hotshoe
Posts: 42
Joined: Nov. 2012
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[quote=Patrick,Aug. 30 2013,09:47][/quote]
| Quote (hotshoe @ Aug. 30 2013,00:54) | | Quote |
Well, you may not live under such a legal system, but Shermer certainly does. That's our US First Amendment rights at work! The alternative is far more horrifying to contemplate: that a public figure (like Shermer) could use the courts to trample on your free speech rights any time you said anything about him that he claimed would harm his "reputation"! Thank god I live in a country where the Supreme Court has specifically ruled on this issue and is protecting my free speech rights.
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I said that I would not want to live under such a system. Fortunately, I do not nor does anyone else in the United States. There is legal recourse available to victims of defamation.
I am a free speech absolutist. I would not support any attempt to limit PZ Myers' ability to publish anything he wishes. |
Good. Thank god for that. It's so nice to see an absolutely clear statement that PZ Myers has the First-Amendment right to publish what he understands to be the truth about Shermer, without censorship.
| Quote | | I also recognize that such freedom means that people will sometimes cause significant harm to other people's reputations. If those damaging claims cannot be supported, the libeled or slandered person must have a means to clear their name. |
Yes, and the legal recourse for the possibly-libeled person is to file suit against their alleged-libeler. And although the libel suit is a civil action, not a criminal action, in that suit the alleged-libeler, being the defendant, has legal protection equivalent to "presumed innocent until proven guilty". That is, Shermer - if he follows through on his threat to sue Myers - will have the affirmative burden of proof; and furthermore, since Shermer is a public figure, he will have the burden of proving not only that he was actually defamed (which may be possible to prove in Shermer's specific case) but also must meet the burden of proof that Myers acted with actual malice. (Note: that is "actual malice" as defined by law, not merely out of spite, or as a result of some prior spat between the two parties.) This is settled constitutional law; it was settled in 1964 by the US Supreme Court.
The US Supreme Court unanimously decided NYT v Sullivan on First Amendment grounds, with the effect of protecting YOUR and MY free speech rights from self-censorship due to prior fears of being bankrupted by a libel suit (or threats of such a suit) flung by some powerful public person.
You, as a "free speech absolutist" must naturally be on the side of the US Supreme Court, the NY Times, and our freedom to say rude things about public figures whom we suspect to be dangerous, wrong, or corrupt, even to say things about them which turn out on close inspection to be untrue, as long as we don't say them with actual malice.
| Quote | | Would you really prefer a system where your life and livelihood could be destroyed by anonymous rumor and gossip published by any blogger with a sufficiently large following? |
1. Since I am more likely to die in a tsunami than to accidentally come to the attention of any "blogger with a sufficiently large following" who will decide to randomly attempt to destroy my "life and livelihood", I guess I'll take my chances with such a system.
2. Since neither I, nor you (presumably) are public figures, I, and you, can take such a blogger to court - if we can afford a good lawyer! - and win without having to prove actual malice, I'm happy that a legal recourse exists. But I can't imagine being stupid enough to want to sue, no matter how badly I felt about my reputation, given that as you say, the "gossip" would already be out there, and would not disappear if I won. But that's just me.
3. As I said before, we do live in a system where - sometimes - an innocent person's reputation may be ruined by a defamer who cannot be successfully sued due to our FA rights protecting our ability to speak/publish freely (even if what we say/publish is only "rumor" and "gossip" and even when it's demonstrably not true).
And yes, I absolutely do prefer the system we have, thanks to the Supreme Court, than the horrible alternative of suppression of free speech.
As the great Blackstone said, "It is better that ten guilty persons escape than that one innocent suffer".
In context (civil, rather than criminal courts) I mean that it is better that ten actual libelers escape than that one person has their free speech rights trampled upon. Our commitment to free speech necessarily entails that free speech excesses up to and including outright falsehoods cannot be prevented in advance (no prior censorship) and cannot be punished after the fact in cases regarding a public person (actual malice standard).
You might be interested in the words of a lawyer on the relative value of free speech rights compared to the desire to challenge a libel against oneself:
| Quote | As the NYT [Supreme] Court explains, the public-figure and “actual malice” standards are an extraordinarily important means of protecting the First Amendment rights to freedom of expression and freedom of the press. Without those standards (or some other rule that performs similar work), the powerful could all too easily silence any critical commentary on anything they do. There’s an underlying cost-benefit analysis involved: upholding those First Amendment rights has long since been deemed more fundamental and important than private parties’ desire to root out any and every published challenge (including, inevitably, some that are based on falsehoods) to their reputations.
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| Quote | | Again, one notable factual parallel between the facts of NYT and Shermer’s allegations in his hypothetical lawsuit against PZ is that some of the statements the Times printed were in fact false. As a result, Sullivan’s complaints about the Times‘ publication was, in that respect, correct: the publication had stated false notions about him and his police force. The reason NYT would be particularly helpful for PZ in the hypothetical lawsuit, besides setting out the “actual malice” standard in the first place, is that it shows that the mere falsity of Jane Doe’s account still wouldn’t prove that PZ defamed Shermer. |
4. I'm not sure if the phrase "any blogger with a sufficiently large following" is meant to imply that it is somehow more objectionable, or somehow more effective, to allegedly libel a public figure via one's blog compared to other methods of spreading "rumor" and "gossip" but in either case, it's nonsense.
PZ Myers (that is, the "any blogger" in this case) has not done anything via his blog that he could not have done in 1791 with handbills printed in Ben Franklin's shop.
Here's word from the lawyer again:
| Quote | There is nothing whatsoever about the PZ/Shermer controversy that could not have taken place with the technology available in NYT‘s 1960—or for that matter the Bill of Rights’ 1789. Accusing a public figure of a serious crime ... has been entirely practicable for many centuries.
Moreover, NYT v. Sullivan has coexisted with overwhelmingly widespread Internet use for decades, now, and there has been no indication that any court, least of all the U.S. Supreme Court, believes that the justification for “actual malice” standard is any less pressing in the Internet age than it was in 1960. ...[T]his matter is not the first time that public figures have been accused of serious crimes on the Internet by people whose identities the accused was not aware of. Decades’ worth of Internet-age defamation law have done nothing to cast NYT into doubt[.]
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[emendations by me to remove personal interjections, which don't affect the sense of the paragraph]
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P.S. The "l" key is not registering correctly on my keyboard and several times I typed "pubic" for "public". I believe i have corrected them all but if any mistakes remain they are not meant as an ironic commentary on Shermer's alleged sexual assaults. Sorry.
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