When someone calls my office and wants to sue somebody for libel or slander, assuming they manage to get through my phalanx of people devoted to keeping me insulated from time burglars, the first thing I say to them is, “You probably have no case.” I don’t wait to hear the facts. I don’t need to know their evidence. I know that statistically speaking, it just is not going to have merit. Yet threatening defamation suits is a growing tactic in the war on the new media.
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Defamation cases generally fail. And by “generally,” I mean almost all of them. I’ve never lost a libel case I’ve defended. Why are defamation cases so bad? Defamation is a unique tort because it involves publishing false and unprivileged negative information about someone. With the First Amendment’s free speech guarantees – you know, the ones that frustrate and irritate the left to no end when those of us on the right avail ourselves of them – defamation takes on whole new dimension you do not find in regular torts like negligence. There’s a tension between the right to speak and the right not to be lied about, and the courts generally err on the side of free speech. This is especially true in the context of political debates.
But that does not keep these lawsuits (and threats of lawsuits) from being potent weapons in the hands of those seeking to shut-down their political opponents – especially conservative ones. The trend appears to be growing – a Google search of “defamation blogger” yields 409,000 results. Without some action to restore reasonable protections for controversial speech, this trend could help make the wishes of the petty fascists out there come true by shutting down anything like an alternative voice to the mainstream media.
Opine that someone has been playing footsie with Islamic terrorists? Lawsuit threat. Mention some Hollywood hack in any way other than sycophantic flattery? Lawsuit threat. All this happens with stunning regularity.
Now, why are cases that almost always fail on the merits a threat? There are two reasons. First, they don’t always fail – sometimes the plaintiff wins. I know – I’ve won several million dollars for libeled clients. Of course, my people actually were libeled – that’s not just my view but that of the jury – and they were not media cases. The threat remains to new media folks, minor but real.
The secret is that the real problem is not the potential judgment but the defense. Lawyers cost money. A lot of money. And in the United States, you are generally stuck covering your own fees even if you win. NBC can pick up a platoon of lawyers’ tabs; how many bloggers want to fork over $400 an hour to some ambulance chaser to beat back a bogus defamation claim?
Before I go on, let me say that I am not offering any legal advice to anyone else who reads this, so do not rely on what I say to govern your actions. If you have specific questions, hire an attorney. I’m not your lawyer.
That out of the way, the first question is going to be, “But how can someone file a meritless lawsuit?” Well, they write a $355 check for the filing fee and type up a complaint. There’s no referee at the filing window – once that case is filed it is active until dismissed voluntarily or by a judge. The fact that some malcontent has no claim will not stop him or her from filing a lawsuit, often representing himself (a situation that is in many ways more difficult to deal with than defending against a lawsuit where the plaintiff has a lawyer).
So, put yourself in the position of the average blogger. Some tool decides he doesn’t like your shameless use of the First Amendment and files a lawsuit against you. He does it where he wants – you can be in South Carolina and the case can get filed in Alaska. So, now you not only have to defend, but you may have to do it far away. What do you do?
The big media companies call their insurers up and say, “We got served. Deal with it.” So, as a blogger, you call up… who? Well, you certainly call your homeowners insurer. Your policy may or may not cover it – always ask. Remember, liability insurance does much more than pay a judgment (up to the policy limits). It pays for your defense – the insurance company hires and pays lawyers to defend you.
But you might not have coverage, so you might consider a media policy. Michael Born, Senior Vice President and Underwriting Manager at ThinkRisk, a media insurer, believes that, “as more people use new media, there are going to be more lawsuits.” His company insures individual writers – for a premium of $2,500 per year. Born, who is an experienced attorney who used to defend defamation cases himself, explains that the cost is a reflection of the risk – much of it the cost of providing a defense. Defending freedom of speech is expensive. If you are a controversial blogger and you can swing it, consider getting a policy.
But for many online writers, $2,500 is a big hunk of money. They are left without a practical means to defend themselves and therefore many simply have no choice but to default – not respond to the complaint and let the court enter judgment against them. Most of these would be “empty” judgments – essentially uncollectable because the writer has no real assets. But it’s still no fun having a $20,000 judgment in the Third District Circuit Court of Wyoming on your credit report. So what do you do?
First, don’t defame people – do not make knowingly false statements of fact about others. If you are going to say something harsh, have some facts to back it up. If called on it and you are wrong, promptly correct what was inaccurate. Make clear what you are asserting as opinion (which is generally protected) as opposed to what you are asserting as fact (which can be subject to a defamation claim). In other words, practice the kind of basic good journalism principles the MSM has largely forgotten.
Now, if you get sued and you choose to fight, in many places you can avail yourself of a SLAPP law. “SLAPP” means “Strategic Lawsuit Against Public Participation.” They are designed for cases where one side is trying to use the law to chill the defendant’s exercise of free speech rights. SLAPP laws allow you to defeat these cases right up front – no jury, just a judge – and they award the SLAPP victim his legal fees.
Of course, the same problem “empty judgment” applies in reverse – most of the clowns suing for libel do not have any money either and all you might end up with is your own empty judgment. If you want to go through the hassle of garnishing the creep’s barista paycheck from Starbucks, you can, but it’s hardly an economically sound investment.
So, what to do about this trend? This year, the Congress and the President actually took a huge step against a similar problem, international “libel tourism,” by enacting the SPEECH Act. See, countries like the United Kingdom often have much, much more plaintiff-friendly libel laws since they have no First Amendment, so every scumbag, terrorist-hugger, and dictator would rush to file there and get a judgment. The SPEECH Act simply forbids enforcement of a foreign defamation judgment in a US court unless it’s a First Amendment compliant – which kind of takes all the fun out of it for the bad guys.
We need the coming Republican Congress to take the next step – not just for conservative writers but for all writers who want to be assured of their right to speak and write freely. We must make clear that defamation actions are disfavored in light of our free speech tradition by stacking the deck so that while truly defamed people can recover, the presumptive remedy for offensive speech is more speech.
Step One is to end “libel tourism” within the United States and give the defendant in a libel suit the right to transfer any defamation action filed anywhere in the United States to the defendant’s local federal district court. No more victory by distance.
Step Two is to set out the right to make a SLAPP motion in federal law – and to force those wishing to oppose a SLAPP motion to post a bond sufficient to cover the defendant’s defense costs before opposing it. Hey, if you have a real libel case, fine – then you can show your belief in your cause by putting your money where your mouth is and writing a check.
Defamation certainly exists, but in the United States we err on the side of the First Amendment. The promiscuous threat of defamation suits is an obnoxious tool most often employed by those who have the least respect for our values to shut down dissent and silence those who would expose them. That’s intolerable.
The Founders were wise men, and the First Amendment they provided us means that political debates are properly resolved in the political arena. The law properly rejects attempts to punish and silence political opponents through the power of the courts. We need to strengthen it to ensure freedom of speech and of the press remain despite the best efforts of our opponents. We need to make sure defamation extortion no longer pays.