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

Thu Oct 16 08:09:54 PDT 2008

I was taking a Con Law class with Sandy Levinson back in the Fall of
2000.  Somehow the idea was mentioned by a student (I forget the
context, but remember that the Florida controversy was raging) about
an assassination attempt on Bush.  The student who made the comment
was then rebuked by other students, because this was really beyond the
pale.  The student defended himself by saying something to the effect
that, "Its not like I would have any chance to do this." To which
another student replied, "He (Bush) is right down the street."  The
Law School at Texas is about a mile from the State Capital, where Bush
was sitting governor, and (presumptive) president-elect.

This, I think, illustrates the difficulty of making distinctions based
on distance. A person merely mouthing off can be in much closer
proximity than she or he realizes.  The problem is partially about
making distinctions based on mere mouthing off, and legitimate
threats. That, of course, reflects motive.  But given that a climate
of hostility can be created by incendiary comments, at what point do
we want the Secret Service to take such comments seriously?

Jonathan

On Wed, Oct 15, 2008 at 9:28 PM, Robert Sheridan <rs at robertsheridan.com> wrote:
> 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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-- 
Jonathan Chausovsky
Assistant Professor
Political Science Department
SUNY-Fredonia
E374 Thompson Hall
Fredonia, NY 14063
(716) 673-4673