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

[Robert Sheridan]

At the risk of speaking overbroadly, which I wouldn't dispute, I was  
seeking a principle the existence of which I don't know exists.  I'm  
assuming that there must be (or should be, let's say) a principle  
which would hold that freedom of expression has a limit under  
circumstances which, while we don't see them often, may in fact  
occur.  I heard today that a political organization in Southern  
California had posted items calling for the lynching of Sen. Obama.   
This is not what I'm aiming at, as Sen. Obama is far away and this is  
sort of scurrilous speech which, while deplorable, is more or less  
idiocy as usual in America.

Suppose a neighbor is legitimately convicted of a heinous crime, say  
some form of child abuse, and the other neighbors decide they no  
longer want him around, i.e. living in their neighborhood or apartment  
comples.  What can they do?  They cannot assault him, for the  
government has arrogated unto itself the exclusive use of force and  
violence in the enforcement of laws and societal interests.

Suppose the neighbors decide to parade around the person's home with  
picket signs.  Or post leaflets on the neighbors' doors calling for  
the expulsion from the building or the block of the person convicted  
of molestation.  All constitutionally protected, up to a point, I  
assume.

My question is whether there is or should be a point beyond which the  
neighbors cannot go in "hounding" this person.  How long before a  
warning to others becomes a form of abuse of the individual.  As I  
understand it, under Megan's law, the convicted molester's name may  
appear in an online database.  I think I've read that, as a result of  
neighbors taking the law into their own hands, such people have been  
attacked, so now the police want to know who is asking, and do not  
release the information to just anybody where they control the process  
of disseminating the information.  You may have to go to the police  
station to access the details.

In America, we don't banish people by any formal process, apart from  
imprisoning them after a trial or plea of guilty, i.e. a legal process  
which we consider legitimate.

I doubt we allow banishment, informally.

Should there be a legal process leading to a court order of  
banishment, shunning, or ostracism from one's community?  A seemingly  
new cause of action?  A lawsuit for banishment?

If government hasn't enacted such a remedy, wherein does the general  
population have such a right to banish someone informally, strictly  
through the use of free speech?  Because I can imagine a group of  
dedicated neighbors keeping up their free speech rights until the  
person is forced to leave under fear of retaliation for staying, in  
implied threat, as it were.  In cases of threatened abuse, usually we  
place limits.

Perhaps this is all academic, but what better place to have an  
academic discussion than here?

Incidentally, I could add night-riding, pogroms, and lynchings, to the  
sort of mob violence we've all read about which may start out as  
exercises in protected activity (emphasis on the 'may'), but which  
turn into far worse down the road.

rs
sfls



On Oct 15, 2008, at 1:55 PM, 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?
>
>     Now I suppose someone could say that Claiborne and Keefe  
> involved "political speech," because it tied the particular names of  
> supposed malefactors with broader political debates.  OK, say  
> someone says "X is a child molester, and the failure to prosecute  
> him just shows what a corrupt or ineffectual legal system we have."   
> Does that make it political?  If it's not enough, then it's hard to  
> see how the naming of private citizens' names in Claiborne (which  
> actually literally was just "these people are the ones who aren't  
> going along with our boycott," followed by names) would be political  
> enough, either.
>
>     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.  Society holding trials may be  
> limited by all sorts of constraints, because it inflicts harm by  
> actually locking people up, taking away their property, and the  
> like.  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).
>
>     Eugene
>
> From: Robert Sheridan [mailto:rs at robertsheridan.com]
> Sent: Wednesday, October 15, 2008 11:09 AM
> To: Howard Schweber
> Cc: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: Re: The return of criminal libel, with truth not being a  
> defense?
>
> 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
>
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