Dispatches from the Creation Wars

Questions on the Limits of Liberty

A couple weeks ago, longtime reader and commenter Jim Benton emailed me a set of questions about the limits of liberty. I told him I would give them the attention they deserve and answer them as competently as I can. Here are those questions and my attempt to answer them. They aren’t complete answers, of course; others may well provide more compelling reasons than I do for my position.:

1: Free speech advocates do differ on details. Thus Justice Black argued that the 1st Amendment should make suits for slander and libel unconstitutional. Without getting into your opinion of Justice Black — which I don’t know — do you accept or reject this position, and why?

My opinion of Justice Black is generally very favorable, but this is an opinion I was unaware of. I would disagree with him on this because I think our libel and slander laws are drawn narrowly enough that it provides for consequences only for that speech that A) has the clear intent of harming another person’s rights and interests and B) actually does so. If our libel laws were as broadly worded as the UK’s, on the other hand, I would oppose them.

2: I feel that, because of historical factors and particularly the result of this sort of speech, three specific types of rhetoric MAY deserve less protection than others — some yes, but not as much. I refer to rhetoric that is anti-black (not ‘racialist’ but specifically anti-black), anti-gay, and anti-semitic rhetoric. These have so consistently lead to violence against the specific groups that they may be in a special category. (And other negative statements do not have a similar record, even if some specific examples of violence can be imputed to them, such as anti-Catholic rhetoric, so comparing them would be a false equivalency.)

I think this is a rather arbitrary distinction. Catholics have been the victims of violence in this country, as have Mormons, Jehovah’s Witnesses and other religious groups. And that violence was just as often accompanied by rhetoric against those groups; indeed, how could it not be? Those who seek to commit violence based on prejudice rarely do so without first announcing that prejudice in some manner. But of course, most people who have prejudices do not commit violence, so it’s difficult to make a compelling argument that prejudiced speech leads to violence, rather than sometimes, but only sometimes, accompanying it.

I have several reasons for opposing laws against so-called “hate speech.” First, because any attempt to draw a line between which group is to be protected and which groups it is okay to express one’s hate toward is bound to be arbitrary, as I think your formulation above was. Second, because hated minorities, of all groups, should be profoundly aware of the dangers of giving the government the power to decide which ideas may be expressed and which may not.

Remember that we are only a couple generations removed from a time when advocating the normalcy of homosexuality could get you thrown in jail in many jurisdictions in America on charges of corrupting the public morality. Remember also that once we give that power to government, the content of such laws is determined by legislative majorities, not minorities. And remember that the nature of government is to grow inexorably beyond the limits placed upon it; laws which are intended to only do X often end up doing X, Y and Z, often to our detriment.

We have some experience with such hate speech laws already in this country, principally on college campuses. That experience shows clearly the validity of this last argument I made above. Rules that were initially intended only to prohibit racist speech have been used to attack speakers and organizations that oppose affirmative action, for example, or who advocate laws to restrict illegal immigration. They are almost always used by those in the political majority on a college campus to try and shut down the speech of those in the political minority.

Time and time again we’ve seen campus rules against “demeaning” or “exposing to vilification” a person or group used to punish those who expressed what was an unpopular viewpoint within the campus community. Such rules inevitably get broadened in scope so that they end up punishing anyone who is to be motivated by bias rather than those who explicitly express such bias. Lastly, I would argue that as a practical matter we should oppose such laws because we should want people to express such ideas publicly, if for no other reason so we know who they are and what they are doing. Outlawing bigoted speech will not outlaw bigotry, it will only make it harder to identify and track.

3. Coughlinites in the 30s used a specific tactic. Sellers of SOCIAL JUSTICE would see a Jew coming near them and specifically make inflamatory comments, hoping to provoke the Jew into reacting to them and expecting this would lead their followers to beat the Jew — and it worked, many times. Some people consider that the Westboro people do the same thing, only they respond with lawsuits rather than physical violence. Is there any way to counteract these tactics other than counseling the hearers to remain calm?

I think the notion that the Westboro Baptist Church is doing the same thing is rather silly. If they’re really trying to provoke a response to spark a fight, they’re the ones who are gonna end up bleeding, not those they provoked. Wherever they protest they are counter-protested by Rolling Thunder, a group of biker vets. They are hopelessly outnumbered everywhere they protest and if they provoked anyone, it’s not the others who would get beat up, it’s them.

One way to counteract those tactics is exactly the way Rolling Thunder has done it – by showing up and outnumbering them. We’ve seen the same thing happen with KKK rallies here in Michigan. We give them permits to hold their rallies and then 5 times as many counter-protesters show up to show them several things – that they are a tiny minority and that society will not be cowed by their bigotry and history of violence. Indeed, I would argue that this is one of the best things about allowing such groups to preach their hate openly. It galvanizes opposition to them and it motivates people to band together to show them that we’re not intimidated by them or scared of them. As the old saying goes, sunshine is the best disinfectant.

4: On the billboard case you mention recently, how do you distinguish this from the question of college and other newspapers accepting ads from Holocaust deniers? If a government official saw a holocaust-denial ad and told the paper that if they ran the ad again, the state or city would pull its legal advertising because they chose not to be associated with such comments, would you feel they were justified? — I am taking the position that, in ad placement they are acting as — in effect — a private company and not a governmental agency. Again, do you agree, and if not, how do you distinguish the case? Equally, does a college have a right to sanction a school newspaper that ran such an ad?

These are really narrow questions. We know that the government cannot punish a private company for doing something that is constitutionally protected, but that doesn’t mean that the government has to keep giving their business to a company either. There are many laws around the country requiring the government not to do business with companies or groups that engage in discrimination and such laws are constitutional. I would make a distinction, though, between a government pulling their own business from the billboard company or newspaper, and the government taking legally punitive action against them.

5: We also differ on the question of ‘teaching the controversy’ on evolution vs. creationism. I feel that the BEST way of teaching evolution (on a HS or JHS level) would be to bring up the controversy and have part of the class research each position. By developing the evidence that shows how nonsensical creationism is, I feel that the students would, far better, teach themselves about evolution. I also feel that the current way puts students in a position of saying “Teacher said; Preacher said” without challenging them to discover which is right. Comment?

I think this sounds like a very compelling position unless one is aware of how little evolution is actually taught in high school science classes. In the vast majority of high school biology classes, in a full semester they spend less than a week on evolution. We can’t even get enough time in classrooms to adequately teach the most basic things about evolutionary biology, much less try and introduce alternatives to it. I think in a college course, this would be a great idea; in high school as its now taught, it would only water down the already vastly insufficient instruction in evolutionary biology.

6: (This story was, in fact, the final push to get me to write this.) JEWS ON FIRST has run a story on ‘ex-gay’ groups demanding ‘equal time’ and even clubs equivalent to GSAs, and even suing to achieve this. Would you support or oppose such suits, and if so, why?

I would say the same thing I’ve said when it comes to the anti-gay Day of Truth in response to the pro-gay Day of Silence: they have exactly the same constitutional right to express either opinion and to organize for that purpose. Under the Equal Access Act, students who wanted to form such a group would have exactly the same right to do so that the GSA clubs do.

Comments

  1. #1 Chuck
    February 26, 2007

    Excellent answers, if I may say so.

  2. #2 Wes
    February 26, 2007

    2: I feel that, because of historical factors and particularly the result of this sort of speech, three specific types of rhetoric MAY deserve less protection than others — some yes, but not as much. I refer to rhetoric that is anti-black (not ‘racialist’ but specifically anti-black), anti-gay, and anti-semitic rhetoric. These have so consistently lead to violence against the specific groups that they may be in a special category. (And other negative statements do not have a similar record, even if some specific examples of violence can be imputed to them, such as anti-Catholic rhetoric, so comparing them would be a false equivalency.)

    People might think I’m strange for saying this, but if someone harbors racist feelings or beliefs, I would prefer that they come out and say them openly, without fear of punishment, rather than keep them bottled up inside. Better to get those feelings out in the open where they can be openly criticized and scrutinized, rather than letting them fester under the surface of society.

    You can force someone not to say certain things, but you can’t force them not to believe it anyways. If we restricted racist speech, all that will do is force these sentiments underground and create resentment. It would also have the effect of creating sympathy for them, since they could portray themselves as “martyrs” (the Holocaust deniers going to jail in Austria are a good example).

    I say let the racists, bigots, sexists, anti-semites, fundamentalists, and whatever else say whatever the hell they want to say. They’ve got free speech–let ‘em use it. But I’ve got free speech too, and I’m free to criticize them all I want.

    The only kind of “hate speech” (does this term sound Orwellian to anyone else?) I could see being reasonably censored would be direct incitement of violence. If someone is standing before a crowd and commanding them to start killing people or burning down buildings, then it’s okay to call in the police and stop the guy.

  3. #3 Jason
    February 26, 2007

    Wes,

    The only kind of “hate speech” (does this term sound Orwellian to anyone else?) I could see being reasonably censored would be direct incitement of violence.

    So you’re against all libel laws? Maybe you think only criminal laws could be considered to actually “censor” speech, but libel law still imposes penalties for certain kinds of speech that is deemed to cause harm, even if the harm is limited to damaging a person’s reputation and public standing.

  4. #4 Ed Brayton
    February 26, 2007

    But libel laws do not do so because of the opinion expressed. The libel laws are drawn very, very narrowly and are very difficult to prove (intentionally, so as not to punish the expression of an opinion). It’s not enough to show that one is bothered by what someone said; in order to prove libel, one must show that the person deliberately and with malice spread information they knew to be false and that it actually did specific damage to the person it was aimed at (cost them a business deal, ruined relationships, etc).

  5. #5 Prup aka Jim Benton
    February 26, 2007

    Ed: many more comments later, but about #6, the ‘ex-gays were demanding, and suing for, equal classroom time. If you accept this, how can you oppose the same demand from Creationists. As for the clubs, given that most student activities require a teacher to be assigned to them, do you accept this for ex-gay clubs? Would you accept — with the same assumption about a teacher — a suit demanding any school with a ‘biology’ club also institute a ‘creationism’ club (or an “ID” club) with equivalent facilities, expenditures, and teacher participation? If not, how to you distinguish the two cases?

    (Much more later.)

  6. #6 Tom
    February 26, 2007

    My experience suggests that Jim Benton’s suggestion on “teaching the controversy” re: evolution doesn’t work well in practice. When I was in high school, we had formal evolution vs. creationism debates in biology class – and, because my high school was not run by anti-intellectual Bible-thumpers (it was run by Quakers), I think the exercise was intended to demonstrate that creationism is nonsensical. But it didn’t end up working that way.

    See, at that point in our education none of us had any real understanding of how evolution works. I got stuck on the creationism side, and with the help of one Phillip Johnson book I was able to demolish my pro-evolution opponents – not by being right, obviously, but just by being a better debater than the lazy high-school kids I was up against.

    A further disadvantage of any high school exercise that asks kids to research creationism is that it means you have to have creationist books in the school library for kids to read. Which means giving creationists money and credibility they haven’t earned.

  7. #7 Wes
    February 26, 2007

    Wes,

    The only kind of “hate speech” (does this term sound Orwellian to anyone else?) I could see being reasonably censored would be direct incitement of violence.

    So you’re against all libel laws? Maybe you think only criminal laws could be considered to actually “censor” speech, but libel law still imposes penalties for certain kinds of speech that is deemed to cause harm, even if the harm is limited to damaging a person’s reputation and public standing.

    I was talking about hate speech, and whether it should be censored. I’ve never really thought of libel as falling under “hate speech”. Maybe it does, but I didn’t realize it. What people usually call “hate speech” is directed at broad groups like genders or races, whereas libel is usually directed at individuals. Also, the purpose of libel is to do someone financial or political damage, whereas the purpose of most “hate speech” is to foment hatred itself. They seem like two different things to me.

    Ed knows more about the law than I do, so I’ll defer to his opinions on libel laws. Frankly, I don’t have a very clear understanding of how they work. I’ll just leave it at saying that when I said “hate speech” I didn’t have libel in mind. I had the typical neo-nazi or fundamentalist Christian in mind.

  8. #8 Tom
    February 26, 2007

    about #6, the ‘ex-gays were demanding, and suing for, equal classroom time.

    The idea that anyone, or any idea, has a right to “equal time” in the classroom is obviously unworkable and nonsensical. The logical result of that proposition would be that equal time should be devoted to the Pledge of Allegiance and to saying bad things about the U.S. – perhaps by reading Chomsky or D’Souza? Or that PE classes have to give equal time to all sports, including football, hockey, lacrosse, badminton, foosball, polo, cricket… I could spend all day thinking up equally absurd results from this “equal time” principle.

    demanding any school with a ‘biology’ club also institute a ‘creationism’ club

    Biology and creationism aren’t really opposites. Creationism is a set of (nonsensical) ideas about biology. But regardless of this distinction, it seems obvious to me that students who want to have a creationism club ought to be able to do so, just like they should be able to have a club around any other stupid idea, because the only alternative would be to have legislators decide which ideas kids are allowed to have clubs around. The governing principle should be freedom of thought and association, not equal time.

  9. #9 Gretchen
    February 26, 2007

    The only kind of “hate speech” (does this term sound Orwellian to anyone else?)

    Indeed…I’m really starting to hate the word “hate” for precisely that reason. It can be (and sometimes is) applied to any negative comment or criticism of a group or position. When does opposition become “hate”? Is it required to be rational– and if so, who gets to decide what’s rational and what’s not?

  10. #10 Jason
    February 26, 2007

    The fact that speech may require “actual malice” to qualify as libel means that we already have a form of hate speech law, since the exact same speech would be protected were it not for the “actual malice” on the part of the speaker. And the First Amendment protects “speech,” not just “opinion.” Speech that expresses an opinion may be just as harmful as speech that makes a claim of fact, and the speaker may be equally malicious in both cases.

  11. #11 Alan B.
    February 26, 2007

    The teach-the-controversy crowd says, present the arguments and let the children decide. The problem is that we give students very few skills to do that. The current philosophy (eg. No Child Left Behind)is to teach kids what to think, not how to think. I am not opposed to teaching controversies, but first we have to teach more basic concepts like epistemology, empiricism and scientific method.

  12. #12 AnneS
    February 26, 2007

    Jason: Re: “actual malice” in defamation law

    I think you misunderstand what actual malice means in this context. It doesn’t mean an intent to harm or insult someone. It means knowledge of or reckless disregard for the falsity of the statement. Moreover, “actual malice” is only required for defamation actions brought by public officials and (usually) public figures. All other actions only require that the statement be untrue, cause actual damage (unless it is “per se” defamatory), and that there be some fault (negligence counts) on the part of the tortfeasor.

    IN any event, the other elements that separate defamation action from a putative “hate speech” action are (1) defamation (unless it’s “per se” requires actual, tangible damage (again, emotional, psychological, or mere reputational damage doesn’t count), AND (2) it has to be a statement made about an ascertainable individual, not a group (i.e., I can’t sue someone for saying all Episopalians are crooks). IT is a very, very narrow cause of action both for First Amendment reasons and for reasons of judicial economy – could you imagine the disaster in the courts if every negative, even vile, statement about a group was actionable?

  13. #13 kehrsam
    February 26, 2007

    Almost everywhere it is used in law, the word “Malice” is a term of art, and not given it’s dictionary sense. In the case of Defamation, Malice means something like, “Intening to harm.” So to say that “actual malice” is required for a charge of defamation is merely saying that both parts of the intentional tort have been met: There is action (the harmful statement) and volition (the intent to harm).

    This does not define hate speech, for two reasons. First, negligent harmful speech remains protected most of the time. Second, truth is usually a defense even where malice can be shown.

    Some jurisdictions have a “False Lights” tort available, where even true statements might be punishable, but only upon a showing that the overall presentation of the defamation was such as to make the truth claims irrelevant. Think Dr. Goebbels.

  14. #14 ArtK
    February 26, 2007

    The problem with #5 is, that “teach the controversy” isn’t code for “here’s evolution, it’s cool and very, very well supported — and over here we have ID which is lame and nothing but a tissue of lies and deceptions.” It’s code for “evolution is wrong and we want our lies and deceptions put into the curriculum as fact.”

  15. #15 Dave
    February 26, 2007

    I have no problem with teaching the controversy. but it shouldn’t be in biology, it should be in a debate class or some similar venue.

    Cheers,

    Dave

  16. #16 Ahcuah
    February 26, 2007

    Regarding teaching evolution in high school biology, I recently had cause to take a look at my son’s biology book. Now, this is an AP course, so it is a cut about the normal.

    The book had a whole unit (of 3 chapters) on evolution, and another unit describing the different classifications of life, and this unit heavily relied on evolution, too. Needless to say I was quite pleased. (I am in a southeast suburb of Columbus, OH.)

    A small, related anecdote: Last year my daughter was taking the same class, and the day they were having their test on evolution, they had a substitute teacher. The substitute they happened to get that day, though, was a religion graduate. He spent the first 20-30 minutes of the period railing against evolution, instead of letting the kids get started on their test. The kids finally told him to shut up and let them get started (you get that from honors students, sometimes).

    Many of the kids later went to the administration and complained–that guy will not be invited back.

  17. #17 Ed Brayton
    February 26, 2007

    Prup wrote:

    Ed: many more comments later, but about #6, the ‘ex-gays were demanding, and suing for, equal classroom time. If you accept this, how can you oppose the same demand from Creationists.

    Ah, sorry, I misunderstood. This is an entirely different question and the answer is therefore different. When it comes to homosexuality, I think schools should teach only a few basic facts: it exists, it has always existed, it will always exist, and you shouldn’t treat someone who is gay differently merely because of that. If that conflicts with their religious views, that doesn’t bother me anymore than teaching evolution, the big bang or the germ theory of disease conflicts with some people’s religious views.

    As for the clubs, given that most student activities require a teacher to be assigned to them, do you accept this for ex-gay clubs? Would you accept — with the same assumption about a teacher — a suit demanding any school with a ‘biology’ club also institute a ‘creationism’ club (or an “ID” club) with equivalent facilities, expenditures, and teacher participation? If not, how to you distinguish the two cases?

    I think you have two different questions here. A suit demanding that any school with club A also have club B is absurd; non-curricular clubs are organized by the students, not the school. However, if the question is whether students should be allowed to form a creationist club, the answer is yes.

  18. #18 noself
    February 26, 2007

    Actually group libel has been declared non-constitutional by the US Supreme Court as an extension of libel and it has never been overruled.

    Which is not to say that First Amendment Jurisprudence today will necessarily decide the case similarly. Kinda like Buck v. Bell as a weird relic of due process jurisprudence.

  19. #19 AnneS
    February 26, 2007

    noself – Interesting. I assume you’re referring to Beauharnais v. Illinois, 343 U.S. 250(1952) (subject of quick Google search – I claim no vast knowledge of 1st Amm. law). The law in that case made it a criminal offense to “Defame” a race or class of people. From my Con Law and Advanced Torts, I’d lay money that the precedent is pretty worthless, at least as regards criminal cases and probably as regards civil cases where the claimed defamation was an opinion (“I think the Jews are evil blood suckers”) vs. a claimed factual allegation (“Jews sacrifice Christian babies and suck their blood”, to name one of the most notorious group libels). Certainly it seems to run right into RAV v. City of St Paul, 505 US 377 (1992), where the USSC overturned a law prohibiting the display of “hate” symbols. I also think it would run into a standing problem as regards civil cases, since the Court has tightened up on standing over the last few decades.

    I could certainly imagine group defamation where a group or a member of a group would have standing to sue, but the facts would have to be just right. The group/individual would have to show that the defamatory statement itself caused actual damage – again, not emotional distress – which would be hard to do if someone were just verbalizing a racist/sexist/other bigotted belief that many people already hold.

  20. #20 Jason
    February 26, 2007

    AnneS,

    I’m not sure what your point is. If “actual malice” can be present even if the speaker does not intend harm and even if he exhibits merely a reckless disregard for the truth, then the libel standard is broader than it would be if it required a showing of intent to harm or knowledge that the claim was false. The point is that whether the speech qualifies as libel depends in part, like hate speech, on judgments about the attitude of the speaker towards his subject.

  21. #21 AnneS
    February 26, 2007

    Jason,

    My point is that “Actual malice” doesn’t mean what you think it means. It is, as kehrsam said a term of art, which in the context of defamation law means knowledge of or with reckless disregard for the falsity of the statement. Intent to harm is not a required element in most states, although it would probably be grounds for punitive damages. Malice in the dictionary sense is absolutely irrelevant. A plaintiff doesn’t have to show anything about the defendant’s attitude towards her, only her attitude (reckless disregard or knowledge) towards the falsity of the statement at issue.

    In any event, even this version of “actual malice” is only required for defamation actions brought by public officials and public figures.

  22. #22 Ed Brayton
    February 26, 2007

    Jason, as usual, is missing the point completely. The libel laws in the US require that there be actual harm done and that the content of the speech be false. The further emphasis on malice is merely an additional protection for free speech to prevent someone from being blamed for passing on information that they didn’t know was false. As at least two attorneys have explained in this thread above, the term “malice” is a term of art in this context, not a colloquial term. It means that one had to knowingly and intentionally passed on information they knew was false for the purpose of defaming someone. It’s the falsehood and the actual harm done that matters most; the malice requirement is simply an additional protection for free speech, not a justification for restricting any speech that shows malice. When I write that Jerry Falwell is a lying piece of shit, I say it with obvious malice (in the colloquial sense, not the legal sense in this context); that hardly makes it illegal speech.

  23. #23 Jason
    February 26, 2007

    AnneS,

    My point is that “Actual malice” doesn’t mean what you think it means.

    Then your point is wrong. I didn’t assume that the term “actual malice” as used in libel statutes is synonymous with “malice” in the conversational sense. My point, as I said, is that libel law involves judgments about the attitude of the speaker towards his subject, like “hate speech” laws.

    It is, as kehrsam said a term of art, which in the context of defamation law means knowledge of or with reckless disregard for the falsity of the statement. Intent to harm is not a required element in most states

    You misread Kehrsham’s post. He said:

    In the case of Defamation, Malice means something like, “Inten[d]ing to harm.” So to say that “actual malice” is required for a charge of defamation is merely saying that both parts of the intentional tort have been met: There is action (the harmful statement) and volition (the intent to harm).

    You say that that intent to harm is not required for there to be “actual malice” or “defamation,” and kehrsham says it is required. Neither of you give any sources to support your legal claims.

  24. #24 AnneS
    February 26, 2007

    Jason,

    Please see New York Times v. Sullivan (1964), where the Supreme Court ruled that a public official needed to show actual malice, using the definition I gave, in order to maintain a cause of action for defamation. (Masson v. New Yorker (1991) extended this rule to public figures generally.) Gertz v. Welch (1974) clarified that private individuals didn’t need to show actual malice to maintain a cause of action – as a federal constitutional matter, they only need to show fault, which in the tort context means anything from neglect on up to intent. This is in contrast to the rule from Ye Olde English Common Law, where libel (and possibly slander) were strict liability torts.

    With respect to kehrsam and Ed, they mistated the standard required, as a federal constitutional matter. Intent to harm is not required. The attitude towards the subject of the statement or the statement itself is completely irrelevant. It is the tortfeasor’s “attitude”, better described as “degree of fault” or (to borrow from criminal law) “mens rea”, towards the FALSITY of the statement. If they know the statement is false or show reckless disregard for the falsity of the statement (i.e. refuse to check despite being put on notice that the accuracy is in dispute), they can be found liable for defamation. To make it clearer, if a reporter writes a story declarin Tom Cruise to be gay, after Mr. Cruise tells him he isn’t, it doesn’t matter if the reporter thinks that the declaration is a complement and that it won’t harm him – Mr. Cruise will still get the reporter for defamation (absent additional facts) because the reporter showed reckless disregard for the falsity of the statement.

    Hate speech also has nothing to do with the attitude of the speaker towards the subject or the statement. It is defined by the content of the speech. Defamation, by contrast, doesn’t concern itself with the content per se, only with whether the statement was untrue, whether the speaker had the requisite degree of fault, and whether harm was caused.

    (REgarding my previous statement about opinions not being actionable. I was apparently wrong as a strict, federal constitutional matter – see Milkovich v. Lorain Journal (1990). It would still be hard to actually maintain a cause of action – there are privileges that apply to expressions of political and religious ideas and showing harm or that anyone believed the statement would be very difficult. But the Supreme Court maintains that there is no general bar to maintaining defamation causes of action based on opinion statements.)

  25. #25 kehrsam
    February 26, 2007

    AnneS is correct, of course. I was assuming a public figure was involved, as otherwise the standard is quite loose.

    For Jason, intent can be inferred from reckless or negligent statements. My earlier statement re “intending to harm” should have been read in this light. I haven’t studied defamation since my first semester in law school, so I apologize if I am a bit sloppy on the language!

  26. #26 Jason
    February 26, 2007

    AnneS,

    American libel law is obviously much broader than just federal constitutional cases. As a matter of federal constitutional law the attitude of the speaker to the subject may be irrelevant to libel, but that is certainly not true of all libel law in the U.S. For example, the California civil code defines libel as follows:

    Libel is a false and unprivileged publication by writing,
    printing, picture, effigy, or other fixed representation to the eye,
    which exposes any person to hatred, contempt, ridicule, or obloquy,
    or which causes him to be shunned or avoided, or which has a tendency
    to injure him in his occupation.

    The penalties provision of the statute uses the term “actual malice,” which it defines as follows:

    “Actual malice” is that state of mind arising from hatred or
    ill will toward the plaintiff

  27. #27 AnneS
    February 26, 2007

    Jason – I am well aware that some states have more restrictive laws regarding defamation (BTW, this is the correct term, as it covers both libel and slander). The subject of Ed’s post was federal constitutional law. If you want to discuss state by state, I’m afraid I’ll have to bow out. I’m only familiar with Maryland and Ohio.

    (kehrsam – I have the advantage of having my old outlines on my computer. That, and its all much fresher for me – I’m in my last semester of law school and can’t even be called a baby lawyer yet, what with the bar yet to pass.)

  28. #28 Jason
    February 26, 2007

    Another example of existing American law in which the attitude of the defendant towards his victim is relevant is hate crime law. Hate crime statutes provide for enhanced penalties for criminal acts with certain types of motive (“hate”). Hate crime laws have also been attacked on First Amendment grounds, as a violation of freedom of speech and/or thought, but the Supreme Court rejected that argument.

    Ed says he opposes “hate speech” laws in part because they draw what he considers to be arbitrary lines “between which group is to be protected and which groups it is okay to express one’s hate toward.” But the same kind of claim could be made about hate crime laws and indeed about dozens or hundreds of state and federal and local anti-discrimination statutes, including the federal Civil Rights Act.

  29. #29 kehrsam
    February 26, 2007

    Ed says he opposes “hate speech” laws in part because they draw what he considers to be arbitrary lines “between which group is to be protected and which groups it is okay to express one’s hate toward.” But the same kind of claim could be made about hate crime laws and indeed about dozens or hundreds of state and federal and local anti-discrimination statutes, including the federal Civil Rights Act.

    You are correct, Hate Crime laws are constitutional. Where Ed (and I, for that matter) disagree is whether they are a good idea.

    My problem is that (almost) all crimes have a motivation behind them. With a few select exceptions such as homocide, these motivations do not become part of the deliberative process once intent has been determined.

    To my mind (and I have spent my time as a defense lawyer, not a prosecutor) this is a good thing. The only possible reason for the prosecution to introduce intent into a case (beyond proving mens rea) is to inflame the jury. Even if presented only in the penalty phase (and it can’t as a practical matter be thus restricted) the evidence regarding hate is far more prejudicial to the Defendant’s position than the “enhanced” sentencing would suggest.

    As to the Civil Rights Act being comparable to a hate crimes law, I’m afraid you’ll need to explain that more fully. I don’t see any connection. Yes, the CRA changes certain presumptions given the jurisdiction. That’s really not the same thing.

  30. #30 Jason
    February 26, 2007

    The subject of Ed’s post was federal constitutional law.

    I’m not sure if you mean the blog post itself or one of Ed’s comments here, but none of them contains any suggestion that it is referring to federal constitutional law. In fact, his first comment refers to “libel laws” and his second to “the libel laws in the U.S.” (plural). This isn’t surprising, since the discussion of libel laws was instigated by a comment of mine in which I referred to “all libel laws.”

  31. #31 AnneS
    February 26, 2007

    Jason – The subject of the original post was the 1st Amendment. Most people understand that to mean federal constitutional law. The restrictions he, kehrsam, me, and others have discussed all relate to the boundaries imposed on state defamation actions by the 1st Amendment. As in all areas of state law claims, the States can prescribe more limitations.

  32. #32 Jason
    February 26, 2007

    kehrsham,

    My problem is that (almost) all crimes have a motivation behind them. With a few select exceptions such as homocide, these motivations do not become part of the deliberative process once intent has been determined. To my mind (and I have spent my time as a defense lawyer, not a prosecutor) this is a good thing. The only possible reason for the prosecution to introduce intent into a case (beyond proving mens rea) is to inflame the jury. Even if presented only in the penalty phase (and it can’t as a practical matter be thus restricted) the evidence regarding hate is far more prejudicial to the Defendant’s position than the “enhanced” sentencing would suggest.

    I don’t really understand this argument at all. The idea behind hate crime laws is that crimes with certain kinds of motive–generally, motives arising from hatred or animosity on the basis of race, sex, religion or sexual orientation–are more serious than crimes involving the same act but a different motive and therefore deserve a harsher penalty. There is nothing novel or unusual about using motive in this way. It has always been considered a legitimate factor in determining the appropriate penalty for a crime. Hate crime laws just explicitly write that consideration into the statute itself instead of leaving it completely to the discretion of judges and juries.

    As to the Civil Rights Act being comparable to a hate crimes law, I’m afraid you’ll need to explain that more fully.

    Anti-discrimination laws (such as the federal Civil Rights Act), hate crime laws, and the proposed hate speech laws that Ed opposes all draw the kind of line that Ed considers “arbitrary.” They all make legal distinctions on the basis of specific, enumerated characteristics, typically race, sex, religion and (less often) sexual orientation.

  33. #33 Jason
    February 26, 2007

    Jason – The subject of the original post was the 1st Amendment.

    No it wasn’t. The subject of the original post was “Questions on the limits of liberty” and as that title suggests most of post consists of a general discussion of restrictions or proposed restrictions on various kinds of speech.

  34. #34 AnneS
    February 26, 2007

    Jason – Scroll to the top of the page, read the 1st question in the original post. It is about whether the 1st Amendment bars suits for libel and slander (collectively “defamation”). When anyone here was discussing defamation, we were responding to that portion of the post. THere’s a good reason for that. The Constitution’s limits provide an outer bounds for ALL U.S. state defamation actions. Othwerwise, we talk at cross purposes, since there are (theoretically) fifty different standards for defamation actions. I say theoretically because it is a fact that in the VAST majority of states, intent to harm is absolutely irrelevant to establishing a cause of action for defamation. It can be helpful, it can let you get punitive damages, it may even let you collect damages in the absence of actual damages in some states, but it is nevertheless totally irrelevant to the basic cause of action.

  35. #35 AnneS
    February 26, 2007

    Should have written “. . . in the VAST majority of states ATTITUDE TOWARDS THE PLAINTIFF OR SUBJECT MATTER OF THE STATEMENT is absolutely irrelevant to establishing a cause of action for defamation.” And in case you need a source, please see the Restatement (Second) of Torts, which reflects the general state of the law in the 50 states.

    (Never post late at night.)

  36. #36 kehrsam
    February 27, 2007

    Anti-discrimination laws (such as the federal Civil Rights Act), hate crime laws, and the proposed hate speech laws that Ed opposes all draw the kind of line that Ed considers “arbitrary.” They all make legal distinctions on the basis of specific, enumerated characteristics, typically race, sex, religion and (less often) sexual orientation.

    Those differences do exist, and sometimes the law is cognizant of this. What’s more, the Civil Rights Act (and preferential hiring policies) are specifically tailored to be temporary solutions until past wrongs have been atoned. That is completely different from generic hate crime laws or speech restrictions.

    In any case, CRA is not the topic of this thread. We were discussing defamation, inter alia.

  37. #37 Jason
    February 27, 2007

    kehrsham,

    Those differences do exist, and sometimes the law is cognizant of this. What’s more, the Civil Rights Act (and preferential hiring policies) are specifically tailored to be temporary solutions until past wrongs have been atoned. That is completely different from generic hate crime laws or speech restrictions.

    Hate crime and hate speech laws could obviously be “tailored to be temporary” just like any other law could be. The federal Civil Rights Act that made private discrimination on the basis of race a federal crime is now 43 years old and as far as I’m aware contains no expiration clause, so I nothing “temporary” about it. It would have to be repealed by congress or struck down by the courts to no longer be in effect.

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