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

[Volokh, Eugene]

 	"Context controls" strikes me as unhelpful here as saying that
the test should be "context controls" for when alleged incitement is
protected, or falsehood is protected, or offensive speech (e.g.,
flagburning, the speech in Hustler, etc.) is protected.  Obviously
context is relevant in the narrow sense that any test -- such as the
Brandenburg test -- will make some facts relevant, and those facts have
to be understood in context (e.g., context affects what the speaker
probably intended, and what was likely to happen).  But the important
point is to identify a test that is more specific than "context
controls."

	Likewise, to say "some repetition can be harassment," and to
point to either metaphorical or extraordinary rare circumstances of
people having "been hounded to death with repeated imprecations," isn't
very helpful.  Hostile environment harassment law (understandably)
doesn't require people being hounded to death.  Conversely, picketing
and other repeated speech is generally constitutionally protected even
when it is seen every day, while hostile environment harassment can be
based on much rarer events.

	So if repetition is to be part of the analysis, it seems to me
we need to have a test that describes when repeated speech becomes
constitutionally unprotected (not because it becomes "conduct," but
because for some reason we conclude it's unprotected speech).  "Context
controls" and "some repetition can be harassment" doesn't get us far.

	Eugene

> -----Original Message-----
> From: Robert Sheridan [mailto:rs at robertsheridan.com] 
> Sent: Wednesday, October 15, 2008 10:35 AM
> To: Volokh, Eugene
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: The return of criminal libel, with truth not 
> being a defense?
> 
> No doubt, but some repetition can be harassment.  People have 
> been hounded to death with repeated imprecations.  My guess 
> is that context controls.
> 
> rs
> sfls
> 
> 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 polisci.wisc.edu]
> >> Sent: Wednesday, October 15, 2008 7:19 AM
> >> To: Volokh, Eugene
> >> Cc: CONLAWPROF at lists.ucla.edu
> >> 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 TRADITIONAL 
> >> DEFAMATION LAWS SHOULD APPLY TO INTERNET BLOGS,
> >> 55 Am. U.L. Rev. 1447 (2006).
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