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.

Why allow voting in Spanish?

Last week, Kane County came to an agreement with the US Department of Justice, to provide bi-lingual elections judges in 49 precincts in the County. This agreement was triggered due to failure to comply (mainly in Carpentersville/Dundee Township) with the Voting Rights Act of 1965, as authorized by the establishment of the Fifteenth Amendment to the US Constitution.

The Fifteen Amendment to the Constitution was ratified on February 3, 1870:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

However it is said that “it was not really until the Voting Rights Act in 1965, almost a century later, that the full promise of the fifteenth amendment was actually achieved in all states.” [Source: Wikipedia]

Both the Amendment and the Act (which was most recently reauthorized in 2006) were written particularly to deal with issues emerging from slavery to provide voting rights for African-Americans and other non-white minorities. Today, that debate is being renewed, but this time mainly related to Spanish-speaking immigrants.

In the 60’s it was polling taxes and literacy tests that were being used/proposed in order to keep minorities from voting. Today, it is language.

It is important to consider, however, that such legislation was written to be race or color neutral:

The Act requires bilingual election procedures in various states and counties for voters who speak Spanish, Chinese, Filipino, Japanese, Vietnamese, and more than a dozen Native American and Alaskan Native languages.

There are a number of objections raised about this, and in terms of Kane County, it has to do with Spanish speaking voters. A recent letter to the editor appearing in the Daily Herald raised several questions:

Why don’t the Spanish speakers hire their own interpreters?

The Voting Rights Act was specifically established to remove such impediments that historically had been used to prevent minorities, including language minorities, from fully participating in the electoral process.

Who is voting in Spanish anyway?

Fellow citizens, typically first-generation immigrants.

If only Americans can vote, then we seem to have a lot of U.S. citizens who don’t speak English. How can they become citizens if they don’t speak English?

Many first-generation citizens understand spoken English better than they speak or read it. As such, they feel more comfortable reading or speaking in Spanish in situations where it is important to understand or make oneself understood. There is already a limited amount of English required to pass the citizenship exam, however, that does not necessarily translate into a level of fluency that would make voting impediment-free.

When are we as a society going to come to grips with the fact that our language and culture are being undermined by non-English speaking immigrants who refuse to assimilate?

When one looks honestly at the issue, it is not a matter of “refusing to assimilate”, and a study I posted a link to a few days ago found that the English language and the “American culture” are in no danger.

The study can be found here. The report’s synopsis states:

Although the life expectancy of Spanish is found to be greater among Mexicans in Southern California compared to other groups, its ultimate demise nonetheless seems assured by the third generation. English has never been seriously threatened as the dominant language of the United States, and it is not threatened today—not even in Southern California. What is endangered instead is the survivability of the non-English languages that immigrants bring with them to the United States.

A relevant portion of the study concluded:

…while 100% of new immigrants speak fluent Spanish, only 35% of their children do, and 3rd and 4th generation (grandchildren/great grandchildren) only 17% and 5% respectively.

Allowing participation in our electoral process is very much part of assimilation into American life. (Although voter apathy and indifference has unfortunately also become a part of American life.)

By removing such impediments to the voting process we are maintaining and re-asserting the very principles of non-discrimination that we pride ourselves on as Americans.

Reference links:

• Voting Rights Act of 1965 – US Department of Justice
• Voting Rights Act of 1965 – Wikipedia
  
• Lingquistic Life Expectancies [Study] – Pop. & Development Review, 9/06
• Fifteen Amendment to the Constitution of the United States –Wikipedia
• GOP Rebellion Stops Voting Rights Act – Washington Post
• House Renews Voting Rights Act Unchanged –CBS News