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

[Volokh, Eugene]

    (1)  I just don't see the constitutionally significant difference,
given Claiborne Hardware, between speech that aims at persuading people
that X is a bad person and should be shunned, and speech that aims at
persuading people that X is doing bad things and should be shunned until
X stops doing the bad things.  I would think that true statements, or
statements of opinion, along those lines are equally constitutionally
protected.
 
    (2)  I'm sorry that I was imprecise in my statement about some sorts
of harm being constitutionally privileged; I should have said, "I take
it the premise of those cases is that when people inflict 'harm' by
persuading others of things -- including of someone's supposedly being a
bad person, or having acted badly -- that sort of harm is
constitutionally privileged, unless it consists of a false statement of
fact or Brandenburg-type incitement."  Of course First Amendment law has
recognized that a few narrow ways of inflicting a harm by persuasion are
constitutionally unprotected.  But Prof. Sheridan was going beyond
those, and suggesting that people shouldn't be free to inflict social
harm on others even by making true assertions (so long as the true
assertions haven't been proven in criminal court beyond a reasonable
doubt).  That is what I was responding to.
 
    (3)  In my response to Prof. Sheridan I was speaking about the First
Amendment generally (since Prof. Sheridan was saying that certain
statements should be constitutionally unprotected generally, as I
understood him).  Your true statements about others should be
constitutionally protected, I think, whether against libel lawsuits,
criminal harassment prosecutions, or otherwise.
 
    Eugene
 
 
Howard Schweber writes:
 


	Volokh, Eugene wrote: 

		    How is this to be reconciled with Organization for a
Better Austin v. Keefe, which held that speech aimed at coercing someone
to change his practices through the threat of ostracism is
constitutionally protected?  Or, even more on point, with NAACP v.
Claiborne Hardware, which held the same even though the speech -- there,
publicizing the names of black citizens who chose not to go along with a
boycott of white-owned stores -- posed a real risk that others would
violently attack the people whose names were publicized?


	Well, any time we talk normatively about what the law *should*
say we invite the possibility of having to call for overturning a
precedent.  But there is at least arguably a difference between "change
his practices" and "leave his place of employment" (or residence, or
affiliation).
	
	
	

		    I take it the premise of those cases is that when
people inflict "harm" by persuading others of things -- including of
someone's supposedly being a bad person, or having acted badly -- that
sort of harm is constitutionally privileged. 
		


	???  Since when did libel cease to be a category of unprotected
speech? 
	
	
	

		 That, for instance, is why you can't lock someone up as
a criminal unless his guilt is proven beyond a reasonable doubt.  But it
hardly follows that people should be forcibly shut up from discussing
his guilt (to the point of being themselves thrown in prison for such
discussions) when they have reason to believe that he is indeed likely
guilty (but perhaps can't prove it to a 95% certainty using legally
admissible evidence).


	I keep getting confused -- is Eugene talking about libel or
harassment here?  The false statement that someone committed a crime is
libel.  The burden of proof in a libel case is on the party suing or
prosecuting.  So first that party has to prove -- according to the
appropriate standard -- that the statement was false.  (I'm not sure why
this is not sufficient protection all by itself.)  
	
	The next question is to what additional inquiry that burden
should be applied.   In a criminal case should the state have to prove
BRD that the defendant knew they were making a false accusation, failed
to carefully determine whether they were making a false accusation, made
a false accusation negligently, or merely made a false accusation?
	
	hs
	

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20081015/0084018a/attachment.htm