Court rules that ‘groomer’ is a slur, not protected speech

An Ontario court has dismissed an attempted defence of a defamation suit launched by drag performer Caitlin Hartlen and Rainbow Alliance Dryden. This is after an individual, Brian Webster, asserted on his public Facebook page in September 2022 that drag performers at an all-ages event in Dryden, Ontario, were “groomers,” and singled out Hartlen in his post. Webster tried to have the action dismissed, but was unsuccessful at trial. 

“As the Plaintiffs’ evidence confirms, the term ‘groomer’ refers to someone who manipulatively develops a relationship or connection with a child to exploit and abuse them,” Justice Tracey Nieckarz wrote in her Dec. 14 decision. “It is a slur that is used to allege that drag performers sexualize children and aim to recruit them into the 2SLGBTQI community. I agree with the Plaintiffs that perpetuating such stereotypes and myths about members of the 2SLGBTQI community is not public interest speech.”

Nieckarz added that Webster, who runs a page called “Real Thunder Bay Courthouse—Inside Edition,” which bills itself as a “news/media outlet,” had not satisfied the onus on him of demonstrating that the expression is public interest speech, so his motion to dismiss the matter under Ontario’s anti-SLAPP laws, which aim to combat malicious or bad faith defamation suits (SLAPP meaning “strategic lawsuit against public participation”) could not succeed.

Douglas Judson, partner with Judson Howie LLP in Fort Frances, Ontario, the lawyer for Hartlen and Rainbow Alliance Dryden, says that this is a significant decision for LGBTQ2S+ communities because it clarifies the law of defamation as a tool to protect members of the community who are libelled in this way.

“The litigation at issue deals with the use of the ‘groomer’ slur, which has seen a resurgence in popularity from the political right, largely targeting members of the trans community as well as the drag community, but more broadly the queer community in general,” Judson says.

Judson says there have been questions if someone could sue based on these slurs, because a lot of the rhetoric is somehow attached to what is happening politically, which raises questions as to whether it is somehow a matter of public interest.

“What we have now is a decision that very clearly comes down on the side of our clients, which are a small-town Pride organization and a drag king who were attacked in this matter online, saying, ‘No, this is not a matter of public interest,’” Judson says. 

Judson believes that this sends a strong message when added to the guidance from the Supreme Court of Canada in May in the case of Hansman v. Neufeld, where the Court said it’s important to be able to engage in counter-speech. In Hansman, the Court said that there was a right to react to harmful speech, dismissing an anti-SLAPP motion in a case where a gay teacher called out the bigoted, transphobic and hateful views of a public school board trustee.

Judson says that taking these together shows the law of defamation moving in a direction that is recognizing the social context in which expression like this is taking place.

During the hearing, the defendant tried to claim that he was talking about the CBC and not the drag community, which the judge did not accept; nor did she accept his assertion this was a statement of opinion, but rather determined that the slur had been presented as a statement of fact.

Judson notes that in Webster’s motion record, he pointed to social media posts from Conservative Party leader Pierre Poilievre about defunding the CBC, as well as posts from People’s Party of Canada leader Maxime Bernier that retweeted content from Libs of TikTok concerned about CBC “normalizing drag for children,” also with a “Defund the CBC” message in order to justify his position that these were matters of public interest.

Judson says that the judge recognized that any public utterances do not automatically attach to public interest, and that even if Webster was actually engaging in a discussion of the CBC, that didn’t make his comments about drag performers being “groomers” immune from defamation claims.

“That’s important because another thing that is happening is that we’re seeing a lot of rhetoric online happening in relation to public events,” Judson says. 

He also points to the judge determining that Webster didn’t know the performers or anyone involved, so he had no basis on which to ground his smear.

“Part of the merit analysis is going to look at whether the elements of defamation are made out, or whether there are facts that can ground it in fair comment, and that’s where that analysis comes in,” Judson says. “Our judge looked at the claim of fair comment and was able to see whether there were elements of a defence there sufficient to protect his expression.”

Daniel Girlando, a partner at Borden Ladner Gervais LLP in Toronto, and the chair of Egale Canada’s legal issues committee, acted on behalf of Egale as intervenors in the case.

“We are very pleased with the result. We think it’s an excellent decision—it’s very thoughtful and very simple in the message it provides, in the environment that we’re in,” Girlando says.

Girlando hopes that the decision will go a long way in queer and trans people being able to protect themselves in the face of hateful language and defamation.

Right-wing actors on social media have started warning their compatriots that they can be sued for using words like “groomer” or “predator,” and Girlando hopes that they are reflecting on the harm of their language, and not just signalling to use other coded language instead.

Girlando points out that the plaintiffs in this case were subjected to threats, as well as comments such as “let’s put tags on these animals.” 

“The court make a clear decision that ‘grooming’ is a slur, and while this time it was used in regards to drag performers, it’s used against a lot of people, recycling hateful myths that just continue the prejudice and exposure to hatred that our community has been experiencing for a long time,” Girlando says.

Girlando says that this precedent means that the queer community will be able to protect themselves from defamation and hateful speech going forward.

“One of the main reasons why Egale entered into this is we wanted to ensure that queer people and people in the community could defend themselves when his happens, and when the kind of speech has real consequences to their reputation, but also to their safety, and they can take legal action,” Girlando says. “This decision really recognizes that right.”

Judson notes that he did file expert evidence that included the history of the “groomer” rhetoric. It included studies from an academic about how online hate normalizes actual violence, and the amount of online hatred can be tied to specific events, such as the spike in comments made after the “Don’t Say Gay” education bill passed in Florida.

“We are seeing the law develop in a direction that should offer a measure of protection and accountability for people that engage in this kind of irresponsible, dangerous commentary,” Judson says.

With the anti-SLAPP motion disposed of, the matter can move to a full trial in the New Year. Judson also says that he is representing a different group of drag performers from the same defendant, and he’s hoping that those two cases can be heard together, though there remains the possibility that Webster will appeal this decision.

“It remains possible that this will resolve, but for now, we’re looking to set a timetable to move this forward,” Judson says. “But for the moment, the decision we have is important for the LGBTQ2S+ community, and we’re optimistic that we can continue to vindicate that interest.”