Needless to say, the editorial boards of the Toronto Star and the Globe and Mail were pleased with the Supreme Court ruling in the Rafe Mair case.

The Globe's headline was "The right to exaggerate."

For background, the case involved former B.C. talk show host Rafe Mair, his employer of the time and gay rights opponent Kari Simpson. Mair, a very colorful broadcaster, used some, ahem, colourful language in calling down Simpson.

Mair used the defence of fair comment. He won at trial, the B.C. Court of Appeal ruled against him, and the Supreme Court found for him. See this post for details.

From the editorial:

In a democracy, the right to be unreasonable is as important as any other right. You might say the right to free speech rests on it – on the right to exaggerate, to mock, to be unfair, to be wrong. Without this right, there could be no comedians, no newspaper columnists, no editorial cartoonists, no satirists, no Internet, no talk radio. And no Rafe Mair. ...

Fair comment does mean the view of a fair person on a given set of facts. It means that anyone could honestly hold the view. The B.C. appeal court had ruled that there was no evidence on which Mr. Mair could have concluded that Ms. Simpson condoned violence, and that since he was wrong on the facts, he was not entitled to the defence of fair comment. In its confusion over what is fact and what is comment, it would cast a chill over public debate.

As the Supreme Court pointed out, Rafe Mair is a commentator, not a reporter, and Ms. Simpson's violent images could lead some listeners to believe she condoned violence.

Because it is safe to be Rafe Mair, it is also safe for other Canadians to be outspokenly themselves.

The Star, which used the headline "Free Speech and Hitler," elcomed the ruling -- but isn't down with the widespread use of "Hitler" as an epithet:

"ublic controversy can be a rough trade and the law needs to accommodate its requirements," said the Supreme Court in its judgment.

In effect, the Supreme Court is saying that it is permissible to compare someone to Hitler as long as it is clearly an opinion and has at least some basis in fact.

That's good news for talk-show hosts, newspaper columnists, bloggers ... and editorial writers. But with liberty comes responsibility, and it must be said that comparisons to Hitler are thrown around all too freely. Mike Harris, for example, was regularly compared to der Fuhrer when he was premier of Ontario – for amalgamating Toronto, cutting government spending, laying off civil servants, and a whole range of other actions that were not remotely Hitlerite.

The Hitler label is regularly attached to Prime Minister Stephen Harper, as well. A Google search using his name and Hitler's turned up 81,900 hits – many of them from the blogosphere but some in the mainstream media.

Such comparisons – while now apparently legally defensible – insult the memories of the victims of the real Hitler and diminish the quality of public discourse in this country.

Frankly, I like the Globe editorial better.

Here's an excerpt from the Vancouver Sun's editorial take -- "Decision clarifies fair comment guidelines":

After agreeing that Mair's words were defamatory, (Justice Ian) Binnie went on to discuss the elements of the defence of fair comment and their application to the case. First, the comment has to be on a matter of public interest, an element easily satisfied given that the comment concerned the inclusion of gay-friendly materials in schools.

Similarly, the second and third requirements -- that the comment be based on fact, but be understood as comment rather than fact -- were also satisfied, since the comment was based on the fact that Simpson had spoken on radio and at a rally, and since Mair is widely known as a commentator.

The case turned on the fourth requirement, which concerns the "honest belief" element of the fair comment defence. This requirement -- whether the defendant had an honest belief in what he said -- can be interpreted in two ways.

First, the subjective interpretation states that for the defence to succeed, the defendant must show that he honestly believed in what has been imputed to him based on his words. If this interpretation is correct, Mair would have to show he honestly believed Simpson would condone violence. The B.C. Court of Appeal followed this interpretation -- and since Mair testified that his editorial was meant to convey that Simpson was an "intolerant bigot," not that she would condone violence -- the court concluded that Mair failed to satisfy the honest belief element of the defence. ...

this case, the court noted that since Simpson's public speeches were full of violent images, including references to "war . . . [where] the spoils turn out to be our children," "militant homosexuals" and "[w]ar, you shoot, they shoot," one could come to an honest belief that she would condone violence against gays. Consequently, the court concluded that Mair's fair comment defence was successful.

While this represents a slight modification of the honest belief element of the fair comment defence, it seems reasonable enough since it's difficult to hold people responsible for what others impute to them. Those subject to defamatory comments will still be protected, as the objective test still requires, because the English courts have stated, that comments "be relevant to the facts to which [they are] addressed."

Or as the Canadian court said, the objective test "represents a balance between free expression on matters of public interest, and the appropriate protection of reputation against damage."

The Sun's take is a good analysis of the ruling, but the paper doesn't really say that much about whether it was a good thing or bad thing. It did draw a link to the current kerfuffle over human rights commissions and free expression, saying in its first paragraph:

While human rights tribunals across Canada receive continued publicity for the threat they pose to freedom of expression, it's good to see that the Supreme Court of Canada has affirmed the importance of that freedom.

As I said in another post, the Canadian Islamic Congress and the complainants in the matter involving Maclean's magazine shouldn't draw much comfort in the Mair ruling.