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Using Defamation Law to Restrain False Statements

Recently, I wrote a post about the possibility of using defamation law to restrain the Twitter mobs and others who harm and defame people.  I am happy to see that defamation law is now being used in exactly this way.

Perhaps the most significant event involves the Southern Poverty Law Center’s false statements about Quilliam International and its founder, Maajid Nawaz. Nawaz, who coauthored a book with Sam Harris, is a Muslim who fights both Islamic extremism and anti-Muslim bias. The SPLC falsely claimed that Quilliam and Nawaz were anti-Muslim extremists, naming them in its Field Guide to Anti-Muslim Extremists, which is intended to be used by journalists and often leads to Twitter attacks.

Nawaz successfully sued the SPLC: the result was a settlement agreement in which the SPLC paid Quilliam a $3.375 million settlement and issued a retraction and apology for its false statements about Quilliam. Wow. That’s a big deal.

And now it appears that the prospect of such large payouts may lead other persons and organizations who have been defamed by the SPLC to bring lawsuits. Tyler O’Neil just wrote an article entitled “‘About 60 Organizations’ Are Considering a Lawsuit Against the SPLC Following $3M Nawaz Settlement.” The article notes the case of the Ruth Institute, run by (former?) libertarian Jennifer Roback Morse, which was listed as a hate group by SPLC merely because it opposes same sex marriage:

“Truthfully, I have not been following the activities of the SPLC too closely,” Jennifer Roback Morse, founder and president of the Ruth Institute, an organization that lost its credit card processor, Vanco Payments, over the SPLC’s “hate group” labeling last year, told PJ Media. “Pursuing our mission is more important than attempting to take on the behemoth of the SPLC.”

“I must say, though, this apology to Mr. Nawaz has caused us to consider our options,” Morse added, cryptically.

Another group that has been targeted by the SPLC is Prager Videos, associated with Dennis Prager. While the SPLC does not specifically state that Prager Videos is a hate group, it does attempt to attack it through unethical guilt-by-association claims.

The SPLC is used by other companies to deny service to certain groups, as the example concerning the Ruth Institute and Vanco Payments  indicates. Perhaps if the SPLC were hit with more successful lawsuits, these other companies would stop trusting the SPLC’s pronouncements.

Another example of defamation law pushing back against wrongful conduct involves Jordan Peterson. Bloomsburg University professor Wendy Lynne Lee called Peterson an “incel misogynist” and “committed white nationalist.” (“Incel” is shorthand for an involuntary celibate—a man who cannot attract women—but Peterson is married and has children.) Peterson threatened to sue Lee, who then was forced to apologize and withdraw her statement. Lee did so in the most reluctant way, saying: “As per threat to sue for libel, I hereby apologize to Jordan Peterson for referring to him as an involuntary celibate (incel), a misogynist, a committed white nationalist, and someone who has descended into rank bigotry.” She later wrote: “I find it absurd. Many have actually said these things about Peterson and at much greater length.”

Not much of a defense and not much contrition. But that is the point. The law forces bad people to respect others.

I think these limited victories have an important message. When social justice warriors are forced to pay a price for their misdeeds, they generally back down. The problem is that their employers in the media (see the case of TBS commentator Samantha Bee) and the universities don’t impose meaningful consequences; if they did, much of the current craziness would fly away.

Reader Discussion

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on June 21, 2018 at 09:22:46 am

SPLC is an odious fundraising scam that should be sued into oblivion.

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Mark Pulliam
on June 21, 2018 at 09:28:32 am

Well, all that SPLC needs to do to defend itself is claim it is a newspaper - then the wraps can come off! I mean newspapers can say and do anything, right? right?

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Guttenburgs Press and Brewery
on June 21, 2018 at 10:17:59 am

After waking to a wet basement in rain-soaked mid-Atlantic, I am delighted to have this piece of happy news - thanks!

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Paul Binotto
on June 21, 2018 at 11:34:52 am

More evidence of how Trump exacerbates climate change.
Seldom rained and basements never flooded in the mid-Atlantic prior to November, 2017.

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Pukka Luftmensch
on June 21, 2018 at 11:52:07 am

Ha! If only that were true; I can attest from years of experience, to the contrary...

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Paul Binotto
on June 21, 2018 at 11:56:54 am

Then again, the run-off from the sheading of all the Soggy-Proggy tears can't be helping the situation any...Ha!

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Paul Binotto
on June 21, 2018 at 15:30:11 pm

Sad to see an editorial on Liberty Fund attacking free speech.

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Roderick T. Long
on June 21, 2018 at 17:58:52 pm

This defamation settlement is a positive development. Something must be done to deter the character-assassination that is routinely undertaken by the Left in the name of free speech and free press.

I see that Jordan Peterson has today deployed this tactic of self-defense against a university. I hope that the Family Research Council, Dennis Praeger and others slimed by SPLC do the same. Bezos, who underwrites their "slime by rating" scam should be dragged into these cases if any plausible legal grounds exists. Let him spend a few million (lunch money, I know) on legal fees for defamation defense and settlements.

Here is current news of Jordan Peterson's lawsuit:
https://www.washingtontimes.com/news/2018/jun/21/jordan-b-peterson-hits-wilfrid-laurier-university-/?utm_source=Boomtrain&utm_medium=manual&utm_campaign=20180326&utm_term=newsalert&utm_content=newsalert

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Pukka Luftmensch
on June 21, 2018 at 19:28:43 pm

It is noteworthy that the statute of limitations for defamation is one year in the majority of jurisdictions in the U.S. (in Tennessee, it is six months only). Moreover, some jurisdictions like Texas or Florida require that, prior to filing suit, a plaintiff request the prospective defendant to retract his or her defamatory falsehoods. These reminders are apropos of the Dr. Morse's mention that the harmful labeling occurred last year (I brought these to her Institution's attention few hours ago).

This article states that "the law forces bad people to respect others". I wish it always forced them to do so. The Michigan judiciary is an infamous exception that prevents that from happening, as I have expressed here and in other platforms. Indeed, judges from Michigan supreme, appellate, and trial courts (including the felon Carol Kuhnke) have acted blatantly toward the two defamation lawsuits I have filed.

I encourage any defamed person to take legal action nonetheless, because (1) disproving a defamer's falsehoods, (2) having the defamer fall in inconsistencies (before, during, and after his deposition), and (3) showing that he or she deliberately deceived his audience, constitute evidence which henceforth anyone can see if the plaintiff opts to divulge the evidence. No group of judges can change that, regardless of how blatantly they ignore evidence, suppress laws, and obstruct justice.

But vindicating one's good name and reputation by publishing the evidence is not enough. Economic damages caused by defamatory falsehoods should still compel judges to act with integrity. Absent that judicial integrity, the injured plaintiff should escalate his cases to the extent possible. I have done that by recently filing in the U.S. Supreme Court a Petition for Writ of Certiorari in both of my cases [1], [2].

Also, defamation law still needs to improve. For instance, absolute privilege should be stricken altogether therefrom. Courts often remind us why false statements made in judicial proceedings are protected by absolute privilege. However, the reality is that a defense counsel's litigation "strategy" often consists of prejudicing the plaintiff before the judge/jury. The result is that those absolutely privileged falsehoods only add injury to defamed plaintiff.

Only in backward jurisdictions, such as Michigan, false accusations made to Law Enforcement are still protected by absolute privilege. And false accusers are hardly ever prosecuted/sanctions through alternative "remedies" such as perjury or malicious prosecution. In reality, what we have is yet another example of judicial hypocrisy: On the one hand, courts keep telling us that false accusations of felonies are "defamatory per se"; on the other hand, the plaintiff is precluded from seeking remedies to any "defamation per se" that the false accuser published to the police.

If there were decent awareness of how important one's dignity and earned reputation are, our society would neither tolerate a defamer's falsehoods nor condone judges who leave defamation unremedied.

[1] https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1560.html
[2] https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1576.html

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Iñaki Viggers
on June 21, 2018 at 23:28:56 pm

I guess we're not allowed to call people who march under the Nazi flat and chant "Jews will not replace us" Nazis any more...

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excessivelyperky
on June 22, 2018 at 08:22:23 am

If only. https://www.city-journal.org/html/demagogic-bully-15370.html

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Mark Pulliam
on June 22, 2018 at 10:37:19 am

Seems like a fair exchange as there is no "guessing" required to understand that we are no longer allowed to call an ILLEGAL immigrant and illegal, wouldn't you say?

Hey, even the Holy of Holies, the ACLU is apparently giving up on FREE speech. Like perky, they too only want to protect THAT speech which supports their social agenda. See below:

https://hotair.com/archives/2018/06/21/aclu-tip-toes-away-first-amendment/

It must be frustrating for poor perky. Perhaps, I can offer perky an ablution in my ever warming cauldron to ease the stress that surely must accompany the horrific assault on SPLC's right to slander. The solution is quite perky and bubbly. The Smurfs are said to enjoy it!

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gargamel rules smurfs
on June 22, 2018 at 11:43:30 am

This defamation settlement is a positive development. Something must be done to deter the character-assassination that is routinely undertaken by the Left in the name of free speech and free press.

Hey, I'm quite enthusiastic about this development, too--but I don't see the partisan angle. Our current president spent years claiming that Obama lacked US citizenship, that Muslims in New Jersey cheered on TV when the towers fell on 9/11, and that the people accused of "wilding" in Central Park were guilty (among other things). Baseless character assassination seems to be a non-partisan (bi-partisan? pan-partisan? supra-partisan?) activity.

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nobody.really
on June 22, 2018 at 13:02:19 pm

You're really smarter that this, nobodyreally. Just because it is a fact that defamatory and libelous rhetoric it is a cross-party problem, it is relevant that one side is far more often guilty of it than the other. Were it subject to quantification, i think something in the ballpark of an 75 to 25 ratio is what we'd find. And if you quantified it only by professional journalists, activists, pundits, company officers, and politicians, talking on public channels, and just bracketed out all the commenters and unknown tweeters (but left in the orchestrated smear campaigns), we'd probably be looking at a 95 to 5 ratio. Yeah, it matters that our president is often part of that "proud" 5 of my guesstimate, but there just isn't any room here for moral equivalency. The left has a serious hatred and defamation problem.
BTW, if Rappaport gets his wish, we actually will begin to have something to quantify: guilty verdicts and settlements.

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Carl Eric Scott
on June 22, 2018 at 13:40:23 pm

You’re really smarter than this, nobodyreally.

Uh … no, I’m really not.

First, I’m so stupid that I'm prone to confirmation bias, seeing evidence what whatever point of view I begin with. Thus, I strive to refrain from drawing conclusions on topics that seem especially prone to confirmation bias.

Second, I'm so stupid that I regard this topic as prone to confirmation bias.

So, short of awaiting guilty verdicts, can anyone identify any objective method for measuring this alleged bias?

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nobody.really
on June 22, 2018 at 14:31:13 pm

Hmmmm!

"Second, I’m so stupid that I regard this topic as prone to confirmation bias."

Well you may be so stupid (NOT) but you are a *clever* bugger, are you not?
Notice how nobody casts himself as simply one of any number of victims of "confirmation bias" and in so doing (vainly) attempts to refute Carl's contention that the predominant disposition of those hurling slander, invective and libels is decidely Leftist. After all, everyone does it or is susceptible to this vile mental deficiency, says nobody.

Yet, today comes news of the fact that Kevin McHale, former Celtic NBA great was observed at a Trump rally. Within hours, McHale was bombardred with verbal assault AND his poor wife's Twitter account was deluged with all manner of idiocy, inanities and righteous indignation against both her and her husband.

Yep, that is confirmation bias - indeed.

Anyone who is NOT ON BOARD the Progressive Assault train is to be deominzed - but it is OK for the execrable little buggers of the left to do it - well - because confirmation bias.

Give it a break and Stifle yourself, Edith.

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gabe
on June 22, 2018 at 15:02:56 pm

nobody. really: "[C]an anyone identify any objective method for measuring this alleged bias?"

gabe: "[blah blah blah]."

I'll take that as a no. Anyone else?

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nobody.really
on June 22, 2018 at 15:48:04 pm

nobody: [balh, blah, blah]"

Justice Potter Stewart:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

Jacobellis v. Ohio., 1964

Well, if it's good enough for [Stewart], then it is good enough for me. to be sung to the tune heard in Inherit the Wind (which is precisely what nobody REALLY has on offer in this instance) Ha!

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gabe
on June 22, 2018 at 17:07:02 pm

Whether this is free speech depends on whether one believes defamation constitutes part of "the freedom of speech." Roderick, do you believe that defamation does constitute freedom of speech under all circumstances? If so, then I understand your comment. If not, please explain why this defamation is freedom of speech.

Also, if one does believe that defamation is part of the freedom of speech, then why isn't theft of property also part of property rights? I mean this question genuinely, not as a rhetorical point.

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Mike Rappaport
on June 22, 2018 at 17:17:45 pm

Nobody, "There you go again" and youth is no excuse.

Defamation and impropriety are not synonymous.

1) Trump's published opinion about public figure Obama's place of birth (or anything else), even if it is false, does not constitute defamation under US law. The same would be true if your published opinions were that Trump paid prostitutes to urinate on a hotel bed in Moscow or that Trump's hotels barred Jews or that the caddies on his golf courses moved the ball to favor guests who contribute to his campaign. Thank the Left's beloved Warren Court for that state of legal affairs.
2) Accusations against unincoporated groups are not defamation, so that Trump's political opinions that the hoboes of Occupy Wall Street were "wilding" and that Muslims on 9/11 were "cheering" in New Jersey do not constitute defamation, even assuming arguendo that the accusations were false and were made with malice toward those groups.

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Pukka Luftmensch
on June 22, 2018 at 18:03:15 pm

And nobody but a man feigning the fool would seriously contend as to contemporary disagreements over public affairs, education, religion and politics that "(b)aseless character assassination seems to be a non-partisan (bi-partisan? pan-partisan? supra-partisan?) activity."

It's a Leftist playbook tactic of unbounded uncivility and immoral personal destruction aimed at cultural and political revolution.

Provocatuer, yes; dissembler, sure. But nobody's no fool.

Robert De Niro, now there's a fool feigning the bard.

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Pukka Luftmensch
on June 23, 2018 at 00:09:44 am

No, actually nobody is more akin to a "color commentator" on a sports broadcast who believes that if he inundates you with statistics on the batters performance on the third monday following a hurricane that he has informed you of something germane and meaningful to the game.

It is all so "apropos of nothing" as a commenter last week suggested.

Statistics and fury amounting to nothing!!!!

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Guttenburgs Press and Brewery
on June 23, 2018 at 02:30:58 am

I hope Messrs. Long and Rappaport will excuse this intrusion on their comments.

It seems to me that the issue raised by Mr. Long's comment is whether defamation is free speech. I believe (and I am pretty much a free speech absolutist) that the historic answer is "no." The reason (in my view) is that a person's reputation is essential to allow him to function in society and interact beneficially with his peers. An injury to his reputation might very well be as disabling to his ability to provide for himself and his family and contribute to the community as would a physical maiming. The importance of reputation is highlighted by the fact that some people commit suicide when their reputation is compromised; Aaron Burr challenged Alexander Hamilton to a duel over an allegedly defamatory remark that Hamilton made at a political gathering, The key point is that defamation results in an objective detriment to a person's social capital, and for this reason the law allows a person to protect his reputation against wrongful injury.

The reason why the law burdens speech in this particular instance is that a reputation has no existence apart from communication and therefore, speech. A person's reputation is entirely derived from what is communicated to others about that person. Since a reputation is just as vulnerable to false claims as true ones, the only way the law may proscribe the former is to allow a narrow burden on speech.

At this point I have some sympathy for Mr. Long's comment, because speech that causes a subjective injury, i.e. personal offense without objective damage to reputation, is free speech, and should remain so, even if false. There was a defamation case some time ago that turned on the question of whether calling someone a homosexual was defamatory any longer. As I remember, the court ruled that it was not, so even though the claim was highly offensive to the plaintiff, there was no objective damage to reputation.

I also disagree with Professor Rappaport's claim that "The law forces bad people to respect others." The law cannot force anyone to respect anything; it can only force people to act like they respect something , and this sham is an affront to liberty. No one should be forced to pretend that they respect someone else, whether that someone else is the president, a pundit, celebrity, cult leader, mafia Don, victim of tragedy, or internet troll. The same goes for objects: go ahead and burn that flag, but I won't fret if you accidentally set yourself ablaze.

Now here is the mischief with the SPLC. If they just wanted to say some people were hateful, then their opinion is free speech. But now the concept of "hate" has been codified, and an allegation that someone is a "hate group" or committed a "hate crime" is a specific allegation that is subject to proof. It is the difference between an assertoric proposition and a problematic proposition from Aristotelian logic. Once the terms "hate crime," "hate speech," and "hate group" become terms of art, they become candidates for defamatory speech. When they are used to marginalize persons or groups by attacking their reputation, and with the intent and effect of impairing their target's ability to participate in public life, they cause exactly the types of harm that defamation laws are intended to prevent.

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z9z99
on June 23, 2018 at 08:14:37 am

Z,

As usual, you offer some very good points. I get what you are saying, but while Prof. Rappaport's phrasing may be slightly off, my take (he can speak for himself) is he is suggesting that the law, in the interest of maintaining peace among the public, (so there isn't a duel on every street corner), coerces by threat of force (fine, etc) people to refrain from public acts of particularly disrespectful behavior that, as you rightly describe, inflicts repuational defamation. Of course, theres a big differance between forcing someone to act in a respectful manner, and forcing geniune respect.

I would go even further with SPLC. To the extent that SPLC does seem to (knowingly) perpetrate the kinds of reputational defamation you describe on a daily basis, in a manner that is widely diseminated and relied upon by third parties (i.e. MSM, organizations that rely on it as a source for making investment, employment, etc. decisions), and to the extent that the anticipated and indeed, realized, effects are monetary (increased donations), as well as defamitory, suggests a conspirtorial association organized for the purpose of operating and profiting from a criminal enterprise.

A clever and determined prosecutor might rightfully seek to go after such an organization, in a manner alledging RICO violations. Alternatives, or in conjunction, a clever group of civil attorneys may seek to advance a class-action, whether or not there is precedent or class recourse, I can't say.

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Paul Binotto
on June 23, 2018 at 12:03:57 pm

Z:

So i take it that you agree with Rappaport that "theft of property", i.e. the diminution of the property quotient attendant upon a good and honorable reputation, ought to actionable under "property rights"?

"...and this sham is an affront to liberty."

I assume that you mean to say that to "compel" one to *express* respect for another, whose behavior, beliefs or practices you find repellent is an affront to liberty not the mere fact of refraining from public criticism or other defamatory speech. In short, it is the difference between "tolerance" and "embracing" the objectionable behavior.

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gabe
on June 23, 2018 at 14:21:10 pm

Paul and Gabe,

My concern is whether it is appropriate for the government to coerce a person to create the illusion of respecting someone by circumscribing speech. I am wary of this concept because I am opposed to the notion, observable in Europe, and particularly, Great Britain, that speech may be penalized if it creates social "discord" or "threatens social harmony." I believe that exceptions to the general rule that nearly all speech is free should be decided on a case by case basis, rather than proceeding in the opposite direction that the dissident must make a special case for his right to express his opinion. I am not sympathetic to the views, for example, that advocacy of gay marriage promotes social harmony and opposition to gay marriage threatens it, or that referring to people who enter the country in contravention of the law as "illegal" harms society, but using pleasant sounding euphemisms fills us all with grace. All of these views are discordant and potentially disruptive and none of them should be burdened. Suppressing speech, does not enhance comity and goodwill; it favors ignorance and make-believe at the the expense of liberty and those virtues that flow from it. Speech should be allowed to challenge "harmony," because sometimes that harmony is simply a euphemism for something less admirable. Thriving societies are vibrant, boisterous, contentious, and even chaotic; attempting to make them appear otherwise by force is tyrannical.

I agree with Paul. I think it is reasonable to give Professor Rappaport the benefit of the doubt and consider that his comment about respect is a difficulty in phrasing. But if you take the sentence "the law forces bad people to respect others" one must ponder "who is 'bad' and what makes them so?" Who are "others"? Obama? Trump? Louis Farrakhan? If we make simple substitutions and reword the sentence as "the law forces libertarians to respect George Soros," does it make sense? I don't wish to re-debate the Sedition Act, but words that express disdain or lack of respect for a person or institution are less of a threat to liberty than the assumption that those persons or institutions are above criticism or beyond disdain. One should be able to say that Barack Obama is a doofus and Donald Trump is a boor with equal confidence that the law will leave him unmolested.

I have to admit that I am not sure where Professor Rappaport is going with the "theft of property" thing. I don't see the analogy with speech. Maybe it's just me.

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z9z99
on June 23, 2018 at 15:29:53 pm

"The law forces bad people to respect others" is clearly merely a poor choice of words, something that law profs can do but we trial lawyers abjure because it comes at a higher price for us than for them.
The concept that I suspect Rappaport was after is simply that of deterrence.
"The law may at times and under narrow circumstances be deployed to force 'bad people' (SPLC) to avoid maliciously lying about good people" would have been the better, more accurate way to phrase the point.

Re the matter of one's reputation as part of one's property, no question about it, and that's a property right recognized in all states under the common law of defamation and protected in the constitution against government infringement, while the First Amendment tilts the balance (too far) in favor of speech and press by (too) loosely-defined "public figures" discussing public matters.

Europe and Canada, sadly, rather than restraining speech that is intended to harm the individual's property right, have focused on speech that offends hyper-sensitized group identities and the myriad metastasizing concepts of political correctness, a statist regulatory approach that both mandates the use of certain words heretofore in common parlance and precludes the use of others. Thus, on matters of free speech, as with so many other matters of public law, the statists who rule in Canada and Europe get it wrong. In the US, fortunately, so far, only the universities, run by the Left, are following the misguided approach of Canada and the Europeans. (One might forgive countries, like France, whose legal systems follow the Napoleonic Code, but the UK and Canada have the legal heritage to know better.

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Pukka Luftmensch
on June 23, 2018 at 17:51:18 pm

Z,

Thanks for your remarks, most of which I whole-heartedly agree. And, they raise some really valuable free-speech considerations for discussion - an interesting one I recommend for you and others who may be interested below:

A recent SCOTUS case, Matal v. Tam, has drawn some respectful differencing of opinion and freindly debate. Prof. Hadley Arkes and Prof. Robert Miller offer two opposed analysis and impressions of this case's outcome; You seem to share Prof. Miller's position - to follow the exchange the links appear in order below:

Arkes: https://www.claremont.org/crb/article/conservatives-and-freedom-of-speech/

Miller: http://www.thepublicdiscourse.com/2018/05/21502/

Arkes: http://www.thepublicdiscourse.com/2018/06/21690/

It should be interesting to see if Miller shall provide his own rebuttal, I anticipate he will.

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Paul Binotto
on June 24, 2018 at 22:12:22 pm

Paul,

Thanks for the tip.

You are correct sir; I do think that Prof. Miller Miller has the better argument. But I think that this is partly because of the ground upon which Prof. Arkes has chosen to offer battle. His thesis seems to be Natural Law contains all the answers to our free speech controversies. His initial piece appears to be as much a lament of the declining influence of Natural Law Theory in Supreme Court jurisprudence as it is an argument regarding specific issues of free speech. His underlying point seems to be," if you abandon Natural Law now, what will you do when you really need it?"

I find that his specific critique of the Tam case relies on assertions that can be reasonably rejected out of hand; that his attempt at a "gotcha!" regarding use of the word "offends" falls flat, and, in my opinion, he is naive regarding the relevance of his legal arguments to the cultural conflict that is the true arena of the dispute.

Have a good rest of your weekend.

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z9z99
on June 24, 2018 at 23:58:30 pm

Z,

Thanks for following up with your impressions of this particular debate, and on the larger and very real free-speech concerns in our current social and political culture. I get where you are coming from, and where your concerns lie; And, they are not without merit.

My impression of the crux of Prof. Arkes argument is not that he disagrees necessarily with the holding in Matal, but with the moral relativistic path by which this "conservative court" arrived at it, when it could have arrived at precisely that same finding, but without resorting and conceding to relativistic reasoning, simply by adhering to the moral reasoning of Chaplinsky.

It seems an ongoing observation, and one of great concern of Prof. Arkes, is that Conservative Justices/Judges are continually arriving at decisions, even rightful decisions from a conservative's point of view, by drawing on progressive relativistic reasoning, when a common sense, "traditional" or "conservative", "natural law", or however we care to call it, understanding of moral reasoning is available, one that is less contradicting, more logical, and categorially truthful, and in so doing, they concede by adoption (unnecessarily), the very progressive philosophy which they purport to oppose and refute.

I would very much disagree that Hadley Arkes "is naïve regarding the relevance of his legal arguments to the cultural conflict that is the true arena of the dispute"; rather, it’s precisely what he sees as conservative(s)(justices/judges) killing themselves, or at least maiming themselves, in this "cultural conflict", by the types of self-inflicted wounds I describe above, which he finds so alarming.

I think rather his real concern is not that contemporary conservatives on the court are "abandon(ing) Natural Law now", but that they seem to have lost, or worse yet, never possessed an understanding of how to make the proper moral arguments in the first place (due to the legal academy that rejects natural law moral reasoning out-of-hand for the last 100 years), and that it does not bode well for the restoration of conservative jurisprudence, or more importantly, the greater right-left cultural war, if conservatives seek to counter the opposition in battle by means of using the opposition's own reasoning. That the only reasoning they (conservative justices) can seemingly draw upon is the same one they presumably oppose, suggests the war is already lost. That seems to me to be the clarion call Prof. Arkes has been for so long now, expending so much of his time, energy and words.

Great discussion, thanks for engaging in it with me!

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Paul Binotto
on June 25, 2018 at 01:58:18 am

Paul,

Here's why I think Arkes is naive (and I first read him about thirty years ago in Crisis magazine):

What Arkes refers to as moral relativism is really an epiphenomenon of a deeper malignancy. It began among certain morbid philosophers and was given a wider hearing in the ruins of the World Wars. It morphed into a moral skepticism that asked, with the availability of birth control, abortion, recreational drugs, and technological sophistication, whether traditional morality was necessary, or perhaps even harmful. Now human beings are tool users. Certain sociopathic and opportunistic demagogues made use of this skepticism and attacked traditional morality, claiming that it was limiting, oppressive, outdated and. if only the right people and the right ideas were given power a new era of peace and happiness would follow. What resulted was not moral relativism, but moral rejectionism.

At the end of World War Two, the United States found itself in a period of unprecedented affluence (nobody,really has explained why many times). What we had was a metaphorical Eden, with a metaphorical tree and a metaphorical serpent, and here is what the inhabitants became aware of when they ate of the forbidden fruit: Narcissists have no need for morals.

So now we have a culture, not of moral relativism, but of narcissism. People expect their subjective feelings to be the concern of everyone; they demand that their delusions be treated as real by everyone else; they expect praise for pointless gestures and otiose virtue signalling. (Thanks to Prof. McGinnis for his recent use of the word "otiose.") They expect that everyone cares about their latest inane tweet or social media post. They demand that everyone else, in Gabe's word, "embrace" their self absorbed indulgence. But now comes expulsion from the Garden.

I used to tell my football players that if you earn respect you will end up with self respect and if you demand respect you will end up with self pity. Now I will add self loathing. During the great times we could give our libertine dalliances a veneer of philosophical credibility by calling our moral neglect "relativism," but in fact it was soft core nihilism, and most importantly obliviousness. We have been oblivious to the misery that self absorption and narcissism are leaving in their wake. This doesn't apply to everyone of course, but to sizable number of people who are eventually left aimless, despairing, and desperate to find meaning. The culture becomes one of a failed experiment.

I disagree somewhat with Professor Arkes regarding the role of Natural Law. I think there is a Natural Law that should be taught at all levels of education in every segment of society. The tenets of that Law include:

No one cares about your feelings;
If you think of yourself as a victim, someone will decide your future for you, without regard to what is best for you;
The only enduring reputation you will have depends solely on how you treat other people;
You don't get to tell other people what should be important to them and in what order;
If you are disabled by hearing things that make you uncomfortable, there is something wrong with you;
No person is ordinary. Stop obsessing about yourself and do something meaningful for someone else;
The world doesn't care if you succeed or not;
It's usually not someone else's fault; and
It;s not about you.

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z9z99
on June 25, 2018 at 10:38:08 am

Z

Beautifully and eloquently put - and, I do not see a word in your explanation here that I disagree with, (and while he can speak for himself), from what I know about Prof. Arkes, having read him closely, and listened to him speak, and from having had on rare occasion, the privilege of personal conversation with him, and more frequent exchanged correspondence, nor a word for which I would expect him to be in significant disagreement; although I think he may date its emergence slightly earlier.

We need not necessarily argue over the proper nomenclature when the diagnosis is the same; what is moral relativism, if not a philosophical (and, as you rightly suggest, a politically motivated) rejection that moral truths exist, or can be known, and differentiated? How is declaring “Truth” dead really any different than “God is dead”?

And, the effects, as you so aptly identify them, have very much been not at all utopian nirvana, but untamed nature, unbridled narcissism, and unhinged neurosis. It might even be properly characterized as pre-natured, or rather, de-natured, as indeed, even in, especially in, the so-called “state of nature”, Natural Law not only (pre-) existed, it was acknowledged, and practiced.

That Arkes has been decrying these dangers for thirty-years until now they have finally come to pass, in no way casts negative judgement on the rightness of his assertion and prescription, but rather to the obstinance and arrogance of an academy that is convinced (even now in the midst of its own destruction), it knows better than its forbearers, the conditions of human affairs.

Under such conditions as you describe, we may seek, as protection against this tyranny of this de-natured madness, to wall the utopiacs in, (or out), by constructing it with stone quarried from the First Amendment, but mortared with sands and cement of moral relativism/rejectionism, as Matal seems wanting to do.

But where and what does that leave us? Such a wall is only as strong as the joints that bind it, and while it may for a time, keep the inmates sufficiently corralled, they will remain so only as long as the mortar can withstand the forces acting upon the weaknesses of its own inherent deficiencies. It’s only a matter of time before, out of the dust and rubble, not changed in wit or reason, except that now they are more emboldened than before, by walls seemingly unable to contain them, and stronger in their convictions, now tempered by resentment, for having been confined in the first-place, that they reemerge into society, also changed neither in wit nor reason, but confined itself within a lulling unawares of a false sense of security.

Even if by some extraordinary miracle, the walls should somehow manage to withstand long enough to outlast its current generation of inmates, without some change and recovery of first principles on the outside, there will always be another generation of inmates to replace those that came before.

To sum-up my point, I think what I understand Prof. Arkes to be merely saying is that if Conservatives indeed have the superior philosophy and proper prescription for governance, they should start by demonstrating it; by making the right arguments, making them better, and making them boldly, unabashedly, and more convincingly, in a manner that will not only serve to (temporarily) corral those with opposing philosophies whom they perceive to be posing a threat to the Constitution and America’s particular brand of Republican Democracy, but in a manner that is most apt to change direction by changing minds, or at least clearly lays out the red-line to which conservative will not cross and intend by every measure, to defend.

In other words, the place to start is by declaring truth to power, nothing less will do, nothing less did our country’s founders declare to King George.

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Paul Binotto
on June 25, 2018 at 17:57:41 pm

Trump’s published opinion about public figure Obama’s place of birth (or anything else), even if it is false, does not constitute defamation under US law.

Under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a public figure can maintain a defamation claim even against a newspaper if the defendant published disparaging statements "with knowledge that they are false or in reckless disregard of their truth or falsity." It is far from clear to me that Trump’s statements about Obama’s birth wouldn’t fall within one category or the other—even assuming we granted Trump the same legal protections as a newspaper.

The same would be true if your published opinions were that Trump paid prostitutes to urinate on a hotel bed in Moscow or that Trump’s hotels barred Jews or that the caddies on his golf courses moved the ball to favor guests who contribute to his campaign.

Likewise, I don’t know that Trump couldn’t sue for defamation on any of those grounds. Of course, to prevail, Trump would need to persuade a jury that, at a minimum, the statements were untrue. This is a rather more difficult proposition than demonstrating someone’s citizenship.

Stormy Daniels is arguably a public figure, yet that status has not barred her from bringing a defamation suit against Trump for claiming that she has lied about their affair. Again, she will bear the burden of demonstrating, at a minimum, that Trump’s statements were untrue. But there are about 130,000 reasons to believe her side of the story.

Accusations against unincorporated groups are not defamation….

That may be true—although Beauharnais v. Illinois, 343 U.S. 250 (1952), has never been explicitly overturned.

That said, what’s your point? That liberals are especially prone to engage in individual defamation, whereas conservatives are especially prone to group defamation? Would that be anything to be proud of?

Trump’s political opinions that the hoboes of Occupy Wall Street were “wilding” ….

I Googled “hobos Occupy Wall Street wilding” and got pretty much nothing. I can't figure out what you’re talking about.

In contrast, if you Google “Trump wilding” you’ll find a plethora of information about how five specific people of color were accused of beating (“wilding”) a white female jogger in Central Park nearly to death; how Trump took out a full-page ad in the New York Times calling for the death penalty; how another man confessed, reported details that were previously unknown to the public, and had DNA that matched the DNA from the crime scene; how the falsely-accused Central Park Five won a $41 million verdict against the City of New York; and how Trump, as late as October 2016, continued to claim that the Central Park Five were guilty.

Now, here’s a thought to ponder: Maybe you’re not omniscient. Maybe, like all your fellow mortals, your knowledge of the world is influenced by the media you choose to consume. And maybe you just happen to choose media that skews to one point of view or another—say, media that neglects to mention that Donald Trump, in the middle of his race for President, famously accused five specific individuals of attempted murder after they had been exonerated.
And if you were to draw such a conclusion, you might exercise greater caution about making generalizations about liberals and conservatives. You might even begin consulting evidence before drawing conclusions—or, at a minimum, checking to see if your conclusions conform to the evidence.

Alternative, as gabe is always happy to attest, you might not. Facts are not everybody's cup of tea. That's why we have Fox News and Breitbart and Limbaugh--media where no one would ever defame anyone else, I'm sure.

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nobody.really
on July 16, 2018 at 07:49:42 am

Although belatedly, I'd like to supplement nobody.really's response to Pukka Luftmensch. I intend to dispel some misconceptions about U.S. defamation law. At the time this debate was taking place here, I had just started drafting my Reply Brief in the SCOTUS for one of my defamation cases [1].

1. "Public opinion about [...] Obama's place of birth".
Obama could have viably sued for defamation if (1) a false allegation about his birthplace were one significant factor precluding him from becoming president, and/or (2) the law considered it a "serious or infamous crime" to serve (or attempt thereto) as president under false pretenses of being born a U.S. citizen.

Simply framing a false statement as if it were an "opinion" does not preempt liability for defamation, because "One may be libeled by implication and innuendo quite as easily as by direct affirmation", Frinzi v. Hanson, 30 Wis.2d 271, 277 (1966). See also Milkovich v. Lorain Journal Co, 497 U.S. 1, 19 (1990) ("the statement 'In my opinion Jones is a liar,' can cause as much damage to reputation as the statement 'Jones is a liar' [...] '[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think' ").

2. About "paying prostitutes to urinate on a hotel bed in Moscow".
Trump might have a valid claim of defamation because falsely imputing to him an act of moral turpitude is recognized as being defamatory per se (that is, regardless of the context), where damages are presumed and therefore don't need to be proved. It is legally and jurisdictionally irrelevant that a falsely imputed act(s) is said to have occurred outside the U.S.

[1] https://supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1576.html

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Iñaki Viggers

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