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

Volokh, Eugene VOLOKH at
Wed Oct 15 09:36:12 PDT 2008

 	Whatever may be the justification for hostile environment
harassment, I don't think it can be supported on the theory that
"repetition and intent" is a "conduct element that separates it from
simple speech."

	To begin with, hostile environment harassment doesn't require
intent.  Speech can constitute workplace harassment if it has the
purpose *or effect* of creating a hostile, abusive, or offensive
environment.  Presumably the same is true as to educational harassment,
public accommodations harassment, and housing harassment.  And indeed
the cases do not require any showing of intent to harass.

	On top of that, surely repetition (which does tend to be
required by hostile environment harassment law, though a dozen incidents
over a couple of years would generally suffice) can't be "a conduct
element that separates [the behavior] from speech."  If a newspaper
publishes material every day for a year, that's repetitive behavior, but
I take it we'd say that it's pure speech.  If picketers picket a
building every day, that's repetitive behavior, but to the extent that
picketing has "a conduct element," it stems from the physical presence
of the picketers and any possible obstructive or threatening effect it
would have, and not the fact that the picketers come by every day.  A
billboard is effectively "repetiti[ve]," in that it can be seen every
day (I take it that we wouldn't say that a single billboard is
nonrepetitive, but a new billboard popping up over town each month and
then coming down in a month is repetitive), but that doesn't give the
billboard "a conduct element that separates it from simple speech."

	Likewise, whatever would be the right rule as to Web pages that
say offensive and distressing things about others (setting aside suits
or prosecutions for libel, which focus not on "conduct" but on the
falsity of the speech), I don't think it's helpful to ask whether one
Web page is "repetitive" or not, and I don't think it's right to have
one rule when I put up a single blog post criticizing X than when I put
up a post a month criticizing X.  All of these are speech, and if they
are to be found to be unprotected speech, it has to be for some reason
other than repetition.


> -----Original Message-----
> From: Howard Schweber [mailto:schweber at] 
> Sent: Wednesday, October 15, 2008 7:19 AM
> To: Volokh, Eugene
> Subject: Re: The return of criminal libel, with truth not 
> being a defense?
> 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 
> 55 Am. U.L. Rev. 1447 (2006).

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