judgments about the quality of a newspaper’s coverage can be the grounds for a lawsuit – then media criticism in Canada is made more difficult and democracy suffers. In a mass-mediated society, people must be free to critique the media just as they critique government and other businesses.

Many journalists agree. Gary Engler, a journalist at the Vancouver Sun, told me that CEP Local 2000 (the union representing journalists at the Sun and Province newspapers) has passed a resolution condemning the Canwest lawsuit and has voted to send a resolution condemning the suit to the B.C. Federation of Labour convention this fall.

Professional associations of librarians and teachers also are on record opposing the suit, and these statements are important. But why aren’t more journalists weighing in on this issue? It’s no surprise that Canwest papers aren’t writing about it, but why the silence from most others? Apart from the story in the Sun, my search revealed one news story in the Globe and Mail and a mention of the case by one of that paper’s columnists. Some websites have reported the story, and activist groups are weighing in. But where are the stories in the corporate press?

Canwest is a big company with an ideological axe to grind. We should critique the company’s abuse of power in filing the suit and count this as a reminder of the potential problems that come with media concentration. But the silence of other journalists should trouble us even more. When a profession that provides so much of our information won’t hold itself accountable, it’s a threat not just to journalism but to democracy.

Robert Jensen is a journalism professor at the University of Texas at Austin and the author of such books as Getting Off: Pornography and the End of Masculinity and Citizens of the Empire: The Struggle to Claim Our Humanity. His latest book, All My Bones Shake, will be published in 2009 by Soft Skull Press.

Briarpatch remains independent because of your support. Subscribe now.