Public figures prohibited from saying certain things?

[Volokh, Eugene]

        I appreciate Mark's correction as to kangaroo courts -- indeed,
Safire as well as Leahy might say that they were implicitly referred to in
the quote, and that the quote is therefore of and concering them.  But I'm
also glad that we agree that the statements are opinion and thus not the
proper basis for a libel lawsuit.

        Eugene

> -----Original Message-----
> From: Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Thursday, December 13, 2001 11:09 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Public figures prohibited from saying certain things?
>
> 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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