Re: poly: Free Speech

From: GBurch1 <>
Date: Sat Apr 11 1998 - 05:24:04 PDT

In a message dated 98-04-10 17:33:19 EDT, Rich Schroeppel wrote:

> We've got libel laws to cope with some of the problems, but
> the consequences are sometimess either harsh or crazy.

It is very difficult to come to any conclusion about the actual effect of
libel laws. Cases involving libel, slander and other "speech torts" or, as I
like to call them, "info-tort" cases, are over-reported because they involve
reporters and their employers. News businesses care a lot about this law,
tend to use their media to publish accounts of defamation cases and, despite
their best intentions to be unbiased, to do so in ways that make the claims
seem unfounded. This is at least so in cases involving allegations against
"respectable" media organizations. I note that claims against the Enquirer
tend to get less favorable treatment in, say, the N.Y. Times.

Because the vast majority of legal disputes in the Anglo-American system are
primarily private matters, it is impossible to do meaningful empirical
analysis of the operation of the system. The vast majority of tort and
commercial cases are disposed of without trial, either by settlement or pre-
trial motion. Most of the results of pretrial motions are not recorded in the
case reporters at the trial level and the results in the vast majority of
those cases are not appealed, where a reported decision would result. So the
publicly visible part of the private legal system is literally the tip of the
iceberg. As a result, attitudes regarding tort and commercial law tend to be
matters of ideology, supported by purely anecdotal "evidence".

One should be HIGHLY suspicious of discussions of legal policy supported by
claims of empirical evidence. Regarding a subject about which I have spoken
and thought a lot, "tort reform", I like to say that anyone who claims to
support their position with empirical evidence either doesn't know what they
are talking about or is consciously lying. Nevertheless, with those caveats
in mind, some rough statements about the relative effects of legal policies is

In practice, "info-torts" are an EXTREMELY small part of the Anglo-American
common law. I'd be willing to bet that most lawyers in the U.S. don't even
know another lawyer who has ever worked on a defamation case. It so happens,
however, that one of my best friends is one of the tiny fraternity of "1st
Amendment lawyers", as they call their practice. His clientele is mainly
newspapers, book publishers and television stations. Here in Houston, an
urban area of approximately 4 million, counting Clear Lake (NASA) and
Galveston, I would guess that there are fewer than ten 1st Am. practitioners.
I don't know how many lawyers there are in the area, but I'd bet there are
more than 10,000 and may be as many as 40,000. As a comparison, I'm sure
there are at least 1,000 lawyers among that group specializing in personal
injury or property damage tort cases, or as I like to call them, "action
torts". So, my friend has one of the most exotic practices of any lawyer I
know outside of academia.

Based on my own slim knowledge of defamation law, but also mainly on the many
conversations I've had with my friend, I would say that the current law of
defamation is skewed heavily in favor of the defense. Looking at just the
defamation part of his docket, my friend has a win/loss ratio that would be
the envy of any misdemeanor prosecutor: Neither he nor his partners have ever
lost a defamation case, nor paid a dime in settlement of such a case, across
46 combined years of practice!

The "unequal playing field" in defamation law is mainly due to the rule found
in the U.S. Supreme Court case of Sullivan v. N.Y. Times, requiring the proof
of "actual malice" in the liability phase of the case. Writing from memory
here, this standard requires proof of actual knowledge of or conscious
disregard for the falsity of a statement. Simple negligence won't do. This
rule applies whenever the plaintiff is a "public figure" (I won't go into the
definition here, but any politician or celebrity is a "public figure", while a
"private citizen" -- such as a business person who hasn't already become a
celebrity -- isn't). This is an EXTREMELY hard burden to meet, so much so
that any 1st Amendment lawyer who loses a case against a media organization
for the defense is in real danger of developing liver problems thereafter.
Winning one AGAINST a media organization other than the Enquirer immediately
elevates a lawyer to celebrity status herself within the bar.

A defamation case by a private citizen faces an additional hurdle, one raised
by the general law: In MOST cases there is a requirement of proof of damages
that are not "speculative". Overcoming the bar to speculative damages is
extremely difficult in defamation cases because a plaintiff must show loss of
some specific economic value proximately caused by the alleged defamation.
This is a tough job in a "normal" tort case that doesn't involve obvious,
gross physical injury. Where the damaged thing is reputation, it is almost

The impediment of proof of actual damage is so great that the common law of
defamation makes some exceptions. There are certain slanders that are called,
if memory serves, "slanders per se", and for which proof of actual damage is
not required, shifting the burden to the defense to prove that there was no
damage. Again writing from memory, these included a false allegation that the
plaintiff has a "loathsome disease", i.e. a venereal disease (I do recall that
term from law school, since the phrase has such humorous gravity and, after
that class we all accused each other of having loathsome diseases). Defaming
a woman's chastity (but not a man's) was traditionally a slander per se. And,
interestingly, disparagement of profession was also a slander per se: Defaming
a lawyer's or doctor's professional competence (but, traditionally, not a
bricklayer's) was a slander per se. I believe there may have been a retreat
from this last rule in modern times (because of its obvious self-interested
origin in the bar), but I'm not sure.

> Recent news reports include an author's works being tied
> up at the publisher, who is in bankruptcy because of some
> unrelated libel.

I don't know about this story, but I would guess that the writer's work is
owned or co-owned by the publisher and would be "tied up" in the bankruptcy
regardless of what drove the publisher there.

> Another vignette: In the 1960s, Paul Krassner's "The Realist"
> ran a stupid insult to Barry Goldwater: a full page ad saying
> approximately "1000 psychiatrists say Goldwater unfit to
> be president". I think it turned out to be a total fabrication.
> Goldwater sued for the libel, and got The Realist shut down.
> Krassner waited a couple of years and started a new rag, new name.
> The court ruled it was a continuation of The Realist, and shut
> it down again.

I have a dim memory of this case. It may be that it predated Sullivan, but
might well have had the same result under modern law. A real "fabrication"
will get you into trouble. On the other hand, the story of "shutting down"
subsequent publishing efforts seems wrong. There are POWERFUL 1st Amendment
rules against "prior restraint" of speech. Perhaps this was simply Goldwater
executing on his money judgment.
> Now we have Matt Drudge.

>From what I've read, he has NOTHING to fear under the Sullivan rule.
> Of course, filing a libel suit is usually a bad idea: even if
> you win, the guy can't pay;

True in any kind of case.

> losing is a catastrophe;

Tell me about it. Actually, high-profile libel plaintiffs are usually
wealthy, cranky individuals. Their lawyers take the cases, knowing they will
almost certainly lose, because they value the other business that Mr.
Moneybags Thinskin gives them.

> the guy with
> the most money wins;

Actually, the guy with the printing press (or web site) usually wins.

> you can't really regain your reputation;

Which speaks in favor of having some legal disincentive to defamation.

> juries are random; etc.

No comment. Well, actually, I can't help myself. Here's a tidbit: Civil
juries have all but disappeared in the English system. Except in defamation
cases, the one kind of allegation that a plaintiff still has the right to be
heard by a jury.
> There's "true libel": Joe Goldblum is Jewish. John Smith is
> gay. George Doe has Aids. Jack Roe buys Zocor. etc.
> There's pain-in-the-ass invasion of privacy: Jackie got up
> at 7:30 (pix), had two eggs for breakfast, watched channel 6,
> went to the store, bought a loaf of wonder bread, etc.etc.

Interestingly, as you point out, this isn't libel. Invasion of privacy raises
a whole different set of issues, as does the rare hybrid cause of action for
"false light", the claim that the publication is true but, because it isn't
the whole relevant truth, casts the plaintiff in a damaging false light.
Winning a false light suit makes winning a regular defamation case look like
beating the Chicago Cubs.

> On another front,
> We've seen Soldier of Fortune held responsible for a hitman ad.

I remember that case, because an aspect of it was local here. SoF was held
liable for civil conspiracy. In the context of the facts of that case SoF had
committed an "information tort" in the sense that they were solely a
communication intermediary. However, in theory at least, it seems a wise
policy for the law to discourage profit from murder. Note, my libertarian
friends, that I am speaking of private rights of action, not state action or
prior restraint.

> If we take free press literally, it allows forgery and some frauds.
> Instructions for the commission of a crime are problematical.
> Few governments would ignore the publication of military secrets.
> The whole copyright tarball. Medical malpractice; unlicensed
> lawyering; computer viruses; tobacco advertising; etc.

Right. As every first year law student in the Anglo-American world learns the
cliche, the law is a "seamless web" that does not come with clearly defined
delineations of subject matter or result, despite the best efforts of the
Napoleonic Code and its progeny. The creation of absolute rules is
inconsistent with this reality and ALWAYS gives rise to paradox and injustice.
Thus raising "free speech" to the level of an absolute value in the law will
result in absurdities where speech shades over into action, such as in the
case of Soldier of Fortune.

        Greg Burch <>----<>
           Attorney ::: Director, Extropy Institute ::: Wilderness Guide -or-
                   "Good ideas are not adopted automatically. They must
                      be driven into practice with courageous impatience."
                              -- Admiral Hyman G. Rickover
Received on Sat Apr 11 12:37:40 1998

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