Blogging and libel/defamation

Last week the Daily Herald published an editorial related to a libel lawsuit filed by a court reporting firm against a court reporter who started a blog to complain about not being paid by the firm. The specific facts of that case will apparently be worked out in court, but I think there are a few things worth commenting on from the editorial, for the sake of some education.

The editorial begins:

Those in the “old” media, more than a little familiar with the intricacies of libel and slander law, knew it was bound to happen. A blogger has been sued for libel in Kane County’s 16th Circuit Court.

Perhaps this is a first in Kane County, but its nothing new nationwide. Bloggers have been sued, or threatened with suit, many times before. Only an extremely small number have worked or won.

Despite the apparent belief that those using the Internet can say anything without consequence, those with more experience knew individuals would tolerate the besmirching of their names and reputations for only so long before putting up a fight.

A large number of cases filed against bloggers typically have the goal of silencing their critics; of abridging First Amendment rights. And courts have regularly sided with bloggers in these cases.

While it is true that those who feel that they can say anything on the Internet are wrong, there seems to be a great amount of levity given to those who speak their opinion, and whether the target of criticism is a public or private person. This goes for “old media” as well as “new media” such as blogs. (In fact, the Supreme Court has ruled that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”)

Political speech is given the most leeway, so as to not suppress freedom of expression. That does not mean that someone can spread something that is “verifiably false”, such as saying that someone is guilty of a crime when they are not. But, an example from a real case will give some info as to how much can be tolerated:

A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

This California case also rejected a claim that the defendant linked the plaintiffs’ names to certain web addresses with objectionable addresses (i.e. http://www.satan.com), noting “merely linking a plaintiff’s name to the word “satan” conveys nothing more than the author’s opinion that there is something devilish or evil about the plaintiff.”

So, what was my “take away” from the editorial? That folks like me were being given a little bit of “notice” to watch it.

But, I write about public figures, backing up my conclusions with as much information as a reasonable person would expect to detail. A lawsuit filed against this blog would require the plaintiff to prove “actual malice”, meaning that a “verifiable fact” was posted that was reasonably considered to be untrue. Most legal opinions consulted have noted that is something difficult for a plaintiff to prove.  Still, I make every attempt to provide legitimate reason for the opinions I hold and express on this blog.

Something else interesting to consider is anonymity. Cases have been brought in order to reveal the identity of an anonymous blogger.

The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously: “author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” (McIntyre v. Ohio Elections Comm)

Procedures and motions are often filed to allow anonymous bloggers to remain anonymous until the lawsuit is decided, or a summary judgment is entered that considers the likelihood that the case will result in a final judgment in favor of the plaintiff.

Yes, bloggers need to be responsible and understand the law and their boundaries. But, bloggers also need to know their rights, and SLAPP lawsuits used to scare away criticism are often dealt with collectively in the blogosphere, having even caused those who brought the suits to drop them.