October 24, 1998
Marc Rotenberg, Esq.
Electronic Privacy Information Center
666 Pennsylvania Avenue, SE
Washington, DC 20003
Dear Mr. Rotenberg:
I am sorry I did not have a chance to talk with you privately after the "Privacy Pandemonium" symposium at the Cato Institute on October 16, but perhaps you will remember me. I asked a question from the audience. I said that I was the author and maintainer of a controversial web page and I had naturally picked up on the discussion of First Amendment issues and telephone calls.
I then said freedom of speech on the Internet was currently under ferocious attack. I cited the case of holocaust revisionist Ernst Zundel in Canada who is in danger of being silenced because he offends some vested interests. As you know, Zundel is currently under investigation by the Canadian Human Rights Commission (CHRC) for transmitting "hate speech" via a telephone. It is my understanding that CHRC is further claiming that the Internet is really a telephone, or "like a telephone" and that the Commission thus has jurisdiction over Zundel's speech on the Internet.
I noted to the Cato panel that the Zundel case was not receiving much coverage from the free speech cyber warriors. I said I had done a search of your [EPIC's] entire web site on October 15 and found no references at all to the case.
Finally I asked that in view of the fact that the Zundel case would set a total precedent internationally, why there seemed to be a reluctance to take up Mr. Zundel's case.
You answered by saying that EPIC had been involved as anyone in protecting
First Amendments rights, and cited several efforts EPIC had been involved
in. You cited EPIC's involvement in a dispute with the German government
and Compuserve, and that EPIC wrote to the German Minister for Justice
and urged him not to go ahead with the prosecution.
Then you said that you were somewhat familiar with the Zundel case, and that you knew some people who were involved with it. You also said EPIC had not been involved in the Zundel case to date. You then went on to say a number of groups (the ACLU was one you mentioned) were trying to identify threats to freedom.
I have decided I want to explore the Zundel case and the response of the freedom of speech/privacy cyber warriors in more detail. I am preparing an article for publication. Therefore, I wish to take this opportunity to ask you some questions.
1. In view of the grave precedent-setting nature of the attempt to censor Mr. Zundel by the Canadian Human Rights Commission, why are groups such as EPIC not actively involved?
2. I notice the name of your organization is the Electronic INFORMATION Privacy Center. This name suggests dissemination of *information* concerning privacy/freedom of speech is EPIC's most important function. In view of that, how is it that EPIC's web page caries no information about the Zundel case?
3. You said EPIC worked on behalf of Compuserve in the dispute with the German government. The dispute, as I understand it, concerned a web page that carried much of Zundel's holocaust revisionist information into Germany. How did EPIC become involved in the case?
4. In view of the fact EPIC assisted Compuserve in Germany, what is the reason for EPIC's non participation in Zundel's case, since Zundel's holocaust revisionism material on the WWW was the causa bellum for the whole affair?
5. You mentioned at Cato that you knew several people who were involved with the Zundel case. Could you please tell me who they are, what organizations they represent, and what role they are playing? I would very much like to contact those people for interviews.
6. On May 25, 1998, the Canadian Human Rights Commission ruled that in the Zundel's case, the truth is not a defense. Here is a quote from the ruling:
". . . consistent with a focus on effect rather than intent, it is the effect of the message on the recipient, and ultimately on the person or group vilified, that is the focus of the analysis. The truth in some absolute sense really plays no role. Rather, it is the social context in which the message is delivered and heard which will determine the effect that the communication will have on the listener. It is not the truth or falsity per se that will evoke the emotion but rather how it is understood by the recipient. The objective truth of the statement is ultimately of no consequence if the subjective interpretation, by virtue of tone, social context and medium is one which 'arouses unusually strong and deep-felt emotions of detestation, calumny and vilification'. Therefore, in our view, whether the message is true or not is immaterial. Whether it is perceived to be true or credible may very well add to its impact, but its actual basis in truth is outside the scope of this inquiry."
(I found the text at: http://www.webcom.com/ezundel/english/misc/interm_decision.html).
As a lawyer and as a freedom of speech advocate, do you applaud or condemn this ruling? Whatever your views, why have you not made them public, on the EPIC website and in other forums?
Allow me to thank you in advance for your help on this project. If it is more convenient to respond to me via e-mail, please feel free to do so. My e-mail address is .
Carol A. Valentine
President, Public Action, Inc.
Curator, Waco Holocaust Electronic Museum