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,</i> 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,</i> 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.,</i> 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,</i> 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.