Public figures prohibited from saying certain things?

[Scarberry, Mark]

With regard to the "of and concerning" requirement, I think Atty General
Ashcroft pretty clearly singled out William Safire when the AG criticized
the description of military tribunals as "kangaroo courts."

But I think Eugene is right that the AG's statements were opinion--in fact,
core 1st amendment expression of political opinion--for which a libel claim
could not constitutionally be maintained, even by nonpublic figures.

I recognize that core 1st amendment expressions may themselves undermine
some of the values associated with the 1st amendment. For example, one might
say that in the future all criticism of the government ought to be made
punishable by death.  Such a statement ordinarily would be protected
political speech under Brandenburg, even though it might be thought to
undermine First Amendment values. (Such a statement might in fact enhance
First Amendment values by causing more of us to express our support for free
speech and to work hard to maintain that right.)
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, December 13, 2001 9:11 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Public figures prohibited from saying certain things?



        Well, I'd love to hear what others think about it, but I think that
any libel claim here would be a sure loser:  Courts would interpret
Ashcroft's statement as not a factual allegation about his critics' evil
intent, but rather as a statement of opinion based on the known facts --
that people's complaints about the government "shredding the Constitution"
have the effect of aiding the terrorists.  Whatever the status of the
speaker or the people whom the speaker is criticizing, I see no way that a
court would accept a libel claim here.  But if anyone can point me to some
contrary caselaw, I'd love to hear it.

        Also, under traditional libel principles, the statement is almost
certainly nonspecific enough that no plaintiff could say that it defamed him
in particular.  This is the "of and concerning" requirement, which NYT v.
Sullivan said is constitutionally mandated -- I'm not sure that that's
right, but that's what the Court held -- but is in any event a pretty
important substantive tort law principle.  And besides this, the lack of
specific focus makes it even more likely that the statement would be seen as
opinion, since people would realize that Ashcroft can't be making a factual
allegation about the intentions of every critic of the administration's
proposals.  To borrow Prof. Hoffman's own example, calling X a Communist may
be libel; but saying "Those who support law Y [assuming this is a largish
group] are aiding Communists" would definitely not be.

        The one possible exception to this lack of personal focus is Senator
Leahy, since it seems very likely that Ashcroft's reference to "shredding
the Constitution" was a specific allusion to Leahy's statements about the
tribunals that "We don't protect ourselves by bending or even shredding our
Constitution" (ABC News, Nov. 18, 2001).  Leahy says Ashcroft's programs are
shredding the constitution and letting the terrorists win; Ashcroft implies
that Leahy's statements are what is aiding the terrorists.  Ah, life in
Washington.  But even Leahy, I think, would have no viable libel claim, for
reasons I mentioned in the first paragraph.

        Finally, apropos one of the other hypos that was raised, here's the
Gore statement (said in 1998, while he was VP) criticizing critics of
affirmative action:  "I've heard the critics of affirmative action.  They
talk about a color-blind society.  Give me a break!  Hel-lo!  They use their
'color-blind' the way duck hunters use their duck blind.  They hide behind
it and hope the ducks won't figure out what they're up to."  I'm certain
that if a critic of affirmative action sued Gore for defamation, on the
theory that Gore's statements imply that all such critics are racists and
are using color-blindness rhetoric to delude people into not recognizing
this, he would and should lose:  Gore's statement is opinion, not fact.
Likewise as to the Ashcroft statement.

        Eugene

        -----Original Message-----
From:   Daniel Hoffman [SMTP:guayiya at BELLSOUTH.NET]
Sent:   Wednesday, December 12, 2001 8:34 PM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: Public figures prohibited from saying certain things?

        Is it really that different from calling someone a Communist--which
at least some courts held to be libel per se?

         Ashcroft's statement would traditionally not be seen as prima facie
libelous, even without the NYT v. Sullivan doctrine; << File: Card for
Daniel Hoffman >>

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