Twitter, Defamation, and New York Times v. Sullivan

One of the new features of our world is social media and Twitter.  We now have the phenomenon known as a Twitter Mob, where a large number of people tweet or retweet negative information about a person. Such mobs are said to be quite upsetting and no doubt can do significant harm to a person’s reputation.

Unsurprisingly, Charles Murray, the co-author of the controversial book, The Bell Curve has been subject to such reactions on Twitter. In particular, various people on Twitter have referred to Murray as a white supremacist — see here and here. As anyone who knows Murray’s work should realize, however controversial his views about some very sensitive matters, he is not a white supremacist by the ordinary meaning of the term. As Murray himself has tweeted, a “white supremacist who married a Thai and argues that gentile whites are behind East Asians & Jews in IQ. Weird guy.”

If the claim that Murray is a white supremacist is an obvious falsehood that harms his reputation, then why is this allowed? Put differently, shouldn’t Murray be able to sue each of these persons for defamation?

The short answer appears to be that the constitutional law framework governing defamation law originated in New York Times v. Sullivan makes such a lawsuit problematic. Under Sullivan, a defamation claim cannot be successfully brought by a person who is a public figure unless the alleged false statement was made with actual malice — that is, with knowledge of its falsity or reckless disregard of whether it was false. It is not entirely clear what such recklessness is, but it is clear that it goes beyond mere negligence. Thus, if the speaker was merely negligent in failing to know that the statement was false, that is not enough to prevail.

Another problem for such a lawsuit is the distinction between statements of fact and statements of opinion. The Court has claimed that “there is no such thing as a false idea” and that statements of opinion are not actionable (Gertz v. Robert Welch).  While it is difficult to draw that distinction, it is possible that a court might conclude that the claim that Murray is a white supremacist is a matter of opinion. Further, the Supreme Court has sometimes treated claims about a person as not involving straightforward assertions of fact, but as “no more than rhetorical hyperbole.” (For a good example of this, see Greenbelt Publishing v. Bresler, treating the claim that someone engaged in blackmail as not asserting the actual crime of blackmail, but as rhetorical hyperbole). It is possible that the claim that Murray was a white supremacist might be treated as such rhetorical hyperbole.

While I am not an expert in defamation law or the constitutional restrictions on that law, in the end it does seem quite questionable that Murray would be able to easily recover against these tweets. Yet, to me, they seem to be both false and very damaging. People have different views about the Supreme Court’s Sullivan jurisprudence, but whether one likes it on balance or not, a significant cost of this jurisprudence is that it makes it so difficult for lawsuits to be brought against such slanders.