Proposal for reinstituting group libel law

[Malla Pollack]

I hestitate to say that Eugene is wrong about libel law, but I do not think
that "sincerity" as opposed to "truth" has to be accepted as a defense
because of the cases he cites.  As for hyperbole, that turns on how a
statement would be heard -- and I, for one, find many cases (especially ones
about allegedly false advertising) overly lenient in judicially (ie not by
jury) letting statements by as "mere puffery" or hyperbole.  While group
libel will not end all, or even most, hate speech, it would hopefully deter
extreme statements clothed as fact.  In copyright (I do not know if in libel
cases), if the writer portrays x as fact, he is not allowed in later
litigation to assert that x was really fiction (to get stronger copyright
protection). 

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2007 8:56 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Proposal for reinstituting group libel law

	(1)  Is it really "quite innocent" for the law to ban even false
statements of fact about history (a category that I'm sure would never
stay limited just to Holocaust denial)?

	(2)  Under New York Times v. Sullivan and Gertz v. Robert Welch,
it seems that even false statements of fact can't be punished (as
opposed to be subject to proven compensatory damages when said
negligently about a particular private figure) if the speaker sincerely
believes them -- given the fact that many racists (and perhaps even many
Holocaust deniers) are quite sincere in their beliefs, wouldn't their
speech remain protected?

	(3)  Are there really a lot of statements out there of the sort
that "all Muslims are terrorists" (yes, including the 75-year-old
grandmother) or "all black men rape white women" (which, among other
things, would mean the rape rate has to be far higher than even the
highest estimates) that are really understood as literal statements of
fact, as opposed to hyperbole or opinion?  

	Eugene

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us] 
> Sent: Tuesday, March 06, 2007 5:47 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Proposal for reinstituting group libel law
> 
> Eugene is right that allowing group libel claims would not 
> get rid of most inflamatory opinions, but it would reach 
> claims about facts -- which should include remarks like 
> denial of the Holocost, acusations that all Muslims are 
> terrorists, that all Black Men rape White Women etc  
> 
> FYI I hate "speech codes" 
> 
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us 
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Monday, March 05, 2007 8:45 PM
> To: conlawprof at lists.ucla.edu
> Subject: Proposal for reinstituting group libel law
> 
> 	Interesting; could those who support this proposal 
> briefly explain how such "group defamation claims" would 
> work?  Would they, for instance, validate laws such as the 
> ones upheld in Beauharnais v.
> Illinois (which is generally assumed to no longer be good law 
> in the wake of New York Times v. Sullivan)?  
> 
> 	Off the top of my head, I don't quite see how a "quite innocent"
> change in the law would lead to nearly any increased scope of 
> punishment of "hate speech" (which is usually opinion rather 
> than a false statement of fact).  Could Malla or others who 
> share her views enlighten me on this?  Many thanks,
> 
> 	Eugene
> 
> 
> 
> Malla Pollack writes:
>  
> We could get some of the benefit claimed by those advocating 
> regulation of hate speech with one, quite innocent, legal 
> change - accept group defamation claims.  
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