The return of criminal libel, with truth not being a defense?

[Howard Schweber]

Laws criminalizing (or imposing civil penalties for) harassment are 
constitutional based on the idea that the harassment has a conduct 
element that separates it from simple speech.  But that conduct element 
traditionally imposes a pretty high burden.  In the employment context, 
hostile environment harassment (leave aside the quid pro quo case, which 
is obviously inapposite) requires repetition and intent.  The language 
from Harris leaves some flexibility:  "This is not, and by its nature 
cannot be, a mathematicall precise test . . . But we can say that 
whether an environment is hostile or abusive can be determined only by 
looking at all the circumstances.  These may include the frequency of 
the discriminatory conduct; its severity; whether it is physically 
threatening or humiliating, or a mere offensive utterance, and whether 
it unreasonably interferes with an employee's work performance."  
O'Connor was talking about the limits of Title VII, but the general 
analysis describes the outer bounds of First Amendment protection.

The problem is in applying this rubric to the internet.  A single 
posting may be viewed thousands of time, or it may go viral and be 
reproduced without limitation.  This danger is made particularly 
egregious by limited content provider immunity under federal law.  We 
are talking about a state law case --  is there an argument can be made 
for pre-emption?  I certainly think the federal statute was intended to 
ensure immunity for providers with the purpose of encouraging 
Facebook-style sites, and that purpose would be significantly undercut 
by liability under state law. 

The criminal libel standard is presumably governed by Gertz v Welch:  
where the victim is not a private figure, states may not impose 
liability without fault nor allow punitive damages without a 
demonstration of knowing falsehood or reckless disregard, but otherwise 
are free to devise whatever standard they like.  Eugene asks about truth 
as a defense, but of course proving "truth" in this case is nearly 
impossible (for legal purposes a criminal conviction might suffice).  
The question is not whether states must allow truth as a defense -- of 
course they must -- the question is what level of assurance of the truth 
of their accusation the person publishing the libelous statement can be 
required to have in order to escape liability.  Given the special 
dangers of internet postings, I would argue that the level should be set 
pretty high.

An accusation of molestation is a particularly virulent form of 
"rumor."  It is likely to haunt its target for the rest of his life, and 
quite likely will impair his ability to pursue a career, as employers -- 
including law firms -- nowadays routinely do web searches on applicants. 

When I talk about this with students, the uniform reaction is "no one 
believes anything they read on a blog anyway."  Ultimately, perhaps, 
employers and the rest of us have to learn to distrust anything we learn 
from a web site, but unless and until that happens I would like to see 
courts demonstrate an appreciation of the special dangers that a 
supposedly "isolated" posting can have.

There have been some discussions of these issues.  See, e.g., Susan W. 
Brenner, "Responses to Internet Victimization: Should Online Defamation 
be Criminalized?"  76 Miss. L.J. 705 (Winter 2007), and Melissa 
Troiano,  COMMENT: THE NEW JOURNALISM? WHY TRADITIONAL DEFAMATION LAWS 
SHOULD APPLY TO INTERNET BLOGS, 55 Am. U.L. Rev. 1447 (2006).


Howard Schweber
Dept. of Poli. Sci.
UW-Madison