Group libel- what is fact and what is opinion
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Mar 8 10:37:38 PST 2007
1. I still wonder how Prof. Rosenthal would deal with "whites
are responsible for slavery in America," or "Bush=Hitler"? Actionable
libel, because they could be interpreted as "those whites that are alive
today, ALL OF THEM, are IN FACT responsible for slavery in America," or
"Bush IN FACT IS Hitler, who didn't die in his bunker but remains alive
as a very well-preserved 117-year-old"? Wouldn't the conclusion
instead be that no reasonable could interpret the statements as making a
patently physically impossible claim? And if that's so, wouldn't the
same be true as to interpreting "Jews are Christ-killers" as "those Jews
that are alive today, ALL OF THEM, are IN FACT responsible for
[physically committing an act 1900 years before their birth]"?
2. Actually, Milkovich and Masson are not about all we have
from the Supreme Court on the fact/opinion divide. Instead, we have
cases that squarely deal with the issue, and that Milkovich expressly
endorsed: Bresler, Letter Carriers, and in some measure Falwell. Let's
just see what Milkovich itself has to say about it:
"We have also recognized constitutional limits on the type of
speech which may be the subject of state defamation actions. In
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6
(1970), a real estate developer had engaged in negotiations with a local
city council for a zoning variance on certain of his land, while
simultaneously negotiating with the city on other land the city wished
to purchase from him. A local newspaper published certain articles
stating that some people had characterized the developer's negotiating
position as 'blackmail,' and the developer sued for libel. Rejecting a
contention that liability could be premised on the notion that the word
'blackmail' implied the developer had committed the actual crime of
blackmail, we held that the imposition of liability on such a basis was
constitutionally impermissible -- that as a matter of constitutional
law, the word 'blackmail' in these circumstances was not slander when
spoken, and not libel when reported in the Greenbelt News Review.
Noting that the published reports 'were accurate and full,' the Court
reasoned that even the most careless reader must have perceived that the
word was no more than rhetorical hyperbole, a vigorous epithet used by
those who considered [the developer's] negotiating position extremely
unreasonable. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46,
50 (1988) (First Amendment precluded recovery under state emotional
distress action for ad parody which 'could not reasonably have been
interpreted as stating actual facts about the public figure involved');
Letter Carriers v. Austin, 418 U.S. 264, 284 -286 (1974) (use of the
word 'traitor' in literary definition of a union 'scab' not basis for a
defamation action under federal labor law, since used 'in a loose,
figurative sense' and was 'merely rhetorical hyperbole, a lusty and
imaginative expression of the contempt felt by union members')."
Now note that it was at least *theoretically possible* that
Bresler actually committed the crime of blackmail, or that the
strikebreakers committed the crime of treason. Such crimes occasionally
happen. But the Court was not for a moment detained by that
possibility: It was clear that reasonable readers would not understand
the statements that way.
How can it conceivably be the case that the Court would
interpret "Jews are Christ-killers" -- a phrase that has a perfectly
logically sensible (though morally reprehensible) interpretation as
"Jews today bear their ancestors' moral guilt for Christ's death" -- as
the *physically impossible* assertion that Jews today, in violation of
all laws of physics, personally killed (or help kill) Jesus Christ 1900
years before their birth? How could this be remotely reconciled with
Bresler, Letter Carriers, or the endorsement of those cases in
Milkovich?
3. Nor does Prof. Rosenthal's question, "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?," undermine this
analysis. As Howard Wasserman pointed out, the charge was harmful
because of its moral and theological claim (contemptible, but opinion),
not because of its factual assertion. Let me flip the question around:
Can it possibly be that the charge has caused so much misery to Jews
because anti-Semites concluded that Jews born in, say, 1850, had in
defiance of the laws of physics personally participated in the killing
of Jesus over 1800 years before their births? Anti-Semites are
genereally fools, but even they are not *that* foolish.
4. Finally, note that this is about considerably more than just
the constitutional status of one particular insult. First, if Prof.
Rosenthal's approach -- under which a statement can be found false
because of an interpretation that makes the statement *patently
physically impossible* -- is adopted, then no speaker can be safe,
because all of us at some point say something that in context is
obviously open or a true statement of fact, but that when interpreted
with maximum antipathy (or whatever is the opposite of "interpretive
charity") can be twisted into a false statement of fact. That's what
the examples in my item 1 aim to show, but one can introduced many
others. And in fact this is precisely what happened in some of the
Sedition Act cases: Though the ostensibly narrow Act was facially
limited only to false and malicious assertions, judges who were hostile
to the speakers twisted their words into meanings that could be said to
be factually false, rather than accepting the reasonable reader's likely
interpretation, which would have made the statements opinion.
Second, this exchange, I think, further demonstrates why I worry
that supposedly "innocent" and narrow proposals -- why not just punish
libelous false statements of fact, just said about groups as well as
individuals? -- will end up growing broader and broader. There have
already on this thread been calls to relax the subjective actual malice
standard in group libel cases. Now we're seeing a change of the
interpretive rules away from the well-established Bresler/Letter
Carriers/Falwell/Milkovich mold. What next?
Eugene
> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Thursday, March 08, 2007 7:43 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Group libel- what is fact and what is opinion
>
> 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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