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

[Robert Sheridan]

It seems to me that there is a difference in kind between various  
forms of denigrating speech.

Much 'political' speech is deemed protected opinion.  (I don't know  
what Mr. Ayers is thinking these days about his public demonization  
despite years of make-up work.)

In many cases, to defame someone is to reduce his/her reputation,  
hence status in the community, resulting in damages.

But there is another kind, which has the purpose, it seems, or at  
least the effect, to drive the person subjected to it from the  
community, to ostracize, to banish.

In reading about China, I see that during the Cultural Revolution, the  
Red Guards (students) and other tormenters, often targeted their  
teachers, government officials, and family members for being  
'rightist' and for somehow falling afoul of Chairman Mao's Little Red  
Book.  Those targeted were beaten and sometimes killed.  The president  
of China, Liu Shao-qui was so killed.  Imagine, the president being  
hounded (and beaten and denied medical treatment) to death.  Or they  
were sent down to the countryside for years to clean toilets and learn  
from peasants.  They were forced into self-confessional "struggle  
sessions" where they "spoke bitterness" and were then often hounded  
out of a society which traditionally valued harmony.  When the group  
congealed to sacrifice a parent or teacher, as often happened, it  
reminded me of our own culture in the West, of turning on supposed  
witches.  This still happens in Africa today.  You can say, "Well,  
that's China, but we're the U.S."  But I think that would be short- 
sighted.  The reason I think it relevant is that I don't see anything  
human as being irrelevant.  We still demonize people and try to tar  
their friends for political ends.

Denouncing someone as a child molester in any forum outside of a legal  
procedure seems of a piece with this, especially when the report is  
false or inflated.

Hounding someone to ruin him in society seems quite different than  
ordinarily protected political speech, regardless of whether there is  
an element of truth to the charge.  Magna Carta speaks to ruining a  
man in society, if recollection serves.

Since when can ordinary civilians be entitled to inflict more  
suffering than society as a group has a right to inflict, without a  
trial?

rs
sfls








On Oct 15, 2008, at 10:26 AM, Howard Schweber wrote:

> Two issues here:
>
> Can harassment be described as conduct rather than speech, or as a  
> mixed case rather than pure speech?
> In a case where we are talking about pure speech, what are the  
> justifications for its regulation?
>
>
> In responding to the answer to the former question I was merely  
> reciting what I take to be the current state of the doctrine.  One  
> might think of harassment as a form of expressive conduct, for  
> example, and make an analogy to Scalia's distinction between laws  
> regulating expressive conduct that are directed at the expressive  
> part versus those directed at the conduct part of whatever is being  
> regulated.  I understand Eugene's reservations about this attempt to  
> distinguish between different shades along the speech-conduct  
> spectrum, and I share his discomfort with the over formalism and  
> potential for bizarre outcomes that is involved.  On the other hand,  
> I am not yet persuaded to abandon the attempt to distinguish between  
> limitations on the expression of a message and regulation of the  
> manner in which a message is expressed. Obviously, that is the  
> beginning of a long and complicated discussion.
>
> In my previous post, I was focusing more on the other question:   
> under what circumstances do we permit the government to regulate  
> speech?  The short answer is, "when it is harmful."  In the case at  
> hand, the category of "libel" is well recognized as harmful, and  
> hence unprotected, the content of the particular libel at issue is  
> about as damaging as it gets (is there room for one of the R.A.V.  
> exceptions here?), and the medium of communication is one that makes  
> it uniquely dangerous.
>
> As Eugene correctly points out, the internet makes a mockery of any  
> distinction between a single utterance and a repeated campaign of  
> innuendo.  That's one of the reasons why I think we need to set the  
> bar of disregard of the truth at a pretty high level.
>
> hs
>
>
>
>
>
> 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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>
> _______________________________________________
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