Libel Laws and Scoundrel Refuges

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Probably no area of law is more misunderstood and more abused for baseless threat value than libel. Forrest Mims' threat is just the latest example. I'm going to briefly explain how defamation law works and why it's silly and irresponsible for people who disagree with each other to threaten such lawsuits. I'll use Mims' accusation of libel as an illustration.

Defamation is a tort---a private injury for which the wrongdoer can be forced to compensate his victim. (Historically there have been certain types of criminal defamation also, such as seditious libel, but these laws no longer exist in America.) Defamation is divided into libel (which is written) and slander (which is spoken). In both cases, the essence is an intentional harm to someone's reputation through the public utterance of injurious falsehoods. The elements (that is, the things a plaintiff must prove to win his case) are: (1) an untrue statement (2) expressed in written or other graphic form that (3) tends to injure a person's reputation (meaning to expose the person to public hatred, contempt or ridicule, or financial injury). See Chang v. Linh Nguyen, 76 S.W.3d 635, 637 n. 3 (Tex. App. 2002) (I'm using a Texas case because Mims is in Texas, but these elements are pretty much the same everywhere.)

Since it's a tort, defamation is generally a state matter, remediable in state courts, rather than federal courts. It's a little funny, therefore, to hear Mims make such accusations as "You made these false statements...and then sent them across State lines." What difference does that make? You can go to federal court to sue for defamation, sure, but why would you? For one thing, in federal court you'd be subject to federal tort damages caps which don't exist in many state courts.

Anyway, to prove a defamation case, it's not enough to prove that someone said something untrue about you. (And that is important---truth is a defense. If I accuse Forrest Mims of lying about what a speaker said at an event, and he sues me for it, I have the right to defend myself by establishing the truth of the matter.) You also have to prove that you were injured.

Now, when it comes to proving injury, there are two kinds of defamation: per se and per quod. Libel per se happens when you say something so bad about a person that the law just presumes that the person has been injured. At common law, there were several such instances: statements accusing a person of committing a crime, statements accusing a person of having a "loathsome disease" (something like leprosy), statements which injured a person's business or trade, and statements accusing a woman of being unchaste. Bolling v. Baker, 671 S.W.2d 559, 570 (Tex. App.1984). In every other case, (in per quod cases) a plaintiff must prove "special damages," meaning that he has to demonstrate exactly how the uttered falsehood harmed him.

But this isn't all. There is also a very important limitation on defamation law: the First Amendment, which in many cases protects our right to utter even untrue statements about certain people, even if those untrue statements hurt them. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court recognized that libel and slander law has often been used to silence criticism that the Constitution is supposed to protect. So they held that when a person commits defamation against a public figure (such as a politician), that public figure may not win a lawsuit for defamation except in extremely rare circumstances---that is, where the public figure can show that the defendant uttered the falsehood specifically knowing it to be false and intending to do wrong, or with "reckless disregard for the truth" (which is also very hard to prove). The basic rule, therefore, is that public figures generally can't win defamation cases even for things that really are false. I can say that Ted Kennedy has man-boobs and he can't do anything about it. Well, I guess that's true. Better example: Larry Flynt can say that Jerry Falwell has sex with his mother in outhouses, and Falwell can't do anything about it. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

So what's a public figure? "That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Real public figures are celebrities---Paris Hilton, for example, who's fair game for discussion on all subjects, with the exception of knowing or reckless falsehoods, as I've mentioned. Limited public figures are people who participate in particular controversies and about whom you have a broader range of freedom of speech for those particular issues. All of us at Panda's Thumb probably qualify as limited public figures, because we've chosen to participate in this controversy. People may therefore discuss us, and may even utter certain falsehoods about us (but not knowingly or recklessly).

And there's another important limit on defamation law: statements of opinion---even opinions as to a person's character---are not grounds for a defamation lawsuit. Yiamouyiannis v. Thompson, 764 S.W.2d 338, 340 (Tex. App. 1988). The line between opinion and fact isn't always that clear, but courts recognize that in a matter of public controversy, people are free to call each other names and attack each other's credibility within very broad boundaries. In Thompson, the issue was fluoridation in drinking water. A person opposing fluoridation was called various names and he sued for defamation. The court found that

the references to Yiamouyiannis as a quack, a hoke artist, and a fearmonger are assertions of pure opinion, as are the statements that he was exposed for quackery, lacks solid credentials, and expresses incomprehensible mumbo jumbo. These terms of derision, considered in context and in light of the fluoridation debate, are vintage hyperbole, and are not capable of proof one way or the other. They are the speaker's shorthand way of opining that Yiamouyiannis is not worthy of belief, his views are confused nonsense, and he is not qualified to instruct the public about fluoridation. While other commentators might have taken a more ratiocinative approach, the defendants were entitled to use instead these particular terms of invective in this context. As to each of these utterances, the absolute constitutional privilege applies.

Id. at 341.

Of course, the same applies to Forrest Mims. His publication of a report about a person's speech on a matter of public controversy makes him a limited public figure, whom we are all free publicly to criticize. Even if he wasn't a public figure, we could point out true things which damage his reputation---such as his "sin of willful ignorance." But since he is a limited public figure, we are all free also to call him a crazy kook, And certainly those who believe he has misrepresented the speech about which he reported are free to say that he has "dishonestly mischaracterized Dr. Pianka's statements." In fact, they are free to call him a quack, a hoke artist, and an utterer of mumbo jumbo, if they wish.

Throwing around threats of defamation lawsuits is the last refuge of a scoundrel. First of all, even if you have been libeled, it's virtually never worth your while to sue about it, particularly because it gives the other side the opportunity to prove the truth of the statement (which opens you up to potentially embarrassing depositions and discovery), and because people end up only remembering the defamatory statement, and not your ultimate court victory. Second, if you're in the right, you ought to be able to withstand not only harsh criticism but even much defamatory criticism. If you're going to dish it out, you have to be able to take it. As the Supreme Court has many times reminded us, the best solution for these problems is more speech, not less. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 498 (1996).

I address this to both sides of the evolution/creationism controversy; I've heard pro-science speakers also threaten defamation lawsuits against their opponents. This is even sillier than when creationists threaten such lawsuits, since our side at least has the truth on its side. If we have that, we hardly need the weak support of defamation law.

Comments are open for your questions.

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Stupid is as stupid does from The Inoculated Mind on April 8, 2006 9:19 PM

Is Forrest stupid or something? My momma says stupid is as stupid does. Well, Momma’s right again. ... Read More

23 Comments

I advocate Pianka threatening those suits because the businesses involved will opt for making apologies. Those apologies are the only hope of correcting the impression.

I think the more important issue is whether or not Dr. Pianka will pursue a libel lawsuit against Mims. It seems clear to me that Mims has committed libel per se. I think the Seguin Gazette-Enterprise took down the web versions of their articles on the subject after it became clear to them that they did not have any chance of using truth as a defense against any such suit.

Although I’m by no means a lawyer, I’ve often felt that the pro-science side is excessively timid about suing when blatant harm is done. Although I doubt that my few comments here have been widely noticed, it’s possible that I am a tiny part of the aggregate that inspired the second to the last paragraph above. While I thoroughly agree that thin-skinned howls of “libel” are ridiculous, I’m not sure that Pianka may not be in a situation to seek legal redress.

If Forrest Mims says he’s going to sue someone for calling him a “crazy kook”, that’s laughable.

On the other hand, let’s look at Pianka’s situation. Mims has very falsely and very publically accused him of advocating mass killings. As a result, Pianka’s reputation has been tarnished in some circles, but that’s just the tip of the iceberg. He has been subjected to extreme mental hardship. Receiving numerous credible death threats is a very severe case of mental hardship. Mims’ only conceivable defense is that Mims is so crazy he didn’t know what he was doing, and it’s a stretch.

These types of depraved false accusations would be grounds for a lawsuit in any other context. Why the Sam Hill should creationists get a free ride?

For that matter, why should the makers of the threats suffer no consequences? Technically, Pianka has the right to express repugnant ideas (even though he didn’t in reality). Why should self-styled creationist vigilantes be immune from prosecution? They have no right to threaten or kill Pianka, whatever his views.

From what I gather, Pianka does hold very pessimistic views which I hope are exaggerated. But this incident is disgraceful. I would personally be happy to see Pianka sue the pants off of Mims and all the creeps who issued the threats against him.

You can go to federal court to sue for defamation, sure, but why would you?

So there are federal laws, as well as state laws, on defamation?

Tim,

Speaking with regard to what I’ve heard from another lawyer, if the following were true:

1) Mims could be shown to have directly misquoted Pianka in a publication.

2) Mims could be shown to have had access to the correct quotes, instead.

3) It could be clearly demonstrated that the misquotation had been damaging to Mr. Pianka’s professional reputation or personal well-being (death threats).

Would that be grounds for a legitimate libel suit?

Don’t forget Harold, that not only has Dr. Pianka suffered from such hideous treatment by the student Mims singled out, Brenna M. has also had a hideous time. Check out the comments from her post about Pianka (cited widely by wingnuts) that are still online despite the blogs deletion*:

http://www.blogger.com/comment.g?bl[…]063426117854

Let’s take what one anonymous coward said to Brenna due to Mims singling her out;

Your comments and those of Dr. Pianka are not just ‘controversial’ these comments are dangerous. My concern is that a convert will act on your idea. All good people have to stand up and denouce you and Dr. Pianka. I think you are an intelliectual bigot. I’m sure you and Dr. Pianka feel you are too gifted, important, and enlightened to be in anything but the 10% that remain. You think you are practicing science. I think you are guilty of hate crimes against humanity. It would be a waste of resources to have a trial and imprison you, so perhaps your suicide by ebola would be best for all of us.

And of course, the resulting firestorm on her blog probably led to the deletion of it and I imagine one very upset teenage girl. Of course, all this doesn’t matter because if you recall, Mims has ‘threatened’ to ‘disclose’ another ‘female student’ who apparently lives in his fantasy world as well. Almost in a “I’ll see her publically humiliated as well by sending the wingnut squad after her if you don’t back away from exposing me” sort of affair. What a morally outstanding person Mims is that he requires the humiliation of students, rather than having others willingly come forward to defend his account (whereas others who were there are currently willingly signing a petition condemning Mims account as innacurate).

I personally think that this student targeted and sacrified in the names of Mims hysterical screed could have a case too.

Also for those wondering, deleting a blog from blogger.com doesn’t actually delete the comments for that blog, which are kept in a different area. That’s how the archive of that, well I guess you could call it nut-ball feeding frenzy, is still available so everyone can see that Mims’ hysteria didn’t just effect Dr. Pianka. It had negative effects on others also.

Regarding Russell’s federal defamation law question. No expert on defamation, I.

But I expect the “always go to federal court” remark was meant to refer to diversity jurisdiction, in which federal courts may be accessed by parties who reside in different states, a constitutional option that supposedly avoids citizens of state A being home-towned by the local courts of state B.

There is, as I recall, a dollar limit–that is, the controversy must be significant enough in amount to waste the time of a federal court–but in “personal injury” claims, where the dollar damages are unknowable ahead of a verdict, that’s usually not a problem.

The diversity must also be complete, that is, when you look at the parties on both sides of the case, none of the defendants can reside in the same state as any of the plaintiffs.

Or something like that.

I don’t think there’s a general federal defamation statute (but I haven’t checked). And since federal diversity jurisdiction isn’t truly “always” available (if there is no diversity of rexidence or if there is an insufficient amount in controversy) then I assume that Timothy had these particular (hypothetical) litigants in mind, and I’m assuming that Mims and Pianka must live in different states (maybe Mims’s bit about the email having “crossed state lines” makes that obvious).

Or, heck, maybe I’m wrong and there is a federal diversity law and diversity has nuttin to do wid it…

Excellent post which helps put everything into context and explains the baseless nature of Mims charges. Threatening legal action seems to be a pattern of behavior for Mims and his ability to accept criticism is nil. I don’t think he is qualified to be a DI fellow until he grows a thicker hide.

In Yiamouyiannis v. Thompson, I was glad to see that it was another Thompson who was able to provide a service to the community on the issue.

I noted that the judge wrote: “While other commentators might have taken a more ratiocinative approach, the defendants were entitled to use instead these particular terms of invective in this context. As to each of these utterances, the absolute constitutional privilege applies.” Clearly this flavor of Thompson was somewhat more boisterous than me, but if I feel particularly nasty all I have to do is quote this particular case.

Delta Pi Gamma (Scientia et Fermentum)

As bad as libel and defamation suits are here, it’s still better than over in England, where the accused have to prove that they’re innocent. Imagine if every creationist/IDer could sue the likes of PZ Meyers or Richard Dawkins, and have the burden of proof be on the scientists, a la David Irving suing Deborah Lipstadt.

Russell asks, “there are federal laws, as well as state laws, on defamation?” Not that I’m aware of. But you can still go to federal court even if your claim is based on state law, if you’re suing someone in another state and you’ve been damaged a certain amount.

AD writes, “if the following were true: 1) Mims could be shown to have directly misquoted Pianka in a publication. 2) Mims could be shown to have had access to the correct quotes, instead. 3) It could be clearly demonstrated that the misquotation had been damaging to Mr. Pianka’s professional reputation or personal well-being (death threats). Would that be grounds for a legitimate libel suit?” I don’t know; maybe. Pianka would have to overcome the fact that he’s probably a limited public figure, first of all. He would have to prove that Mims had acted with “reckless disregard for the truth,” which sounds easy to prove, but isn’t. Reckless disregard is a subjective standard that requires you to prove that the defendant had knowledge of actual falsity or had a high degree of awareness of probable falsity prior to publication. Not easy. And whether this has really harmed Pianka’s professional reputation is questionable, at least for now.

You know, all the goodwill Mims generated with his groundbreaking publications of the Radio Shack “engineering notebooks” is vanishing quickly. Maybe even quicker than Radio Shack can dump the stocking of actual electronics components from its stores.

Some legacy, eh?

The thing is, while lawsuits are stupid and perhaps futile, that doesn’t mean prevent Mims’ ass from being booted from whichever scientific society he happens to be embarrassing at the time. I wonder how the DI will respond? A double-fellowship,perhaps?

I’ve got a collection of those Radio Shack Mini-Notebooks by Mims, and I’ve used quite a few circuits from them in aid of my research. They are good and useful. But they obviously don’t confer authority when speaking about biology, evolution, or ecology on the author.

Defamation is divided into libel (which is written) and slander (which is spoken).

OUt of curiosity, how does this break down for other modern methods of communication?

Spoken, broadcast on radio or TV? Spoken, distributed on CD? Spoken, distributed as a transcript? Written, on a web site rather than paper print? Written, tattooed on your forehead? etc.

Out of curiosity, how does this break down for other modern methods of communication? Spoken, broadcast on radio or TV? Spoken, distributed on CD? Spoken, distributed as a transcript? Written, on a web site rather than paper print? Written, tattooed on your forehead? etc.

While you may find some court trying to break that down in some way, I dare say that the majority simply lump it under “defamation” and let it go at that. If there was any major difference historically between libel and slander law (which I’m too lazy to look up on a Sunday afternoon), it has long ago faded. There are practical differences involving the permanence of the medium (a tv station can be enjoined from airing a report again, while a book or CD publisher cannot be expected to recover every copy) but otherwise the law is the same.

Thank you for the informative post.

It might interest Mr. Mims to know that, depending on what type of email provider and system one uses, the mail may not be sent any further than a local ISP server. In some systems, mail delivery does not occur until a request for mail arrives. So you send an email, and a very small packet goes to the recipient email server, but the actual delivery may not occur until a request to send the mail comes back to the storage server,

Lowers congestion on the net, makes more efficient routing schemes, saves rackspace (fewer storage intensive servers required), etc.

But mail systems which operate in this manner don’t deliver mail, they sdend solicited information.

Perhaps an attorney might counter that someone intended to send this information anyway. But a network engineer who understood that delivery relied on a request from someone else could use this design to skirt responsibility for disseminating spam, porn, or whatever.

And then, could opening your mail mean that you invited whatever into your home, workplace, school?

Mims talk about state lines is foolish in the traditional context, but in light of the internet, things are changing rapidly.

I understand that Texas has no anti-SLAPP (strategic lawsuit against public participation) statute, unlike California, New York, etc. Perhaps that makes Mims’ suit a little more difficult (or at least more expensive), to fight?

Mims has stuck his neck farther into the noose. He has an editorial on “The Citizen Scientist” site at http://www.sas.org/tcs/weeklyIssues[…]l/index.html where he tells us:

“How The Citizen Scientist Story Took Off

The TCS feature was posted the evening of 31 March 2006. Late on 1 April 2006, a detailed and very nicely written feature by reporter Jamie Mobley was posted online at www.seguingazette.com and published as a page 1 story in the Sunday morning Seguin Gazette-Enterprise. Meanwhile, Shawn Carlson’s editorial was also posted on TCS.

Jamie Mobley’s story was sent to the Associated Press, which spiked it. I spoke with an AP bureau person who verified the fact the story was spiked and said so. He then said that his editor blocked the story because it came from a “small town newspaper,” and it’s implications were so serious they needed to be checked. The staff person said the editor was assigning a reporter to the story.”

In other words, Mims released his bit of vitriol, but the Associated Press refused to print it without checking it out. Did this cause Forrest Mims to take another look at his rather fantastic story? To wonder if maybe those 400 people who applauded the speech weren’t rooting for a monster, that possibly Mims himself was … mistaken?

Of course not! Forrest Mims III has God on his side. Mistakes are not possible. “While the wheels of the ancient Associated Press ground on, the new media took charge. Early Sunday afternoon the Drudge Report placed both the newspaper story and the TCS article at the top of its web page.”

And of course, once the “new media” (read Right Wing Echo Machine) had the story, Dr. Pianka was well and truly in for it. I’m not a lawyer, but I’d sure like to be on the jury if Pianka decides to sue!

Though it is evident that Mim’s interpretation of the lecture was wrong, it does not appear that Mim’s was intentionally lying. I think he actually believed that Pianka was advocating the mass-murder, etc. You can be used for lying for the purpose of defamation. My question is this: can you be sued merely for being an idiot when that idiocy results in your defaming someone?

My question is this: can you be sued merely for being an idiot when that idiocy results in your defaming someone?

I am not a laywer, so let me preface with that, but based on what I’ve read, I would think:

1) Not if you were just an idiot. Being an idiot is not legally punishable in most cases.

2) However, if you were to have later lied or misrepresented in some objectively verifiable way in order to prop up your idiocy, yes.

So basically, if Mims can be shown to have misquoted or directly lied about the contents of Pianka’s speech (given that it can be assumed he was in possession of the proper evidence, as he was at the speech), then I think you have something. For instance, if you comb his article for direct quotes from Pianka and then compare vs. a transcript or audio recording and Pianka never said those things which he was quoted as having said, Mims has a potential problem.

However, if he just reported his opinion and general statements, he’s probably fine. Misinterpretation is not lying, at least in a libel sense, I believe.

A lawyer can correct me if I’m wrong on this.

Looks like this whole incident has led to some infighting among the ID types.

Wonder if they’re ever going to figure out that dicks like DS are generally bad for business…

Read the comment thread for possibly one of the worst out-of-context quotes I’ve ever seen. Coming from this bunch, that’s saying something.

Joseph O’Donnell quotes and anonymous poster as saying about Brenna M.:

“I’m sure you and Dr. Pianka feel you are too gifted, important, and enlightened to be in anything but the 10% that remain.”

Said anonymous poster seems to be unclear on Dr. Pianka’s concept. No one will be doing the choosing as to who lives and who dies if airborne ebola strikes.

Well said, Tim.

About this Entry

This page contains a single entry by Timothy Sandefur published on April 8, 2006 3:09 PM.

More on the Seguin Gazette-Enterprise Affair was the previous entry in this blog.

Evolution versus “Intelligent Design” is the next entry in this blog.

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