The Southern Poverty Law Center has apologized to Maajid Nawaz for including him on a list of anti-Muslim extremists. Nawaz is a liberal who works to de-radicalize Islamists, and characterizing him as an anti-Muslim extremist was a serious error in judgment on the part of the SPLC, which purports to combat hate, racism, and bigotry.
Even so, this outcome—a result of Nawaz threatening the SPLC with a defamation lawsuit—is concerning on free speech grounds.
The SPLC has agreed to pay a settlement of $3 million to Nawaz and his foundation, Quilliam, which will be used to fund "work fighting anti-Muslim bigotry and Islamist extremism." In exchange, Nawaz won't sue the SPLC for defamation.
The SPLC really screwed up here, and it was right to apologize. But unfairly characterizing Nawaz is not defamation, because opinions cannot be defamatory. That's part of what makes them opinions.
Don't take my word for it: read Popehat's Ken White:
One of the most basic principles of defamation law, mandated by the First Amendment, is that pure opinion can't be defamatory. Only statements of provable fact — or statements that imply provable fact — can be defamatory. I write about this constantly. An opinion, however moronic or unfair, is absolutely protected by the First Amendment unless it implies that the speaker is relying on undisclosed provable facts. So, for instance, "look at what this guy wrote, he's a bigot" is by definition not defamatory; it's based on an interpretation of a disclosed fact, the thing the guy wrote. "I've listened to this guy's conversations and, let me tell you, he's a bigot" might be defamatory, because it implies undisclosed facts — whatever you claim you heard.
Here, the SPLC's fatuous Field Guide appeared to be classic opinion based on disclosed facts. The SPLC offered its opinion that certain people were "anti-Muslim extremists" based on facts it set forth and linked. Their conclusion appears unfair, narrow-minded, and uttered in bad faith, but opinions are absolutely protected whether or not they're unfair, narrow-minded, and in bad faith.
Again, the SPLC backed down due to the mere threat of a defamation lawsuit. The organization has every right to admit defeat, and agree to pay up, even though the theoretical case against it would rest on weak legal ground. The SPLC is an advocacy organization, and it's possible that it didn't want bad press, and admitting defeat was the swiftest way to move on from this episode. The organization has occasionally been very sloppy about who gets labelled an extremist, failing to draw distinctions between Ayaan Hirsi Ali—a survivor of religious violence—and anti-Muslim crazy woman Pamella Geller. (I recently criticized the SPLC for warning about the evils of cultural appropriation.)
And yet I'm worried that this settlement could end up chilling free expression. The answer to bad speech—like wrongly labelling people extremists—is more speech, not endless defamation lawsuits.
Nawaz is represented by Libby Locke of Clare Locke LLP, the same defamation lawyer who handled University of Virginia Dean of Students Nicole Eramo's lawsuit against Rolling Stone. Eramo, you will recall, prevailed in court. That verdict, which I covered at Reason, seemed well-founded to me. Rolling Stone author Sabrina Rubin Erdely didn't just make errors of opinion—she made factual assertions about Eramo that were false. The magazine refused to correct these errors for so long—in the face of overwhelming evidence that Erdely's trust in her single source, Jackie, was misplaced—that the significant line of actual malice was crossed. Rolling Stone's actions were truly extraordinary.
The SPLC matter is clearly different. The organization expressed a really bad opinion about Nawaz, and was rightly criticized for having done so. But the First Amendment protects our right to express bad opinions—and the integrity of this important constitutional principle is undermined whenever someone surrenders to an unfounded defamation threat.