Group libel- what is fact and what is opinion

Thu Mar 8 07:43:18 PST 2007

Milkovich and Masson are about all we have from the Supreme Court on the fact/opinion divide, and they provide far from satisfactory guidance for this discussion.  Still, they make this much clear -- we do not care about the speaker's subjective intent, we only care about how a reasonable listener would construe a statement.  To reject a defamation claim as a matter of law on the Christ killer charge, one would have to say that a jury is obligated to construe the charge as an acknowledging that the Jews, or at least those alive today, are not actually complicit in the death of Christ, they are in fact entirely innocent, but they should be punished and scorned anyway.  I do not think that is the only reasonable interpretation of the charge.  How else could it be interpreted?  That Jews should be condemned because they share a religion with Christ's persecutors?  That can't be the only correct interpretation; after all, Jews also share a religion with Jesus.  That Jews should be condemned because they have not accepted Christ as their savior?  That can't be the only correct interpretation either; the charge is not made against other non-Christians.  I submit that one reasonable interpretation is that all Jews, in their hearts, approve of the death of Christ, that we all were somehow in the crowd that condemned Jesus to death.  The complete lack of factual support for that charge surely does not convert it into a protected opinion, any more than one who organized a boycott of Muslim-owned businesses based on the charge that all Muslims approve of the 9/11 attacks could claim a First Amendment defense on ground of protected opinion, or I could claim a First Amendment defense for accusing a colleague of being a pedophile if, when pressed for supporting evidence, I claimed that my support for the charge was what I saw in a dream.  The law of defamation has long experience with charges of wrongdoing, and they have always been treated as matters of fact.  Surely a charge of complicity in murder -- especially the most heinous murder in western history -- does not acquire protection as an "opinion" merely because the charge lacks rational support.

All that said, I concede that my account of the fact/opinion divide is no more compelling than Professor Volokh's, and maybe less so.  Yet, I am confident that if this issue is litigated before real juries and judges, my view will prevail.  If it reaches the Supreme Court, I am similarly confident that the Court will continue its headlong flight from R.A.V.  Why?  Because, as they say, a page of history is worth of volume of logic.  If the Christ killer charge cannot be interpreted as alleging any actual facts about living Jews, why has it caused so many of them so much misery?

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 3/7/2007 11:39 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Group libel- what is fact and what is opinion

        Prof. Rosenthal:  Might you clarify briefly how it is that a
jury could reasonably conclude that an allegation that "Jews are Christ
killers" would be reasonably understood by listeners to mean "that those
Jews that are alive today, ALL OF THEM, are IN FACT responsible for the
death of Jesus Christ"?

        I take it that you are *not* saying that the statement would be
interpreted as saying that Jews today bear some sort of moral or
theological guilt for what their ancestors allegedly did or did not do.
That would obviously be a statement of opinion, and I take it that
you're specifically trying to disclaim that interpretation with the "IN
FACT."  I assume that you mean by "IN FACT" that reasonable listeners
would understand that today's Jews have actually caused the death of
Jesus Christ the normal way that people are said to cause others' deaths
(by killing them, by failing to stop their killing, and so on).

        But -- and here I'm wondering whether I must be misunderstanding
your point -- Jesus Christ is said to have died nearly 2000 years ago.
It is physically impossible, in a way that all reasonable listeners
know, for someone living today to actually cause the death of someone
who died nearly 2000 years ago.  Because of this, it seems to me, no
reasonable listener would infer that the speaker meant to make this
physically impossible factual claim.  At most, they might in some
circumstances assume that the speaker is asserting some miraculous
causation, though that I take it itself draws the statement out of the
realm of the factually provable or disprovable, and thus out of the
realm of libel.  But wouldn't it be much more likely that a reasonable
listener would infer that the speaker isn't making the factual (but
utterly impossible) claim "today's Jews caused the death of someone 2000
years ago," but is rather expressing the moral opinion that "today's
Jews bear the moral or theological responsibility for their forbears'
actions 2000 years ago"?

        There's nothing whatever in Milkovich, it seems to me, that
would lead to any different result.  In fact, the Court in Milkovich
reaffirmed that "the Bresler-Letter Carriers-Falwell line of cases
provide protection for statements that cannot 'reasonably [be]
interpreted as stating actual facts" about an individual.'"  That is
precisely what happened in that line of cases:  Statements were
interpreted as a reasonable person would understand them, and literal
but implausible readings of the statements were rejected.

        We can come up with any number of other examples of this basic
point.  Just to give one, if a black speaker says "whites are
responsible for slavery in America," could he be found guilty of libel
on the grounds that the statement means "that those whites that are
alive today, ALL OF THEM, are IN FACT responsible for slavery in
America" -- slavery that ended decades before the oldest of today's
whites were born?  Of course not.  The only way this can be done is by
adopting a principle that libel law has quite rightly rejected: a
presumption that a statement is libelous if any literal interpretation
is false and defamatory, including ones that are so clearly literally
false as to be entirely implausible or even physically impossible (and
thus extremely unlikely to actually hurt someone's reputation, since
listeners will not actually adopt those interpretations).  Under such a
standard, no speaker can be safe, because there can always be some
statement that he makes that can be distorted this way.

        Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Wednesday, March 07, 2007 5:13 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Group libel- what is fact and what is opinion
>
> I hesitate to disagree with the esteemed Professor Volokh on
> any issue of First Amendment law, but here I must.  It may
> well be that some Jews who lived two millenia ago were
> involved in the killing of Christ.  I would go so far as to
> say that the historical record on this point is such that a
> claim along these lines could not plausibly be characterized
> as evincing reckless disregard for the truth.  But a jury
> applying the fact/opinion distinction articulated in
> Milkovich, in my judgment, could properly conclude that those
> who say that "Jews are Christ killers" are not trying to
> express an opinion about how a historical event is to be
> interpreted, but instead are trying to assert that those Jews
> that are alive today, ALL OF THEM, are IN FACT responsible
> for the death of Jesus Christ.  A jury could properly
> conclude that the speaker intended this as a factual
> assertion about who is actually responsible for the death of
> Christ and is made with malice -- after all, those who make
> this charge either do not really believe that anyone alive
> today killed Christ, or was somehow complicit in his death,
> but instead make the charge because it is all too frequently
> an effective means of provoking hatred against the Jews.  The
> power of the charge is not merely in the opinion that may
> follow it (because of their culpability, we should kill the
> Jews, seize their property, etc.), but because the opinion is
> JUSTIFIED by an asserted yet entirely false connection
> between living Jews and a historical event.  To the extent
> that the fact/opinion distinction is less than clear (and it
> is), I say that this charge should be deemed unprotected
> because it is no part of any "marketplace of ideas" that
> merits protection, whether called fighting words or group
> libel.  Whatever is meant by this charge, it is never used as
> an invitation to honest debate.  As Justice Jackson argued in
> Kunz, the Christ-killer allegations "are always, and in every
> context, insults which do not spring from reason and can be
> answered by none. Their historical associations with violence
> are well understood, both by those who hurl and those who are
> struck by these missiles."  To my knowledge, no Member of the
> Court has ever disagreed with this characterization.
> 
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Wed 3/7/2007 4:02 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Group libel- what is fact and what is opinion
>
>
>
>         Well, note what *is* clearly opinion about "all Jews
> are Christ-Killers."  The defamatory portion, "Jews are
> morally responsible for Christ's death," is opinion.  The
> view that Jews at the time were morally responsible, on which
> the defamatory portion, is opinion.
>
>         The one item that might be characterized as fact is
> the premise underlying Jews' moral responsibility -- the
> theory that Jewish leaders were involved in Christ's death,
> or that the Jewish crowd could have saved him and didn't. 
> (Cf. John 19:12:  "And from thenceforth Pilate sought to
> release him: but the Jews cried out, saying, If thou let this
> man go, thou art not Caesar's friend: whosoever maketh
> himself a king speaketh against Caesar.")  This item is not
> even defamatory of modern-day Jews, since it's an allegation
> of the conduct of others 2000 years ago.  But it's not even
> clear to me that claims about such events 2000 years ago can
> be said to be claims of fact; given the inaccessibility of
> the facts to modern factfinding, they seem to be opinion,
> just as claims about how the universe was created (including
> purely physical claims) are opinion.  There is an underlying
> fact about what happened; but assertions about it must, I
> think, be understood as opinion.
>
>         In any case, it is not the case, I think, that
> "whether 'christ killers' is a claim of fact or not is a
> question of fact," nor is it "far from constitutional law": 
> It is a question of how the statement is characterized;
> clearly much of the assertion, including its defamatory
> portions, is opinion, and the one component that is not
> clearly fact is still, I think, likely a statement of opinion
> about who said what 2000 years ago.  Nor is it correct to say
> "I don't see how calling Jews 'Christ killers' *isn't* a
> statement of fact!  It is a factual claim about who is
> responsible for the death of  Jesus, not a 'mere' opinion."
> Calling Jews "Christ killers" is mostly a statement of
> opinion about moral responsibility, with a possible grain of
> (not itself defamatory) factual assertion -- though I think
> more properly considered opinion about an unknowable set of
> facts -- about what some people said 2000 years ago.
>
>         Eugene
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