On Speech On “Skanks”

My civil libertarian friends are “worried” about the precedent set in the recent Liskula Cohen case. In the case, a formerly anonymous blogger said some nasty things about Cohen. So nasty that Cohen sued to unmask the blogger’s identity and was successful in doing so. The blogger is now suing Google alleging that the company owed her a fiduciary duty and should not have revealed her identity.

Critics of the Cohen case tend to focus on the fact that the blogger called Cohen a “skank.” They argue that the word is mere hyperbole and not an objective fact. But the blogger said and did much more than that. From the opinion (PDF):

i-eeb593d2d566f74831207202efbf6bfb-cohen.jpg

I think the civil libertarians are wrong on this case. Privacy is not an unlimited right. Cohen pierced the blogger’s veil of anonymity, but to do so she had to go to court and prove some merits of the case. Maligning another as promiscuous has always been defamatory, and the First Amendment has always allowed punishing such expression. This type of speech carries with it serious harm to women, especially those who rely upon their reputation in their work.

Comments

  1. #1 Noadi
    August 25, 2009

    I completely agree with you. This was not a case of Google just handing over the information on request. They did the right thing in not revealing the identity until a judge ordered it. The judge clearly though the case has merit.

    Most of the time I’ll come down on the side of a defendant in these cases but this blogger was no Simon Singh. The intent of those posts was to defame this woman and I don’t think anyone could argue otherwise.

  2. #2 Paul Murray
    August 25, 2009

    If the blogger sues google for complying with a court order, it will be amusing if the judge responds by slapping a contempt of court penalty on that blogger.

  3. #3 Simon Farnsworth
    August 25, 2009

    I disagree, but only slightly; Ms Cohen sued on the basis that she intended to pursue Ms Post under a defamation doctrine. Having obtained and publicly posted Ms Post’s identity, I would expect her to continue the defamation case, and not to simply lower herself to Ms Post’s level.

    Even if they’d then agreed a nominal settlement, I would at least feel that she’d gone into the court system with honest intent – as it is, I feel that she went into the courts asking for justice but only wanting revenge.

  4. #4 Jared
    August 25, 2009

    I’m still curious how a “defamation” claim can be made by referring to someone in the most vitriolic of manners. Name-calling, while I find it quite rude, is not actionable unless it is positing a verifiable claim.
    X engages in prostitution”
    X is a ho”
    These are two completely different statements and while one is a statement of opinion, the other posits a real action. The testable claims put forth on the blog were, actually, backed up with pictures.
    X goes to night clubs”
    X dances provocatively in night clubs”
    X is about 40 years old”
    The remainder is fluffy name-calling.

    “MOMMY!!! The evil lady said mean mean things about me on teh intertoobs”

    My point is this; was it a nasty, vicious, and unsubstantiated name-calling, yes, was it defamatory, no. Lots of blogs, lots of news articles, lots of media personalities engage in very similar activities ALL THE TIME, and are made with the expressed purpose of being believed as absolutely factual and not statements of opinion. Opinion is never defamation unless it is claimed as fact. As such, the case had absolutely no merit.

    The four-prong test for libel from Ollman V. Evans:
    First, we will analyze the common usage or meaning of the specific language of the challenged statement itself. Our analysis of the specific language under scrutiny will be aimed at determining whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous. See Buckley v. Littell, 539 F.2d 882, 895 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). Readers are, in our judgment, considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning. Second, we will consider the statement’s verifiability–is the statement capable of being objectively characterized as true or false? See, e.g., Hotchner v. Castillo-Puche, supra, 551 F.2d at 913. Insofar as a statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content. And, in the setting of litigation, the trier of fact obliged in a defamation action to assess the truth of an unverifiable statement will have considerable difficulty returning a verdict based upon anything but speculation. Third, moving from the challenged language itself, we will consider the full context of the statement–the entire article or column, for example–inasmuch as other, unchallenged language surrounding the allegedly defamatory statement will influence the average reader’s readiness to infer that a particular statement has factual content. See Greenbelt Cooperative Publishing Association v. Bresler, supra, 398 U.S. at 13-14, 90 S.Ct. at 1541; cf. Restatement (Second) of Torts Sec. 563. Finally, we will consider the broader context or setting in which the statement appears. Different types of writing have, as we shall more fully see, widely varying social conventions which signal to the reader the likelihood of a statement’s being either fact or opinion.

    While the Supreme considers no opinion exemption for defamation, factual inference or verifiability is still necessary (Milkovich v. Lorain Journal Co.).

    In short, if a statement can be verified and is not and is alleged true, the writer is accountable for the statements if incorrect.

    It’s usually a bit more twisted and mangled than this, but this was a pretty clear case where “factually alleged” statements were, the opinions based upon these “factually alleged” statements are neither alleged facts nor statements of truth.

    Name-calling such as “ho,” “skank,” “slut,” “jerk,” “bastard,” and such is in no way an assertion of fact.

  5. #5 Calli Arcale
    August 25, 2009

    I’m not sure there ought to be a distinction between “so-and-so engages in prostitution” and “so-and-so is a prostitute”, with only the former being actionable. Don’t they both mean the same thing? (Someone cannot be a prostitute if they do not engage in prostitution, after all.) I am not a lawyer, of course, so there is probably something I’m overlooking.

  6. #6 Ledhyena
    August 25, 2009

    Have to agree 100% with Jared above. The question is important, anonymity is not an absolute right, and it is very important we have this conversation. However, this particular instance is completely ludicrous. There are better case studies out there (the recent SIIA John Doe case involving Solers for example) than some stupid name-calling.

    Also read about this on the NYT ethics blog, and a line there really hit home (even though I don’t agree with all of the article). “But with anonymity comes diminished credibility. It’s tough to distinguish the astute from the vengeful.” This is the point to take home from all of this. If you have to hide your name, you better have a good reason for doing so, or else you justify the loss of trust in your words.

  7. #7 Suricou Raven
    August 25, 2009

    I don’t understand the purpose of defamation law at all. What does it matter if person A wants to accuse person B of, well, anything at all? If they don’t have proof, then ignore them. They are just a rambler who noone should listen to. If they do have proof, then their claims must have merit and shouldn’t be forceably silenced by legal action.

    If someone’s reputation can be serious damaged by groundless claims, then it isn’t much of a reputation to start with.

  8. #8 Screechy Monkey
    August 25, 2009

    “I’m not sure there ought to be a distinction between “so-and-so engages in prostitution” and “so-and-so is a prostitute”, with only the former being actionable. Don’t they both mean the same thing? (Someone cannot be a prostitute if they do not engage in prostitution, after all.) I am not a lawyer, of course, so there is probably something I’m overlooking.”

    What I think you’re overlooking is the explanation Jared gave in the rest of his post. It’s not really that “engages in prostitution” is necessarily materially different from “is a prostitute”; the point Jared was making (and with which I agree) is that it’s the context of the statement that matters.

    For example, there’s a big difference between the following statements:

    Statement 1: “X is a prostitute. He has sex with people for money.”
    Statement 2: “Prostitutes are people who allow someone to use parts of their body for the client’s own purposes in exchange for money. A lawyer allows his clients to use his brains for the clients’ own purposes in exchange for money. X is a lawyer. Therefore, X is a prostitute.”

    In both cases, the speaker asserts that X is a prostitute. But Statement 2 is not defamatory, because it’s clear from the context that the speaker is only basing the assertion on the fact that X is a lawyer, rather than an assertion (or implication) that X has sex for money.

    It seems to me that the blog excerpts Chris posted should not reasonably be interpreted as accusing the subject of having sex for money. They seem to be accusing her of “slutty behavior”: provocative clothing, flirtatious behavior, etc. Whether it’s tasteful or appropriate or respectful to women or not, many people use terms like “skank,” “whore,” and “ho” for such purposes.

    To give another example: a couple of years ago, ESPN’s web site ran a photo of Evel Knieval with a pair of attractive young ladies. The caption referred to him as “a pimp” (or “pimp daddy” or some such). Knieval sued for defamation; the court rejected the claim, ruling that a reasonable reader would understand that ESPN was using the term in the vernacular sense rather than literally accusing the man of living off the avails of prostitution.

  9. #9 crankynick
    August 25, 2009

    I understand it’s very difficult to sue for defamation in the US, given the constitutionally protected right to free speech.

    Not an American, but I understand your fundamental test to get to court is evidence of malice in the publication.

    So in this case the plaintiff would need to demonstrate (in the defo case, not this earlier action) that the publication was motivated by malice.

    It’s a lot easier to take defo action in other countries, btw – in Australia, for example, the plaintiff only has to demonstrate that they were defamed in the eyes of ‘right thinking people’. The burden of proof then falls on the publisher to establish the truth of the defamatory claims (or establish one of another series of defenses against the action).

  10. #10 Suricou Raven
    August 26, 2009

    “I understand it’s very difficult to sue for defamation in the US, given the constitutionally protected right to free speech.”

    There is a very common solution to this problem. Sue in the UK instead. Our defamation laws are some of the most friendly to the plaintiff in the world, can be enforced internationally thanks to some treaty thing, and cover any material accessible to UK citizens even if not intentionally published there. So we’ve become the go-to country for libel tourism. It’s even easier than in Australia, I think. Even if both the plaintiff and defendant are in the US, and the offending material was published in the US, courts here still consider it in their jurisdiction.

    We’ve had a couple of incidents of alternative medicine practitioners using this to intimidate critics, too – threatening to sue anyone who dares claim that their woo doesn’t work.

  11. #11 Mark P
    August 26, 2009

    Even the most outrageous claims (which are certainly defamatory) can be protected speech, especially if the claims are so outrageous and exaggerated that they are clearly intended to be parody and are not intended to be taken as literal truth. See Hustler vs Jerry Falwell.

  12. #12 Screechy Monkey
    August 26, 2009

    “Not an American, but I understand your fundamental test to get to court is evidence of malice in the publication.”

    Sort of. In cases involving a “public figure” (and determining who is a public figure is a whole separate issue), the plaintiff does have to show malice. “Malice” for these purposes is not quite the same thing as in criminal law or other contexts; it really means with knowledge or reckless disregard of the falsehood, rather than any particular desire to harm the defamed person.

    Essentially the difference is that negligence isn’t enough to establish defamation in a case involving a public figure.

  13. #13 Calli Arcale
    August 26, 2009

    “What I think you’re overlooking is the explanation Jared gave in the rest of his post. It’s not really that “engages in prostitution” is necessarily materially different from “is a prostitute”; the point Jared was making (and with which I agree) is that it’s the context of the statement that matters.”

    Okay, now I get it, and yes, I agree — context should be the real test of whether or not it’s libelous or slanderous or just simply an insult (which would be protected).

    I thought he was saying that it had to be in the form of a verb, basically, and that seemed silly. ;-)

  14. #14 Dweller in Darkness
    August 26, 2009

    Okay, so, the woman doesn’t have ground from a defamation suit, based on what we’ve determined. Even if that’s the case, does that preclude her from having the right to obtain the information necessary to have that determined in a court of law, rather than in the court of public opinion?

    Honest question, I really don’t know.

  15. #15 Screechy Monkey
    August 26, 2009

    Well, actually, a judge determined that she did have a sufficient basis for a defamation claim to justify compelling Google to identify the blogger. And I gather from his post that Chris H agrees with that decision.

    As a general matter, courts do require some showing that there’s a valid (or potentially valid) claim in order to force a third party to identify an anonymous or pseudonymous poster, user, etc. Otherwise, anyone who doesn’t like what an anonymous person is saying can file a lawsuit, compel disclosure of the speaker’s identity, and then drop the lawsuit.

    Which is exactly what this plaintiff has done, interestingly enough. I think that tells you something about her intent in filing the suit and the validity of the judge’s decision.

  16. #16 Chris H
    August 26, 2009

    @Dweller, no, she does have a claim for defamation. Impugning a person’s sexual reputation is defamatory. She might even have a claim for emotional distress.

  17. #17 sspeed
    August 26, 2009

    The judge who found in favor of Liskula should be disbarred.

  18. #18 Chris H
    August 26, 2009

    @sspeed, why? Because you don’t like the outcome? What should the standard be for unmasking an anonymous blogger? Should the anonymous blogger’s rights be unlimited? What if the anonymous blogger was using the service to commit a crime, a conspiracy or drug dealing ring?

    If Cohen was defamed, why should the law leave her with no remedy? Should there be no remedy because the speaker hid behind a blog instead of publish the matter in a newspaper?

  19. #19 Mark P
    August 28, 2009

    Cohen is a public figure. The standards for a successful claim for libel or slander are different for public figures.

    You should also note that something may be libel (or defamation) by legal definition but while that may be necessary grounds to win a suit, it is not sufficient grounds to win a suit.

  20. #20 Gilga
    August 28, 2009

    “Name-calling such as “ho,” “skank,” “slut,” “jerk,” “bastard,” and such is in no way an assertion of fact”.

    I disagree.

    The word skank means “One who is disgustingly foul or filthy and often considered sexually promiscuous. Used especially of a woman or girl”. See skank. (n.d.). The American Heritage® Dictionary of the English Language, Fourth Edition. Retrieved August 28, 2009, from Dictionary.com website: http://dictionary.reference.com/browse/skank

    I don’t know how calling someone a “skank” is anything other a assertion that she’s sexually promiscuous. If it isn’t, the words don’t really mean anything.

  21. #21 Screechy Monkey
    August 28, 2009

    “I don’t know how calling someone a “skank” is anything other a assertion that she’s sexually promiscuous. If it isn’t, the words don’t really mean anything.”

    The meaning of a word is flexible and context-dependent. I already gave the example of how “pimp” was found non-defamatory, even though at least one dictionary definition says it’s a type of criminal.

    At least one court has ruled that “skank” is not actionable defamation. Seelig v. Infinity Broadcasting, 97 Cal.App.4th 798 (2002).

    People call others “bastards” as a generalized insult, not a specific aspersion on whether their parents were married.

    In my experience, “skank” is a similarly flexible word. Like it or not, people use it as an all-purpose insult for women. I really don’t think any reasonable person reading that blog entry could have thought, “gee, this blogger has particular knowledge of Ms. Cohen’s sex life, which is apparently a promiscuous one.”

  22. #22 alobster
    August 28, 2009

    well, if she’s in a sexually suggestive position, some might call that whorish behavior.

    if it walks like a duck…

  23. #23 alobster again
    August 28, 2009

    and isn’t she going to have to prove that she is not a skank or a ho? how does one prove that? some may be of the opinion that if she had relations out of wedlock that makes her a whore

  24. #24 Chris H
    August 29, 2009

    They didn’t just call her a skank. That was just one word used.

    I don’t think she is a public figure. There are gradations of public figures, and although she has worked as a model, she has never sought public office, nor is her sexuality or personality part of any public controversy.

  25. In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistleblowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.

    Benefits notwithstanding, you can’t make an omelette without breaking eggs and anonymous free speech on the Internet is one such omlette. There is no such thing as free speech, there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. But often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people, in fact they are actually fueled by other people’s pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience….. is simply impossible.

    A concerted, focused and malicious Internet smear campaign can be as devastating for a person that relies on his or her reputation for employment as a fire can be for a farmer who loses his fields, barns, and livestock.

    Respectfully submitted by Michael Roberts. Internet Libel Victim’s Advocate.
    http://www.Rexxfield.com

  26. #26 Juicy Heart
    August 30, 2009

    The First Amendment doesn’t just establish the right of speech and expression without government interference, it also guaranties the right “to petition the Government for a redress of grievances.” It seems to me the judges ruling falls squarely within that: Cohen could not petition the government for her grievances against Port, as long as Port remained anonymous. I do believe the courts can, and should, protect the anonymity of speakers, in the situations where there is a societal interest in protecting the speaker, such as a whistle blower (white, blue, clerical or otherwise). But this should be a privilege granted by the courts, by weighing what is said, the likely hood of that speech occurring without anonymity and societies interest in that speech being made. I don’t think someone calling a model a “skanky ‘ho” comes close to passing that test. A civil society, IMHO, is reliant on people being responsible for their actions and words. Anonymity is the antithesis of this, and should only be protected where the the speech wouldn’t be made without anonymity AND there is a societal interest in the speech being made.

    Weather, or not, Cohen proceeds with the libel case, seems irrelevent. If her interest was to protect her reputation and the viability of her modeling career, and being able to point to who is making a speech is enough to do this, why proceed with the libel case? If Port feels “I feel my right to privacy has been violated.”(http://www.wired.com/threatlevel/2009/08/blogger-unmasked/) for being held responsible for statements she made in a public forum, and that speech promotes no greater societal interest; though fracking skank. This is a civil society.

  27. #27 Katkinkate
    August 30, 2009

    I think the privacy of web users identity needs to be protected to some extent, however it’s a bit rich to attack someone publicly under the safety of a pseudonym and expect Google to cover your ass.

    I’m sorry, I have an off-topic request. I’ve just finished reading “Sweet Poison” by David Gillespie and I am really interested in getting your opinions. Anyone out there read this book yet?

  28. #28 Gilga
    September 3, 2009

    @Screechy Monkey In that case you cited, the plaintiffs never proffered a dictionary definition of the word “skank”. I just did.

    Moreover, I believe that case can be distinguished because putting the word “skank” under a sexually provacative picture is much different than using it as part of a comedy bit on a morning zoo radio show which is what that case was about.

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