Wednesday, November 02, 2016

Trump Wants to "Open Up" Libel Laws, But Maybe We Should Close Them Down

by Michael Dorf

In my latest Verdict column, I ask whether Donald Trump could bring successful defamation actions against the women who have accused him of kissing and groping them. I conclude that he almost certainly could not but that there is a greater likelihood that they could successfully sue him for calling them liars. In the course of the column, I discuss the First Amendment limitations on defamation suits by public officials, candidates for public office, and public figures. To protect freedom of speech and the press, the case law forbids recovery by such persons for mere falsehood for fear of chilling good faith but inaccurate speech.

As I noted in my post last week on Trump and Holocaust denial, liability for defamation is substantially easier to establish in England than in the U.S.  England does not have an "actual malice" standard, and English defamation law places the burden on the defendant to prove truth rather than on the plaintiff to prove falsehood. Here I want to suggest--albeit tentatively and mostly to start a conversation rather than out of any real conviction--that perhaps even U.S. defamation law makes it too easy for defamation plaintiffs to prevail. Maybe, contrary to Trump's proposal to "open up" our libel laws, we ought to shut them down.

We might begin with the proposition, recognized by Justice Kennedy speaking for the Supreme Court in United States v. Alvarez, that there is no "general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee."

To be sure, the absence of any general exception from free speech for false statements leaves in place a number of specific exceptions, including defamation and fraud. Given the Court's recommitment in recent years to a historical approach to defining those exceptions (as per United States v. Stevens and Alvarez itself), those exceptions won't be expanded, but neither are any of the existing exceptions likely to be removed from the list. Accordingly, I would not attempt to make the argument that defamation should be removed from the list of exceptions to the general rule against content-based restrictions on speech as a matter of constitutional law.

However, it does not follow that allowing liability for defamation makes sense as a policy matter. State judges revising the common law or state legislators displacing common-law rules with statutory ones might want to think seriously about whether there is a sound basis for the general tort of defamation. (By contrast, I have no quarrel with civil and criminal liability for fraud.)

Why might policy makers wish to eliminate the torts of libel and slander? I would start from the other direction. Lots of false statements cause harm, but not all of them are actionable, and many of the ones that are not actionable seem worse than standard common-law defamation.

For example, when Donald Trump falsely stated that he saw "thousands and thousands" of people in New Jersey cheering on 9/11, he caused harm to American Muslims because the false beliefs that Trump fostered among his followers led them to see American Muslims suspiciously, which in turn increased the likelihood of harmful acts towards Muslims. When Trump said undocumented Mexican immigrants are rapists and thus falsely implied that they are more likely to be rapists than are other people, he did real harm to undocumented immigrants and to some Latino and Latina US citizens.

When news media give a platform to climate-change denialists who contend that global warming is a hoax or not due to human activity, they do real harm to the planet and thus to all of us, because the false beliefs that are fostered among a large segment of the public gets translated through our political system into weaker (or nonexistent) demand for urgent action to avert climate catastrophe.

The harms in the foregoing scenarios are at least as great as or many times greater than the harm to reputation that ordinary defamation occasions. And yet the law does not attach civil liability to them.

Take the group-libel/hate-speech examples first. The Supreme Court upheld a group-libel/hate-speech law in 1952 in Beauharnais v. Illinois, but even though that ruling has not been formally overturned, it has not been cited for its holding (as opposed to in string cites for other propositions) for decades. While hate-speech is unprotected in most other constitutional democracies, it is protected in ours.

Of course, one could say that this is precisely the problem--not that we recognize individual defamation but that we fail to recognize group defamation. Although this wasn't what Trump had in mind in proposing "opening up" our libel laws, someone looking at U.S. law from a European or other foreign perspective might suggest opening them to group libel. Whatever the merits of that suggestion, it is a non-starter given the Supreme Court's rejection of hate-speech as a category in R.A.V. v. City of St. Paul and other post-Beauharnais cases.

One might object to the global warming example on the ground that the harm runs through public policy. Yes, the objection would go, global-warming-denial is harmful, indeed more harmful than most garden-variety instances of defamation, but speech, even if false, can never be the basis for (civil or criminal) liability based on its tendency, if believed, to lead to harmful policy choices through the democratic process.

I think that's a good objection to actually allowing any kind of liability in my global-warming example, but it doesn't move the ball much in defense of the status quo with respect to defamation. Both the group-libel/hate-speech example and the global-warming example undercut the claim that defamation should be singled out as the basis for liability for false speech on the ground that it is especially harmful false speech. It isn't.

Still, one could point to another distinction with my two examples. One might say that they both involve harm to large undifferentiated groups, whereas common-law defamation affects people on an individual-by-individual basis. However, even granting that distinction, it is relatively easy to come up with other instances of false speech that affect individuals qua individuals but do not give rise to liability. Consider the following hypothetical example.

Pat joins an online dating service and, in answer to the question "Are you seeking a long-term relationship or a casual hookup?" clicks on "long-term relationship." In fact, Pat only wants a casual hookup, but Pat thinks that prospective partners will be more attracted to someone seeking a long-term relationship. Pat also thinks that people who are interested in long-term relationships are less likely to have STDs than are people seeking hookups. After getting matched by the algorithm, Pat and Chris go on a couple of dates. Chris really likes Pat and sees potential for a long-term relationship. However, after they sleep together, Pat stops returning phone calls or texts from Chris, who is deeply hurt by the experience.

Pat's lying caused serious injury to Chris, but it does not appear to be tortious. It is not rape by deception and it is not intentional infliction of emotional distress. Perhaps Chris could in theory be liable for negligent infliction of emotional distress in a jurisdiction that recognized such that tort, but such cases are very difficult to win, and it is hard to see the courts allowing such liability here without opening up a Pandora's box of claims. When couples break up, one or both parties foreseeably gets hurt. Being a thoughtless or even a deceptive romantic partner cannot be the basis for liability in a reasonably free society.

Now consider whether harm to reputation is categorically worse than the other sorts of harms that can and do arise out of falsehoods. Maybe it is, but I don't see why. I don't mean to minimize the harm that results from an unfairly damaged reputation. I'm simply saying that the assumption that such harms warrant liability while many other harms occasioned by false statements do not warrant liability may be wrong. We are familiar with the possibility of defamation liability, but familiarity is not a justification.


Joe said...

What is the breadth of your thought experiment?

If defamation causes professional harm ("that baker has a skin disease" etc.), would that change it?

egarber said...

Is it possible that the current framework serves the purpose of making public office more appealing to qualified people, who know they at least have recourse amid egregious misrepresentation of fact? As such, is there a meaningful distinction here related to promoting effective democracy?

Hashim said...

Mike, the reason group libel and "fraudulent" inducement for sex are not proscribed is that there are countervailing concerns that trump the harm to the "victims." As for group libel, there are serious problems with proving falsity as well as proximate cause for alleged injuries -- problems that are so insuperable that it's not worth allowing suit. As for "fraudulent" inducement for sex, the govt understandably doesn't want to police the bedroom in that way and thinks it better to force individuals to assume the risk for their sexual decisions.

By contrast, there's no serious countervailing concern against punishing an individual for causing reputational injury through false speech about another individual, at least where the Sullivan standard is applied and thus there's no meaningful risk of chilling true speech. Or, if you think that risk still exists despite sullivan, then the answer is to tighten the standard further. But it's very hard to see why a deft who is indisputably aware that he is imposing reputational injury through lies should not be held accountable.

Shag from Brookline said...

Mike, in your penultimate [still my favorite word] paragraph, second sentence, should "Chris" be corrected to "Pat" or the sentence otherwise restructured?

In any event, with respect to the Pat/Chris hypo, I'm curious as to how the "truth" about Pat's intentions would be established. Would they be assumed arguendo?

Legal claims of defamation often extend/expand the claimed defamatory impact. Many attorneys would warn a claimant of that effect. Then there's the matter of damages. The problem with a Trump-type is his alleged deep pockets in pursuing a defamation claim, putting the defendant at financial risk. A Trump-type might accomplish this with a threat of litigation, suppressing the press, getting an apology, etc.

We've come this far with the 1st A on defamation. Might an amendment of the 1st A be considered, and if so, I wonder what such an amendment would look like.

egarber's "... making public office more appealing to qualified people, ..." is interesting but will it promote "effective democracy?" Do "qualified people" recognize skeletons that might be in their closets? And would their having legal recourse actually stop egregious misrepresentations of facts? Think National Enquirer and Breitbart.

Greg said...

Primarily posting to claim "penultimate" as my favorite word as well.

As far as the actual topic, I suspect it's really the "private" versions of defamation that are the most dangerous. It's telling someone's boss "wow, I can't believe you hired Pat, that person is a thief and a cheat, and I wouldn't let them near any business I owned." That could have serious consequences to someone who is in no way a public figure.

There are numerous other examples that are equally bad. While they may have a case, I don't see any strong importance in preserving defamation liability in the discussion of the Trump allegations, or in any of the cases described here. I agree with Hash that if there are any egregious problems with the current system then the law should further restrict the cases where defamation liability is applicable.

Shag from Brookline said...

I have no basic disagreement with either Hash or Greg. But there is a problem. Leaving this at the doorstep of each state to address, if it chooses, may lead to 1st A constitutional challenges, such as the Court addressed in Sullivan v. NYTimes. An appropriate national remedy via Congress and the President would most likely have to be addressed by the Court. That's why I raised the matter of amending the 1st A; but how? So we may be stuck with the status quo.

Greg, from my law school days (1951-54), my 1st year Personal Property course (yes, it was once a separate course for a whole semester) exposed me to the word "fungible," which was my favorite word until some time in the early 1970s when I was exposed to "penultimate," with "fungible" being lowered to my second favorite word. By the way, my third favorite word is "hermeneutics."

Michael C. Dorf said...

I only briefly have access to the internet today, as I'm in transit, but
1. I would be more sympathetic to some claims of business defamation, but even there I'm worried about exceed. Oprah's experience with the suit by cattle ranchers is a cautionary tale.
2. I thought about three points Hash makes and I mostly agree, but I do think there is Han from the fear of defamation suits. Allowing meritorious suits carries the risk of empowering "libel bullies" to bring merited ones that nonetheless chill legitimate freer speech.
3 this really is just a thought experiment!

Joe said...

The concern regarding defamation suits is that there are going to be truthful comments somewhere along the borderline and people will sue. The cost of litigation alone will deter some people. You can imagine private citizens who have the means to sue that are basically cranks or misguided.

Judge Kozinski in his own opinion in U.S. v. Alvarez went in more detail why lying might warrant protection in various instances. In some case, that might overlap with defamation in some fashion. And, why wouldn't in some case would the speech involve family members and other "private" matters that raise concerns about bring that sort of thing unnecessarily in the open? If there is no business or related harms, what damages would be warranted there?

There are concerns there even if defamation should be retained as a tort.