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

Robert Sheridan rs at
Wed Oct 15 10:35:22 PDT 2008

No doubt, but some repetition can be harassment.  People have been  
hounded to death with repeated imprecations.  My guess is that context  


On Oct 15, 2008, at 9:36 AM, Volokh, Eugene wrote:

> 	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.
> 	Eugene
>> -----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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