A big thank you from the front line in the war for free speech

A big thank you from the front line in the war for free speech

By Christopher Monckton of Brenchley | May 26, 2020

To all the kind and generous readers who have donated to the appeal for Naomi Seibt, I should like to say how very grateful she for your support. Thanks to your contributions to her Patreon account, she now has $1800 a month in income, and skeptics everywhere are spreading the word. Stefan Molyneux, who has interviewed Naomi in the past, has just retweeted it, and from there it has been retweeted almost 1000 times. Latest news is that the State Media Authority in North-Rhine Westphalia has threatened Naomi with imprisonment.

Naomi, who will be writing a personal thank-you to her numerous generous donors as soon as she has time, will be devoting your donations to continuing her gallant fight not only for freedom of speech about the climate question but also for freedom from jail.

It is not just about the money, life-saving though it is. Naomi felt very much alone when she realized that the power, the might and the wealth of the State were – for purely political reasons – being aimed directly at her. The warmth of your support has been a very great comfort to her at this difficult time.

She was not happy to receive a letter from the State Media Authority in North Rhine Westphalia, where she lives, telling her that three of her YouTube videos on the climate question were against the law because she had expressed views that were not, in the Authority’s opinion, “climate-friendly”, and because she had mentioned the Heartland Institute in those videos.

Such non-“climate-friendly” mentions of Heartland, the letter said, constituted unlawful product placement.

At the time when that first letter arrived, Naomi was not well. A letter went to the Authority on her behalf, asking for more time so that she could respond properly in due course. The Authority did not give her more time. It went right ahead and issued an “administrative act”, a quasi-judicial decision against her. The act gave her just three choices:

  1. Take down two of the three videos the Authority had originally complained of; or
  2. Pay the Authority 1000 euros plus 200 euros costs for each of the two videos (total $2640 at today’s exchange rate); or
  3. Go to prison for up to 14 days in respect of each video: total up to 28 days.

Naomi made the first of the three videos five months before she even knew the Heartland Institute existed. Unsurprisingly, therefore, that video – video 1 – did not mention Heartland at all. The Authority has now backed off and accepted that video 1 could not by any stretch of the most insanely malevolent bureaucratic imagination constitute product placement for the Heartland Institute. That leaves videos 2 and 3.

In video 2, just a couple of minutes long, Naomi announced to her 88,000 YouTube followers that she was now a member of the Heartland Institute, and said that she would be working with it to take a rational and non-alarmist approach to the climate question. All she was doing was telling the truth. But in her homeland it seems it is now again unlawful to tell the truth if the State does not like the truth. That should worry all of us.

In law, that mention of Heartland does not constitute unlawful product placement because Naomi stated her connection with Heartland explicitly, right at the beginning of video 2. For that was the whole point of the video: to tell her followers, openly and honestly, that she was now with the Institute. In civilized jurisdictions, for good reason, it is only undeclared product placement that is unlawful.

In any event, the Authority says such mentions are only illegal if in the same video one advocates policy prescriptions. But the 280 words of video 2 contain no policy recommendations at all.

Video 3 did not mention Heartland even once. It was a video of a speech Naomi had given to a German audience. The event had been arranged long before I had introduced her to the Heartland Institute. Heartland had absolutely nothing to do with it, and it had absolutely nothing to do with Heartland. It beats me how anyone could imagine for a single instant that video 3 could possibly constitute product placement.

Yet the Authority – inferentially anxious to find fault with more than just one short and harmless video – persists in pursuing Naomi for video 3 as well as for video 2, even though I have written to it twice directly and once via the German Ambassador in London to warn it to cease and desist.

On the facts, no reasonable, independent and impartial public authority exercising a quasi-judicial function could possibly regard any of videos 1-3 as constituting unlawful product placement.

Remarkably, the Authority manifests its prejudice in this affair by using the words “climate-friendly” to describe its own viewpoint on the climate question, not only in its initial letter but also, far more seriously and far more culpably, in its quasi-judicial administrative act.

So to the law. The legislation under which the Authority purports to silence, fine or imprison Naomi is a relatively recent State law limiting freedom of speech in North Rhine Westphalia, taken together with a nationwide interstate treaty on control of free speech in the broadcast media.

However, these laws are themselves unlawful because they are directly, materially and substantially incompatible with Articles 9 (freedom of thought and conscience), 10 (freedom of expression, including “freedom to hold opinions and to receive and impart information and ideas without interference by public authority”), 11 (freedom of association) and 14 (prohibition of discrimination on grounds including “political or other opinion”) of the European Human Rights Convention.

The Convention, being an international treaty, takes precedence over mere national or State law. There are some limited exceptions to the rights granted by Articles 9-11 and 14, but none of the listed exceptions applies here.

Worse, the State Media Authority’s administrative act issued to Naomi’s detriment constitutes a grave, material and irremediable breach of Article 6 (right to a fair trial). The law of Germany, derived from Roman and then United Kingdom law in this respect, acknowledges two principles of natural justice: nemo sit iudex in causa propria (you can’t be the judge in a case to which you are a party) and audiatur et altera pars (both sides must be fully and fairly heard).

No self-judgment: The Authority is acting as the judge, jury and executioner in a case to which it is a party, and that is simply not allowed. Under Article 6 of the Convention, any entity exercising a quasi-judicial function must be, and be seen to be, “independent and impartial”.

Furthermore, a public authority presuming or purporting to exercise a quasi-judicial function must not, in anything it says or does or fails to say or do, give the least impression of partisanship. In this context, the Authority’s imprudent use of the term “climate-friendly” to characterize its own viewpoint on the climate question will come back to haunt it. For that phrase is laden with prejudice. The European Human Rights Court will not like it at all.

Hear both sides: When Naomi asked for more time to reply substantively to the Authority’s original letter, the Authority went ahead and issued its administrative act regardless, without hearing her side of the case.

This particular flagrant breach of the Convention is irremediable, for an extensive body of case-law precedents in the European Human Rights Court makes clear that both sides must be fully and fairly heard at every stage in the proceedings. If at any stage my right to be heard is denied to Naomi, as the Authority has denied it to her, the entire proceedings are tainted and the Authority must lose.

The Authority has thus lost the case from the outset. Nothing it now does can remedy that fatal breach of the most strictly-enforced of all the Convention’s provisions.

Since the Authority has flouted both principles of natural justice embodied in the laws of Germany and of Europe, its actions are unlawful in se, wherefore its purported “administrative act” is, as Pope Innocent X trenchantly said of the Treaty of Westphalia, “Null, void, invalid, iniquitous, unjust, damnable, reprobate, vapid, inane and empty of meaning for all time”. His Holiness’ vocabulary was almost as extensive as mine.

The Authority is wrong in fact, for it is manifest that neither of the two videos it complains of constitutes unlawful product placement. And it is wrong in law, for it has acted contrary to natural justice by judging itself, by expressing open prejudice in the terms of its judgment and by failing to allow Naomi time to respond substantively before it judged her.

Its crude attempt at silencing the freedom of thought, of conscience, of expression and of association of a 19-year-old YouTuber against whom it has chosen to discriminate on the stated ground that she is not, in its words, “climate-friendly” is now justifiably attracting worldwide condemnation.

As a result of the appeal, Naomi not only has enough money to keep body and soul together, but individual donors have come forward so that she can engage a senior administrative lawyer to fight her corner in the Verwaltungsgericht (the State administrative court).

Even the Left-leaning media hacks who had previously given Naomi a hard time for daring to question the climate-Communist Party Line are now increasingly on her side. They are shocked at the Authority’s heavy-handedness.

The Authority, now visibly desperate, has issued an imprudent and mendacious press statement falsely stating that it had given Naomi a fair chance to put her side of the case. The courts will not like that.

An appeal against the Authority’s kangaroo-court misconduct has been lodged. In due course a proper judge will hear not only the Authority’s side of the case but Naomi’s as well – the case that the Authority scandalously refused to hear before it issued its quasi-judicial administrative act.

One question the judge will be asked to rule upon is whether the Authority must answer Naomi’s request to be told which of its “climate-friendly” fellow-believers told it about her videos.

On her behalf, a copy of an email from a third party to the Authority about Naomi’s videos was requested and provided, but the Authority redacted the name of the sender without having declared the redaction. That failure to declare that a document furnished in court proceedings had been altered from its original state is a serious breach of process. The Authority has thus put itself in contempt of court. The offense is imprisonable.

The question arises whether the Authority and its “climate-friendly” clerks, in demanding money from Naomi with menaces even though it knows perfectly well – for it has been plainly, fairly and repeatedly told – that it has no legitimate grounds whatsoever to make those demands, has committed the serious, imprisonable criminal offences of blackmail, fraud and misfeasance in a public office.

I shall be referring the case papers to the German Ambassador with a formal complaint to be forwarded to the police and investigating authorities in Münster, where Naomi lives, and in Berlin.

The international news media are already planning to be present in the Verwaltungsgericht. This will be a battle royal for freedom of speech against the over-mighty State. Thanks to your generosity, the State will crash and burn, and freedom of speech will win. It will not be Naomi that goes to jail. Thank you all again. Let freedom ring!