SILENCE HAS ITS PRICE
by George Jonas
National Post
July 4, 2005

Sticks and stones can break your bones, but words can land you in prison.
Not just other people's words, as in false accusations, but your own words,
spoken or unspoken. You can end up in jail for what you choose, or refuse,
to say. And yes ­ thank you for asking ­ this can happen in free countries.

As an example of words spoken, there's the case of David Ahenakew, awaiting
a Saskatoon court's decision in his hate-speech trial this week. Mr.
Ahenakew, 71, is a former native leader and recipient of various civil and
military honours. He's also a crude anti-Semite. This isn't a crime in
Canada, but being open about it is ­ or at least can be, depending on
circumstances. Mr. Ahenakew is alleged not to have kept his nasty
sentiments about Jews to himself, or confined them to private conversations
­ which would be permissible, even if not COMME IL FAUT ­ but expressed
them during a 2002 Federation of Saskatchewan Indian Nations health
conference, and later repeated in a newspaper interview.

Mr. Ahenakew's defences (as far as I can make them out) are that a.) he's
sorry, b.) he's a diabetic, and c.) that when he told a reporter the Jews
"damned near owned all of Germany" and that's why Hitler "fried six million
of those guys, you know" and "how do you get rid of a disease like that,
that's going to take over everything?" he had no idea he was being
interviewed.

The decision is up to Judge Marty Irwin. If it were up to me, Mr. Ahenakew
would walk, not because his defences impress me, but partly because I don't
think what he did should amount to a crime, and mainly because he's a
paleolithic troglodyte. He comes across as a surly, witless illustration of
embittered illiteracy and hebetude. Far from sending him to jail for
speaking his zooid mind in public, I would encourage him. He gives
anti-Semitism a bad name.

I'd feel more ambivalent if I had to judge someone like, say, the
flamboyant Hellenic-Anglo-American writer and man-about-town, Taki
Theodoracopulos. This glittering contributor to the British SPECTATOR and
co-editor (with Pat Buchanan) of THE AMERICAN CONSERVATIVE, is periodically
threatened with prosecution under such Orwellian pieces of legislation as
Britain's looney-left inspired "Public Order Act." The law is loathsome,
but Taki ­ as he signs his columns ­ can hold his own with most
anti-Semites, in my view. Unlike the hebephrenic Mr. Ahenakew, however, the
Greek shipping heir is literate, witty, iconoclastic, sturdy, spunky, and,
on matters not related to his ethnophobias, frequently right. He makes
anti-Semitism seem attractive.

Throwing Taki into a dungeon ­ though massively wrong ­ would make some
practical sense. Locking up Mr. Ahenakew for airing his putrid views offers
no comparable benefit.

For words unspoken, we go to the cases of NEW YORK TIMES correspondent
Judith Miller and TIME magazine reporter Matthew Cooper.

Last Monday the U.S. Supreme Court rejected an appeal by the two
journalists who argued they shouldn't be held in contempt for refusing to
reveal their confidential sources. Oh yes they should be, the grim Supremes
replied. The judges let a lower court decision stand, reaffirming the old
legal maxim that "the public has a right to every man's evidence."
Including, horror of horrors, journalists.

After handing down the decision, the judiciary stood toe to toe
with the Fourth Estate ­ and journalism blinked. According to a news
release, Times Inc.'s editor-in-chief, Norman Pearlstine, "after much
reflection" concluded that, "We are not above the law."

This was a salutary conclusion, even if it took much reflection
for Mr. Pearlstine to arrive at it. Still, better late than never, I
suppose. Others in my profession are still wrestling with the dilemma.

Some fellow ink-stained wretches in this country have reservations
about two-tiered medicine, but not about two-tiered justice. They're ready
to join the ranks of groups demanding enshrined privileges. Journalists
unearth scandals, so they shouldn't have to reveal their sources. But
extend the reasoning: Security organs catch terrorists, so they should be
entitled to search without a warrant; abuse victims encourage others to
come forward, so they should be exempt from cross-examination, and so on.
To call this trend dangerous is an understatement. The media should be the
first to oppose it, instead of trying to hitch a ride on it.

If people can't be compelled to bear witness, societies can't resolve or
adjudicate disputes. Where courts can't function commerce comes to a
standstill. Innocent people end up in jail, and criminals go free. Broad
immunities, like broad powers, threaten the rule of law.

Will information dry up if journalists don't acquire special status? I
doubt it. The media never had guarantees of immunity. No reporter could
ever promise a whistle-blower that the authorities won't ask, only that the
reporter won't tell.

Journalists, like other citizens, have two ways of abiding by the law. One
is to do what a court orders; the other is to accept the consequences of
refusing. Where we can't honourably choose the first ­ clearly, we can't
abandon a confidential source at the courthouse door ­ the answer isn't to
seek exemption from the second. The answer is willingness to go to jail.
For journalists, it's an occupational hazard.

©National Post

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