First Amendment

SCOTUS Won't Hear Defamation Case Against Bill Cosby; Clarence Thomas Has Issues with Landmark First Amendment Ruling [UPDATED]

Thomas thinks the Supreme Court may have erred in its 1964 NYT v. Sullivan ruling.

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JIM YOUNG/REUTERS/Newscom

The Supreme Court today declined to hear a defamation case against disgraced comedian Bill Cosby that had been filed by one of his alleged rape victims.*

Cosby, who was sentenced to three to 10 years behind bars after being convicted of a separate sexual assault, had been accused of defaming—via his attorney—Kathy McKee, a former actress and talk show host, who claims the comedian raped her in 1974. McKee told her story to the New York Daily News in 2014, around the time Cosby was facing other allegations of sexual misconduct. She said one of Cosby's lawyers then sent a letter to the Daily News calling her allegation "wild" and wrongly suggesting that she, like some of Cosby's other accusers, had a criminal record, according to Reuters.

Cosby's legal team defending him in the defamation suit claimed that by going public with her story, McKee had become a public figure. The standard to establish defamation against a public official is much higher than that needed to prove a private individual was defamed. This is largely thanks to the Supreme Court's 1964 ruling in New York Times Co. v. Sullivan. The Court essentially said that when public officials are claiming defamation, they must prove that the defendant acted with "actual malice," meaning the defendant knew they were spreading falsehoods but did so anyway, or simply didn't care to find out the truth either way. This was seen as a win for the First Amendment, as it meant that disgruntled government officials would not be able to easily win defamation suits against media outlets. The ruling was eventually expanded to cover public figures as well.

Lower courts sided with Cosby on this matter, and in January 2018, a federal appeals court denied to hear the case. McKee filed a writ of certiorari with the Supreme Court, only to be rejected again today.

The Court as a whole did not provide any reasoning behind its action (or lack thereof). However, Justice Clarence Thomas' concurrence, which no other justice signed onto, is notable in that it criticizes the actual malice standard and calls on the Court to reexamine how libel cases are dealt with. "McKee asks us to review her classification as a limited purpose public figure. I agree with the Court's decision not to take up that factbound question," Thomas wrote. "I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place."

Thomas' concurrence seems to suggest that the Court was overreaching when it established the actual malice standard. "New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law," he wrote. "Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rule[s]' by balancing the 'competing values at stake in defamation suits,'" he added, citing the 1974 ruling in Gertz v. Robert Welch, Inc.

"We should not continue to reflexively apply this policy-driven approach to the Constitution," he said, instead suggesting that "we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we."

Thomas went on to explain that prior to the ruling in New York Times v. Sullivan, libel cases were a question of common law. "The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages," he said. It was more so a question of whether the claims were true or not. "But where the publication was false, even if the defendant could show that no reputational injury occurred, the prevailing rule was that at least nominal damages were to be awarded," he wrote. In colonial America, libel was largely prosecuted as a crime, and libel against public officials was seen as a worse offense than libel about private individuals," Thomas said.

"We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified," Thomas concluded. "The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area."

As The Washington Post noted, President Trump has suggested that it should be easier to sue media outlets for defamation. as a result, Thomas' concurrence has some people worried about the future of press freedom. "Since he was on the campaign trail, President Trump has complained about libel laws in the United States, and has argued that they should be rewritten," University of Texas School of Law Professor Steve Vladeck told CNN, where he works as a Supreme Court analyst. "Justice Thomas's opinion today concurring in the denial of certiorari is a roadmap to exactly that result."

* CORRECTION: The headline and first sentence of this piece previously stated that the Supreme Court had "sided" with Bill Cosby. In fact, the Court denied a petition for writ of certiorari filed by a woman who had accused Cosby of defamation. Denial of certiorari should never be described as a ruling in favor of any party. I regret the error.

NEXT: Let the WOTUS Wars Commence

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  1. Thomas is absolutely right. Sullivan just gives new organizations a license to lie about public figures. I think Sullivan as much as anything is to blame for the decline in the quality of the news media. The media doesn’t have to worry about whether what it is saying is true or not. It just has to not know it isn’t true. If anything Sullivan creates an incentive for media organizations to print without investigating. If someone gives you a story and you start checking it out, you might fing out it is untrue and be lible for damages if you print it. But if you just print it without checking, you are almost certainly immune from liability if it turns out to be untrue.

    1. Agreed. When I took media law I was surprised by how absolutely bullshit these standards were.

    2. Yeah, I suppose and incentive to remain ignorant isn’t great for the news media.

    3. Oliver Sipple obstructed Sara Jane Moore when she tried to shoot Gerald Ford. He wanted to keep is sexual orientation out of the news
      but the LGBT crowd, particularly Harvey Milk had other ideas. It caused a major rift in his family relations and he sued the San Fran Chronicle. Lo and Behold a California court concluded he was a public figure now and couldn’t sue.
      White hispanic George Zimmerman was also prevented from suing NBC despite their flagrant editing of a 911 call to make him sound like an anti black racist.

    4. I think I’d prefer the status quo over the US becoming even more litigious, especially regarding speech and press.

    5. Start working at home with Google. It’s the most-financially rewarding I’ve ever done. On tuesday I got a gorgeous BMW after having earned $8699 this last month. I actually started five months/ago and practically straight away was bringin in at least $96, per-hour. visit this site right here……. http://www.payshd.com

  2. It was really the woman’s fault – she should have been sexually assaulted by someone who *isn’t* a celebrity, then she’d have an easier time winning her case.

    1. Why are there no brothers up on the wall?

  3. Don’t some libertarians argue that you don’t own your reputation in the first place therefore there is no damages to be had because someone else thinks ill of you?

    1. Yes, the standard libertarian position is that libel laws should not exist.

      1. No its not.

        Defamation is a form of fraud, either in written or verbal form, to harm the reputations of others.

        Its one thing to think someone is a liar or thief. Its another thing to try and convince others that someone is a liar or thief and you know that they are not.

        1. Another point often left out of Libertarians points under Rule of Law is that some fundamental harming behavior is better left to a court to mediate than “frontier justice”.

          Anarchists who hide in Libertarian circles are fine with no Defamation laws since there is to be no Rule of Law. Therefore the strongest party wins. If I feel like you defamed me, I can either accept it or kill you.

        2. Wrong. Fraud applies to contracts. According to your definition, all lying is fraud and should be punishable by law. That’s preposterous.

          1. Poor Chipper thinks fraud only applies to contracts.

            fraud
            /fr?d/
            noun: fraud; plural noun: frauds
            wrongful or criminal deception intended to result in financial or personal gain.

          2. As you misrepresent what I said…again, I didn’t say all lying. I said defaming people which is not just lying.

            1. Have to agree with LC here.

              It is not preposterous if said lies cause financial harm to someone.

              Though, Chipper might be right in that standard libertarians operating at a kindergarten level seem pay about zero attention to fraud, even though it is just as damaging to liberty as force.

              1. I like things as black-and-white as possible but even the Libertarian fundamental of N.A.P. allows for preemptive self-defense if the threat of attack is imminent.

                It would be ludicrous to expect people to wait to be attacked before defending yourself.

                That would be like waiting for a burglar to shoot you in your sleep before you could shoot them to death in self-defense.

                If you don’t want people pre-emptively defending themselves, don’t threaten people.

                If you don’t want people defending themselves by suing you for libel or slander, don’t defame them.

      2. Yes, the standard libertarian position is that libel laws should not exist.

        I don’t think a person should be criminally penalized for lying about someone else, but if the lies have demonstrably caused financial or other damages, then it should be eligible for a law suit.


  4. Cosby’s legal team defending him in the defamation suit claimed that by going public with her story, McKee had become a public figure. The standard to establish defamation against a public official is much higher than that needed to prove a private individual was defamed.

    The thing I fucking hate about this legal theory is that it essentially means that no one at all is a private figure, meaning that basically everyone gets the way harder standard to prove defamation.

    1. Bingo. The fucking media can make you a public figure against you will and then proceed to lie about you and ruin your reputation and there is nothing you can do about it. NYT v. Sullivan sucks.

      1. This was highlighted pretty well in the George Zimmerman case. It was truly a what the fuck moment when they ruled he was a public figure, which was absolutely bullshit because the media group he was suing are the very one’s who made him a public figure in the first place.

        Media organizations essentially can not be sued successfully for defamation or libel unless they fuck up so badly that they literally tell you they are out to ruin you, and you somehow manage to record them saying it in a one-party consent state.

        In my view, Sullivan is one facet of why media conglomerates give zero fucks about proof or truth. With the way the law is set up, those are a hindrance.

      2. ^This John.

        The media turns a private person into a “public figure” by printing libelous material about them and then tries to claim immunity from defamation laws.

        A public figure is someone who enters public life voluntarily. Politician, movie star, music star… you know someone that depends on publicity for their livelihood.

      3. Propaganda outlets need a system that allows them to lie with impunity from civil recourse.

      4. It started with a Southern police official (boo!) suing some civil-rights supporters (yay!), so the civil-rights supporters were probably bound to win on some ground or other, but they used the case to rewrite common-law rules, then in later cases they said this applied to public *figures* as well as public *officials.* If they at least had limited it to public *officials* maybe it wouldn’t have been such a clusterf***.

        1. The problem was Alabama misread its own libel law and held the NYT repsonsible for publishing a lie that the civil rights group told in an ad it took out. They couldn’t under the Erie Doctriine overrule the Alabama courts’ rulings on their own common law without overturnign Erie. So, instead they destroyed libel law.

          1. IIRC the falsities were about *how,* not *whether* the Alabama authorities went about harassing the civil-rights activists. The NYT apologized to the governor of Alabama and maybe to some others, but not to Commissioner Sullivan on the reasonable grounds that they didn’t think the ads were about Sullivan in particular. So absent an apology and retraction, Sullivan was able to collect yuge punitive damages when the jury found that Sullivan was in fact included among the “Southern violators” criticized in the ad.

            If the Supremes wanted the civil-rights people to win, they could have said the damages were unconstitutionally excessive as to Sullivan, and were in fact more about soaking the civil-rights movement than about pure justice – in short, they could have thought up some way the civil-rights people could have won without messing with all other libel plaintiffs.

            1. (I’m not talking about the legally best option, but about how the Warren Court could have given a victory to its favorite side with minimal collateral damage)

  5. It was more so a question of whether the claims were true or not. “But where the publication was false, even if the defendant could show that no reputational injury occurred, the prevailing rule was that at least nominal damages were to be awarded,”

    I guess it would harm the modern media discourse where the pattern is, print the story first, acquire as many clicks and views as possible, then worry about the facts later.

  6. People depended on their character, so defaming someone could cost them their livelihood or life.

    I think this is the main reason for the 1A being the only protected right in the BoR that starts with “Congress shall make no law…”

    Of course, this all changed with the 14th Amendment and all federally guaranteed rights became the rights of all state residents.

    1. The 1st Amendment means they can’t throw you in jail or punish you for your speech. It no more means that you can’t be held civilly liable for the damage done by libelous speech than the 2nd Amendment makes it impossible to prosecute robbery using a gun.

      1. +100

        1. Careful, man, your plusses are quickly losing value through inflation.

          1. careful, man, the value of your critiques has been going down for months.

            1. Sorry, some of us don’t have the time to read every comment all day.

              1. Yet, you have time to comment the way that you do.

                1. Relax, buddy. I’ve been on here a lot less in the past few months. And the fact that you read my initial comment as anything but a light-hearted joke suggests you need to chill out.

                  1. The fact that you are taking anything that I said as anything but a light-hearted joke suggests you need to chill out.

                    1. OK, let’s all chill out then.

                    2. I’m always chill.

      2. So much this!

    2. I thought you were an absolutist. Defamation laws are certainly laws; how can they be justified under any circumstances? Libel, slander, same thing — they involve laws.

      Please explain this triumph of principal over principle.

      Oh wait — you don’t do that.

      ==== hypocrisy ====
      loveconstitution1789|12.3.18 @ 10:20AM|#

      Do you need me to link the rules of NAFTA and USCMA so you can compare and contrast the “worseness” for us?

      1. Because your right to free speech doesn’t make you immune from being libel for the damage you cause through a wrongful act anymore than the 2nd Amendment makes armed robbery with a gun legal or makes torts committed with a gun not actionable

        1. There you go — another legal runaround. So much for absolutism.

        2. The alphabet troll is on the wrong side of the principled position, so it is scripted to obstruct discussion.

          1. Yes, the right side is the Principal side. Every Principal (and Principal boot-licker) knows so.

          2. Poor alphabet troll loves the taste of black shoe polish.

  7. Libel was a huge problem in the past because people could publish nasty things in the newspapers and there was no way to respond quickly. Damage to a reputation could be permanent. But today with social media you can publish your rebuttal almost immediately. Libel simply isn’t the same threat as it was in the past and no point in solving a problem that doesn’t exist.

    1. Libel and defamation are still threats, but giving media corporations the ability to instantly transmogrify you from a private citizen to a public figure is a foolish precedent in the extreme. It means they can virtually never be held to account for what they say, facts be damned.

      1. And yet this doesn’t happen, or at least is exceedingly rare. Whereas ‘opening up our libel laws’ will have many unintended adverse consequences. Remember, the Grenfell Tower fire happened because the people who spoke out against fire code violations were threatened with lawsuits.

        1. So because we can only think of a handful of people who have been outrageously slandered and had their lives publicly shredded by intentional acts of editing by publications in recent years, we shouldn’t think about the finer points of libel law and maybe reform what we consider to be a ‘public person’, or at the very least consider why we might think of them as a public figure in the first place?

          Seems like a really stupid ass plan, but I have to consider the source here I suppose.

    2. It’s hard to reprint your “rebuttal “when you’re say, a high school kid that got smeared in every major and minor news outlet, and are at the receiving end of a twitter viral hate campaign. Voices get drowned out pretty easily.

      1. But, since that high school kid is now a ‘public figure’ because of the very media outlets he might want to sue it’s too bad so sad for him. No recourse at all, which is essentially the exact type of case where an outlet should potentially be held liable for the damage to a childs reputation.

      2. I agree he was initially defamed (based on an incomplete video). But then he had a chance to get his full story out and he was exonerated. In fact he’s now a hero. Again, there is no problem here but a ‘solution’ will certainly create new ones.

        1. Yeah, I’m not opposed completely to libel being a thing. But we certainly don’t want to have UK style laws and should be very careful about anything that would make it easier to sue for libel.

          1. If I were to change anything here, I’d say don’t apply the public figure standard to people who are accidental public figures or who are only public figures because of what they are being possibly libeled over. If you are a public official or someone who makes a deliberate effort to be a public figure, then I think the higher standard is justified. UK style libel laws seem to have a real chilling effect.


            1. If I were to change anything here, I’d say don’t apply the public figure standard to people who are accidental public figures or who are only public figures because of what they are being possibly libeled over. If you are a public official or someone who makes a deliberate effort to be a public figure, then I think the higher standard is justified. UK style libel laws seem to have a real chilling effect.

              I would tend to agree. The thing I specifically find to be outrageous is to allow the entity being sued to decide which standard will be used on their victims. That’s not fair or logical by any measure.

            2. My thoughts on this topic have transmogrified over the last several years. As an anarchist, I have been, and continue to be, troubled by the chilling of speech and other impediments to the free flow of information.

              However, as least as far as it concerns non-crony private sector individuals, defamatory statements should be actionable, particularly if the defamatory statements were published by public sector individuals, media figures who embody the revolving door between government and the government media complex, media figures who support progressive policies, the entire crony society, including defense contractors, lobbyists, think-tanks, corporate welfare beneficiaries, religious figures who receive public money (not 503(c) organizations as that designation does not mean welfare recipient as a tax exemption is not a subsidy), and the like.

              To be sure, I am not exempting FOX or the likes of Hannity or O’Reilly et al as they, too, are supportive of progressive policies and they too have straddled the line with respect to defamatory statements that they have published against private sector individuals.

              To be sure, I am not exempting anarcho-libertarian outlets or the likes of LEWROCKWELL.com or Tom Woods or Hans Herman Hoppe from libel actions as they may cross the line with respect to a defamatory statement that they may publish regarding a purely private sector individual.

              1. Given the overall legal landscape tilting in favor of public sector figures, including the absolute immunities accorded judges and prosecutors, and the limited liability immunities accorded cops, as well as the absolute and limited liability immunities given to a veritable plethora of local, state, and federal mandarins, I think it salubrious that there be a bright line of demarcation in the actionability of defamation actions such that, at a minimum, the Sullivan v. NYT threshold should apply and if the public sector figure loses, he pays treble the attorney’s fees the defendant incurs.

                1. If, OTOH, Kamal Harris, while on air during the Rev. Al’s show, impugns the integrity of a George Zimmerman or the Covington, KY kid, then she should he held to account in a slander action.

                  If Donald Trump defames a private sector figure, he should be held to account and the presidency should not be interposed as a basis to delay discovery.

          2. England does not use Defamation common law to silence speech.

            In the UK you dont have a right to free speech. The EU either.

            1. England does not use Defamation common law to silence speech.

              How do you figure? Whether or not they have constitutional or statutory protections of free speech isn’t really relevant.

              1. Hate speech laws in the United Kingdom

                In the USA, under the 1A protected free speech.

                In the UK, you don’t have the right to free speech.

                1. Yes, they have other laws that more efficiently trample free speech. That doesn’t mean that libel laws don’t also have the effect of silencing speech.

                  1. This ain’t Anarchy-Land and you get to say whatever you want without consequences.

                    Very limited Defamation laws simply cause pause that what you give as fact about other people is not intentionally false.

                    You know why many people don’t call daughters “whores” while their dads are standing next to them? I would say that one reason is that its not polite. A second reason would be that many dads would punch that person in the face.

                    That verbal behavior is so powerful that it causes dads to risk jail for hitting someone simply for saying something.

                    Guarantee though, that defamer will think twice before defaming daughters with their dads standing there.

                    1. What the hell are you talking about? In the UK people hesitate to say true things about public figures regularly because they are afraid of getting sued. That’s not good. I’m not arguing against all libel laws. Just that we should be careful about extending their reach.

            2. In the UK you dont have a right to free speech. The EU either.

              You might want to rethink that. I know you won’t, but you really should.

              1. As usual, your citation fell off SparkY.

                Why it’s time for a British First Amendment to protect free speech

                freedom-expression_en

                I know you wont provide a citation to your nonsense, so I won’t need to check back.

                1. The following is a non-defamatory statement:

                  Stacey Abrams is more vibrant than either Corey Booker or Kamala Harris.

                2. Here’s a citation for you, dipshit. I highly suggest that you read it.

                  Citation

                  In case my phone eats the href link, remove the space here:
                  https://www.mtsu.edu/first- amendment/article/822/natural-rights

                  1. Poor SparkY the dipshit cannot even get a link into html format.

                    1. Broken links for SparkY like his mind is broken.

                    2. Broken links for SparkY like his mind is broken.

                      I may not be able to get html code working anymore, but at least I’m not so retarded that I think rights are granted by governments.

                    3. If rights are not granted by governments, than pray tell who or what has granted them? Note that I don’t agree with the notion that rights are granted by governments, but there is little denying that is the measuring stick used in todays world.

                      I’m just curious if you’re a religious man since ‘rights’ flow from an all powerful, all knowing creator. If you don’t believe in one of those, why it seems perfectly reasonable to assume that positive rights would be a more correct interpretation.

                    4. Rights come from an individuals ability to do what he will.

    3. Libel simply isn’t the same threat as it was in the past and no point in solving a problem that doesn’t exist.

      Do you wish to compare the impact of network news calling you a kiddie rapist as opposed to your Facebook post calling the claim “bullshit”?

  8. So if NYT vs. Sullivan is overturned, what is to stop a politician, or a corporation, or anyone with power and money, from suing ordinary people for saying mean things about them in public?

    1. Nothing. But they can do that now.

      1. But with NYT vs. Sullivan in place, those lawsuits won’t succeed. Without NYT vs. Sullivan, they just might succeed.

        So wouldn’t that place free speech effectively into the hands of who has the most money and power?

      2. I mean, if you really thought progressives controlled most of the levers of power in this country, why would you want to give them the power to sue you into oblivion for daring to criticize them?

        1. ^^^This.

        2. Summary judgment is not something you know about?

          Since when are you people worried about wasting money with frivolous lawsuits?

        3. FYI chemjeff, I can file a lawsuit right now against you.

          By the time, you knew what hit you I could have your IP address, real address, and serve you with a Summons.

          At some point, you could see a Summary judgment against my claims and have the lawsuit dismissed.

          Nothing prevents people from filing frivolous lawsuits but Summary Judgment is the process to keep them from reaching civil juries.

        4. So you agree that it’s a good thing they changed the standard from ‘public official’ to ‘public person’ then? Interesting position. Tell me, why do you conflate them so disingenuously? Is it because the government did so first, and the government is never wrong?

          1. Try to make a straightforward point in a non-passive-aggressive manner and I might have something to respond to.

            1. The point is that the original idea was to hold public officials to account, rather than creating an extra protected class of private citizens.


              This was seen as a win for the First Amendment, as it meant that disgruntled government officials would not be able to easily win defamation suits against media outlets. The ruling was eventually expanded to cover public figures as well.

              One of those things is not like the other.

              1. Politicians should not use the courts as an end-run around the First Amendment by attempting to use libel laws to suppress criticism of them. Would you agree?

                Furthermore, I also believe that people of power and money, regardless if they are politicians or not, should not be able legally to use their power and money to suppress legitimate criticism. Would you agree with that?

                I also believe that there should be a very high standard in deciding whether criticism is illegitimate or not, based on the knowledge that just filing a lawsuit is an attempt to chill speech, so those who believe they have been criticized unfairly should only take legal action if they really believe they will prevail, and not just to shut people up and chill their speech. Would you agree with that?

        5. Because I don’t lie about public figures for one. And if I did, then I really couldn’t complain if they did sue me.

          We had a Republic for nearly 200 years without Sullivan. I think we can continue to have one without it now. Opinions are not lible. For something to be liblel it has to be a verifyable fact and there has to be damage to the person’s reputation and it has to be untrue. Truth is a defense to libel. Bringing a lible suit opens up your entire life to examination on discovery. Few politicians have the stomach for that.

          1. Because I don’t lie about public figures for one.

            “Your honor, I would like to submit into the record commenter John’s commenting history at Hit n’ Run from 2008 through 2017 as Plaintiff’s Exhibits 1 through 12,578.” — Counsel for Plaintiff Barack Obama in Obama v. “John” (N.D. Ill.)

            1. What damages could Obama possibly claim vs. John in court as relates to his public office, one might ask?

              1. That’s not the point. The point is to chill your speech ahead of time by threatening to drag you into court and put your life under a microscope for daring to criticize those in power, regardless if there are damages to anyone’s reputation or not. This doesn’t happen now (as much) because SCOTUS has set a very very high bar for what might succeed in court. Lower the bar, and those with power and means will take advantage of the opportunity to stifle criticism by any means necessary.

                1. Essentially, I would resolve the tension between free and unbridled speech concerning any public matter and any public sector official and the hurt feelings of a defamed public sector official in favor of the former.

                2. Again, we had 150 years of libel law and none of that was true. We had a vibrant democracy and in many ways a more honest and vibrant press. You just make up shit to justify whatever you prefered position is.

                  1. Oh you’ve got to be kidding me. We had very little democracy in the past. The vote was restricted to a subset of white male property owners, and even then their power was diffused through layers of government. The newspapers were explicitly partisan and 10 times worse than Fox News and MSNBC are today. I can’t believe you are actually advocating for British-style restrictions on the press. Oh wait yes I can, because it’s all about “pwning the libs”.

          2. Because I don’t lie about public figures for one.

            “Your honor, I would like to submit into the record commenter John’s commenting history at Hit n’ Run from 2008 through 2017 as Plaintiff’s Exhibits 1 through 12,578.” — Counsel for Plaintiff Barack Obama in Obama v. “John” (N.D. Ill.)

          3. Because I don’t lie about public figures for one.

            Who decides what is a lie? A court of law? By time it gets to a court to decide if your comments are lies or not, the chilling effect of their lawsuit on your speech has served its purpose.

            1. A jury?

              1. By time it gets to a court to decide if your comments are lies or not, the chilling effect of their lawsuit on your speech has served its purpose.

    2. Would they be truthful things? That is a rather solid defense for libel claims in the US.

      1. By the time any libel case gets to the courts to decide if a particular statement is truthful or not, the chilling effect of the lawsuit itself on the critic’s speech has served its purpose. That is the problem here.

        If I call my neighbor a bad name, it’s qualitatively different than if I call the mayor a bad name, because the mayor exerts power over me in a manner that my neighbor does not. Those with power should not be using the courts to circumvent the First Amendment in order to silence criticism of them, even when that criticism isn’t entirely legitimate.

        1. It is easy to tell an opinion from a fact. Calling someone a bad name is an opinion. Judges as a rule are not nearly as dense as you are.

          1. You call a congressman a crook at a town hall style meet and greet. THe congressmen fancies himself as a democratic socialist and, in fact, he has voted for higher income taxes, an estate tax on all estates north of 100,000.00 as well as a 90% estate tax on every dollar over a million and he has voted to exempt all federal employees from the income tax.

            Does he have a slander cause of action against you?

    3. SLAPP statutes, which provide for the rapid dismissal of unfounded defamation suits and the recovery of the defendant’s legal costs from the plaintiff.

      1. I am all in favor of anti-SLAPP statutes. But they as well are not a panacea. They can also inadvertently suppress legitimate cases.

        1. Yeah, like chill access to the courts.

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  11. Sounds good but the subsequent law should confine any awards to covering court costs…

  12. “The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages,”

    At the time the amendments were ratified, you could still challenge the blackguard to a duel. That kept most in line. A little tar and feathers took care of the rest.

  13. ” In this chapter Rothbard attacks defamation law (which includes libel, the written form of defamation, and slander, the oral form), i.e. reputation rights (he also rightly attacks blackmail law), on the grounds that reputation is just the subjective opinions of you that others have in their own heads, their own minds, and since they own their own bodies, you cannot have a property right in what they think; thus, you cannot have a right to a reputation, and defamation law is thus unjust.” http://www.stephankinsella.com…..-our-time/

    But obviously libertarian principles must yield to some “libertarians'” hatred of the media…

    1. Yeah, i was going to say it’s hilarious watching the usual Tump-sucking shitbirds spew their distributed talking points while claiming to be libertarians. To the extent actual libertarian thinkers have addressed defamation law in the past, it’s overwhelmingly been from the position that defamation laws should be even more circumscribed than they already are. See also Walter Block’s “Defending the Undefendable.”

    2. Sometimes I think the biggest difference between socialists and libertarians is that socialists at least have a plan with what to do with dissidents. Libertarians just assume there won’t be any contrary to all the evidence that says there absolutely would be, and that they would be close to 95% of the population.

      I think a lot of people would stop being ‘Rothbardians’ as soon as they lived in world governed by those rules for about five minutes. Turns out, pure logic (including all the erroneous underpinnings they assume must be true) don’t govern a primarily emotional species very well. There’s something to the notion that these types of people are basically trying to put together a system of laws governed by autistic people, but then again maybe that’s just my opinion.

      It’s good to know, though, that you see no potential harm in saying there’s no repercussions for people lying about your professional reputation contrary to all the evidence we have that says that there’s a whole lot of harm involved.

  14. Poor Lefties and their propaganda machines depend on being able to lie with impunity while demanding that other tell the truth.

  15. “Turns out, pure logic (including all the erroneous underpinnings they assume must be true) don’t govern a primarily emotional species very well.”

    Logic isn’t erroneous, and if it doesn’t provide a standard for governing well, what does?

    1. Logic is only as ‘infallible’ as it’s underpinning assumptions. If some of those assumptions are wrong, well then one might assume that any conclusions that flow from them would be equally flawed.

      If ‘logic’ was effective at governance, people would not assume their tax returns are a bonus check as one simple example.

  16. This man is one hell of of a thinker .RGB would have to stand on Kagan and Breyers shoulders to kiss his ass.

  17. People that think stupid things are illogical. We can at least agree on that much, right?

    But if laws are illogical, does that mean we are all illogical?

    I think not.

    So…laws shouldn’t be illogical either.

    Now we’re really getting somewhere.

  18. ” The Court essentially said that when public officials are claiming defamation”

    Except that she was not an “official”, however public she may have been.

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  22. Considering how outlets like CNN are airing “stories” that have been proven to be in error or flat out lies over and over, something should be done. Look how the media attempted to destroy the Covington boys, who we now know are innocent and it was Nathan Phillips who lied about what happened. The media had no regard for the long term damage to the boys lives their reporting might cause as long as it supported their narrative and attacks on the President.

  23. Yeah, I’m just curious if you’re a religious man since ‘rights’ flow from an all powerful, all knowing creator!!!

  24. Indeed, Gary Johnson was on the side of forcing accommodation as I recall. Still probably the least awful candidate, but not very libertarian to many people that claim it.

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