Group libel- what is fact and what is opinion
Frank Cross
crossf at mail.utexas.edu
Thu Mar 8 16:38:26 PST 2007
Lawrence Rosenthal's reference to history is illuminating but not
necessarily supportive of proscribing hate speech. What would have become
of a dispute over a claim that integration caused disease. For a Southern
jury, I'm pretty sure they'd find that factually ok. What of black claims
of equality to whites? For much of our history this was regarded as
scientifically false. Even some of the more progressive white leaders
believed that blacks were surely inferior. Hate speech limits could turn
on their maker
At 05:54 PM 3/8/2007, Rosenthal, Lawrence wrote:
>It is perhaps worth noting that the claims that Professor Volokh fears
>would be unprotected under a revised law of group libel (or intentional
>infliction of emotional distress) are ones that presumably everyone on
>this list would find perfectly ridiculous and no meaningful contribution
>to the marketplace of ideas. For just that reason, list members may agree
>with Professor Volokh that no one could think that the kind of statements
>that concern me assert "facts." Unfortunately, however, history teaches
>that these arguments can do great mischief when made in other
>venues. Throughout history, a great many people have accepted as factual
>a wealth of derogatory claims about various racial and ethnic
>minorities. Thurgood Marshall was fond of pointing out that
>segregationists frequently argued that integration posed a health hazard
>because blacks carried communicable diseases -- although they never seemed
>to apply this insight to their own servants. Perhaps a jury is the better
>judge of how such statements are likely to be construed than are a bunch
>of law professors.
>
>To be sure, one can take an entirely principled absolutist position toward
>the First Amendment. But our law of the First Amendment has never done
>so. If we are to hew in particular to Chaplinsky's conclusion that some
>types of expression so lacking in social value as to lack protection, then
>I see no reason to grant protection to claims that all Jews are culpable
>for Christ's killing because of their malignant hearts, etc.
>
>I make no claim that the law of torts could somehow prevent another
>Holocaust. My claim is more modest -- if we take the financial incentive
>that the Ann Coulters of the world currently have to race to the bottom,
>perhaps the quality of our deliberative democracy might rise a bit. If
>that is right, then perhaps First Amendment pragmatism might support some
>form of financial liability on a properly supported finding of malice,
>based on statements that a jury finds are reasonably construed as falsely
>casting aspersions on the character or conduct of an entire class.
>
>Please do not construe my prolonging (no doubt unreasonably) the debate as
>tendentious -- it is nothing but a privilege to engage with Professor Volokh.
>
>Larry Rosenthal
>Chapman University School of Law
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Thu 3/8/2007 1:44 PM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Group libel- what is fact and what is opinion
>
>
>
> Wait a second: Now the claim seems quite different -- "Jews are
>Christ-killers" is "that those Jews that are alive today, ALL OF THEM,
>are IN FACT responsible for the death of Jesus Christ," but rather that
>"all Jews endorse Jesus's death," which I take it means "all Jews think
>that Jesus's death was good." Let's set aside the twist that in a sense
>Christians think that Jesus's death was good, because if it weren't for
>Jesus's death, Christians' sins would go unremitted and (or,
>alternatively, that Jesus's death was good because it was part of God's
>plan). Can it really be that a claim about a large group's assumed
>beliefs could form the foundation of a libel lawsuit?
>
> Consider some commonplace arguments often heard in public debate
>-- not because we're worried about the slippery slope in the abstract,
>but because a theory that allows the punishment as "group libel" of
>statements about a large group's assumed beliefs would *itself*
>authorize the punishment of these statements, with no need for further
>slippage. How about "all men are rapists," said in the sense of "most
>men want to rape women, and most/many would rape them if they thought
>they would get away with it"? "All whites are racist," said in the
>sense of "most whites harbor some considerable amount of racist
>tendencies"? "Fundamentalist Christians are anti-Semitic," said in the
>sense of "deep down inside, most fundamentalist Christians really
>dislike Jews"? "Korean-Americans dislike blacks," said in the sense of
>"most Korean-Americans harbor some racist sentiments about blacks"?
>
> I take it that under Prof. Rosenthal's model, making any of
>these statements could constitutionally expose someone to a criminal
>prosecution, or a civil lawsuit for compensatory and punitive damages.
>Can that possibly be right?
>
> It seems to me that it can't be. One could treat these
>statements as statements of opinion, because a reasonable listener would
>recognize that no speaker can have investigated the views of all or most
>Jews/men/fundamentalist Christians/Koreans; the statement must therefore
>be just the speaker's opinion, not the speaker's claim to actually know
>the facts the way facts are customarily known. When someone tells me
>"my colleague Prof. Smith is racist" and "all whites are racist," I
>interpret the two in different ways. The former suggests that the
>speaker has specific factual evidence that Prof. Smith has said or done
>something that reveals his personal racism, and is thus an assertion of
>fact. The latter suggests that the speaker is just expressing an
>opinion about what is likely going on in the heads of hundreds of
>millions of people, something on which he clearly has no factual
>knowledge.
>
> Alternatively, even if one treats these statements as factual
>assertions, they surely are factual assertions which our legal system
>shouldn't be determining the truth or falsity of. A trial about whether
>most whites harbor racist sentiments, or about whether most men really
>would rape women, or about what most Jews believe about Jesus, would, it
>seems to me, be a mockery of our factfinding process: These sorts of
>psychological generalities are just not the sort of thing that a judge
>and jury can sensibly determine.
>
> But in any event, one needn't worry about slippery slopes to be
>concerned about punishment of "Christ killer" on the theory that it is
>"group libel" it says something defamatory about most Jews' psychology
>-- once the legal system has said that such statements can form the
>basis of group libel lawsuits, we've already reached the bottom of the
>slope: There would already be a rule in place that makes all the
>statements I note above unprotected, and subject to criminal or civil
>punishment.
>
> Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Thursday, March 08, 2007 11:29 AM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: Group libel- what is fact and what is opinion
> >
> > I quite agree (as I must) that "rhetorical hyperbole" is
> > protected opinion, and that perhaps in some contexts the
> > charge of Christ killer is rhetorical hyperbole, as is, at
> > least in some contexts, the charge that Bush=Hitler or that
> > whites are responsible for slavery. But like the charge that
> > Jews are traitors, bloodsuckers, userers, etc., I believe
> > that a jury could reasonably interpret the Christ killer
> > charge as asserting a psychological reality about Jews -- all
> > Jews endorse the death of Christ. The ensuing claim of moral
> > responsibility follows from the assertion of psychogical
> > fact. History teaches that the power of the Christ-killer
> > charge is not that it rests on an argument that people should
> > be accountable for the sins of their ancestors -- an argument
> > that almost no one believes -- but instead that the
> > Christ-killer charge is too often thought to describe what
> > Jews actually believe, just as the power of the charge that
> > blacks are rapists derives from its assertion that African
> > American males are actually sexually rapacious and criminally
> > minded, and not based on the view that all African-American
> > males should be held accountable for the crimes of a few.
> > Thus, one reasonable interpretation of the charge of Christ
> > killing, treason, or usery against Jews is that it is based
> > on an assertion of fact about Jewish psychology and belief.
> > And I will happily concede that the same can be said of a
> > charge that all whites are in their hearts racists, or that
> > all Muslims support the 9/11 attacks.
> >
> > As the final paragraph of Professor Volokh's response
> > suggests, perhaps that greatest divide between he and I
> > resides in the fear of the slippery slope. He is of course
> > right to worry. I reluctantly conclude that we have no
> > choice but to trust in the wisdom of judges and juries to
> > police the fact/opinion divide, as well as the malice
> > standard, to avoid creating a law of group libel, or
> > intentional infliction of emotional distress, that produces a
> > form of ideological conformity. Creating a financial
> > incentive for people to produce greater intellectual rigor
> > and precision in their arguments -- even their racist or
> > sexist arguments -- is not such a bad thing.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Thu 3/8/2007 10:37 AM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: Group libel- what is fact and what is opinion
> >
> >
> >
> > 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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> > > >
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**********************************************************
Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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