N.Y. Court Refuses to Enjoin Allegedly Libelous Speech About Chinese Official

The plaintiff, Yan Huang, is vice minister of China's Ministry of Housing and Urban-Rural Development. Defendant, Wengui Guo, who also goes by Miles Kwok, has been described as a "renegade Chinese billionaire," who fled China and now lives in New York.

From Huang v. Guo, 2019 WL 3206146 (N.Y. trial. ct.), handed down Tuesday by N.Y. Judge Shlomo S. Hagler:

Around May 11, 2017, defendant uploaded a YouTube video to his YouTube channel in which he alleged that plaintiff, is "a negative example of corrupt Chinese government officials." … The video accuses plaintiff of avarice, promiscuity—in particular, of sexual relations with other government officials—cronyism, and graft. The 25-page transcript which plaintiff submitted has a number of underlined paragraphs highlighting the alleged defamation. The complaint alleges "[s]ome of Guo's false and defamatory statements." For example, defendant states:

"In [then-vice-mayor Liu Azhihua's] bedroom, we found a secret. Mr. Liu likes taking naps at noontime…. Who regularly and most frequently appeared in Mr. Liu's bedroom half an hour before his nap? This person is … Ms. Huang Yan, from the Beijing Municipal Planning and Land Resources Management Committee…. After that, Mr. Liu would usually have sexual behavior with Ms. Huang. This occurred basically every time she visited. Accurately, each instance lasted 17 to 19 minutes, with changes in position."

Defendant also noted plaintiff's expensive taste, her love of Hermes bags, scarves, and accessories, and her valuable calligraphy and painting collections). The video asserts that defendant possessed tapes of these encounters and that he submitted them to Director Ling Jihua ("Ling") of the Central Commission for Discipline Inspection ("CCDI"), but that Ling told defendant to hand over all copies of the video to him and never mention their substance again. [Further factual details omitted. -EV]

The court concluded that plaintiff's libel claim could go forward:

[M]any of the allegedly defamatory statements appear not to be expressions of opinion or speculations as to plaintiff's future conduct. On the contrary, defendant went to great lengths to suggest that he was setting forth facts. With respect to plaintiff's activities generally, for example, defendant asserted that [t]here is only one person who would know the truth, and that person is me, Wengui." In addition, defendant asserted that he knew about plaintiff's affair with Mr. Liu because he once possessed videotapes which proved that the two were having sex….

Plaintiff acknowledges that she is a high-ranking official in China. [The defendant accused her of misconduct when she was director of the Beijing Municipal Commission of Urban Planning, and now she's Vice Minister of Housing and Urban-Rural Development. Thus, through her public office she has become a limited purpose public figure within the world of Chinese government. Plaintiff's lack of fame in the United States is not critical here, where (1) defendant posted the videos on YouTube, thus making them available to people worldwide, and (2) defendant posted his videos in Chinese and focuses on the alleged corruption in Beijing among officials, thus directing the videos to Chinese-speaking people concerned with that country's politics.

[T]he plaintiff alleges in the complaint that defendant "knew the statements made by him on above said video were false and misleading" and that defendant posted the video on his popular YouTube channel "maliciously for the sole purpose of impugning [plaintiff's] reputation and standing and casting aspersions upon [her]." … Plaintiff repeatedly states in the complaint that, at the very least, defendant recklessly disregarded both the truth and the substantial probability that plaintiff would be harmed by his statements. This showing is sufficient to withstand the pre-answer motion to dismiss the complaint [under the standards applicable to libel lawsuits by public figures, including as to punitive damages].

But the court held that an injunction was unavailable:

"Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity" (Brummer v Wey, 166 AD3d 475, 476 [1st Dept 2018] [internal quotation marks and citations omitted]). Even "highly offensive, repulsive and inflammatory" speech cannot be restrained unless it "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks and citations omitted]). Applying this principle, courts have found that "[p]rior restraints are not permissible … merely to enjoin the publication of libel." Plaintiff's complaint does not assert facts sufficient to justify such relief.

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[Stephen Lathrop]

Applying this principle, courts have found that "[p]rior restraints are not permissible … merely to enjoin the publication of libel." Plaintiff's complaint does not assert facts sufficient to justify such relief.

It is a good principle—for a bygone era. It could be made a good principle again. But it is a bad principle under today's rules of internet publishing.

Prior to the the unwise decision by Congress to pass Section 230, comparatively little libel got published. A legal practice of holding publishers jointly accountable with contributors for any libels, meant private editors did the work of protecting potential libel victims. They did it almost entirely by preventing publication of defamation before it happened. Much of the prevention was accomplished by careful editing prior to publication. More of it was accomplished by simply not publishing false and defamatory factual allegations.

In that world, the principle against prior restraint made good sense. Far more likely than not, any would-be publication of potentially defamatory material had already been considered, and vetted, and vouched for by an editor with at least a bit of expertise on defamation—and a compensatory caution to make up for any deficiency in legal expertise. Second-most important, the editor had something to lose if his judgment was wrong. Most-important, the work thus done by the private editor precluded public demands that it be done instead by government, through censorship.

That private editing not only cut the volume of published libel to a tiny fraction, it also justified a legal presumption that anything restrained had a high probability of infringing non-defamatory speech. The legal principle against prior restraint was in harmony with publishing practice.

In the new era commenced by passage of Section 230, none of that applies. Instead, every would-be defamation gets published without review by anyone, does its damage permanently, word-wide, and then in a tiny fraction of cases, the already-published defamation gets a post-publishing review, and maybe gets taken down. Too late.

In judging libel, one principle the law has always recognized is that the damage it creates lives on forever. Publication creates a risk of that damage being endlessly renewed, even if a libel judgment has proclaimed truth to the contrary, and awarded money damages. Libels, once published, are rightly held to outlive their victims, and potentially to taint even their reputations among posterity, and indeed, down through history.

In the post- Section 230 era of internet publishing, every libel gets published. Nothing gets restrained. What little is attempted to be restrained prior to publication, confronts the principle against prior-restraint, quoted above—despite the fact that private editing—without which that principle makes no sense—is gone.

The question raised is two-fold. First, is this new legal regime tolerable? An ever-lengthening docket of cases, combined with an upsurge in demands for government censorship of internet publishers, shows that from a broad social perspective, it is not being tolerated. The demanded censorship, especially, puts in question the very survival of speech freedom across the nation. That is not tolerable.

Second, what is to be done? The alternatives are stark. There are but two ways known to restrain defamation before it does damage. One way is to empower government to censor published speech—the intolerable alternative noted above. The other way is to return to private editing, to once again use that practice to determine before the fact whether a would-be publication is defamatory—and crucially, to keep that determination out of government hands.

The second way is the far better choice. To rely on private editing is to bring the legal principle against prior restraint once again into rational harmony with publishing practice. Section 230 is what caused the disharmony in the first place, and what stands in the way now. To avoid government censorship, repeal Section 230.

[apedad]

"The second way is the far better choice."

Nope, can't buy that one either.

In this case, you're asking that YouTube verify the claim that Yan Huang was involved with, ". . . avarice, promiscuity—in particular, of sexual relations with other government officials—cronyism, and graft."

There's no way YouTube (Facebook, Twitter, Reddit, etc.), can investigation the (thousands?) of claims made daily on their sites.

And if they can't verify or refute the claims, then what?

Potential prior constraint of a true statement?

Nope, I'd leave everything as it is and if a person wants to sue then so be it.

We simply cannot have prior private constraint in the internet age.

[Stephen Lathrop]

We simply cannot have prior private constraint in the internet age.

Then you will have government speech constraint in the internet age. You speak as a utopian—as someone who believes, against evidence, in impossible perfection. You think liberty is perfected by lack of constraint? You will not think so after that unconstraint visits you.

Nor will people like you be in a position to decide what you will have, after unconstraint in publishing convinces a majority of your fellows that if this is speech freedom, they want no part of it. You need only turn on your television to discover that process of conversion is already far along. Or just review the comments on this blog, calling for ideological censorship by government of the largest internet publishers.

The notion that you, "simply cannot have prior private constraint," is an unconsidered notion, which history contradicts. Probably, you premised it upon the internet as it now is, dominated by a few giant publishers which strive to divide all the worlds' publishing among them. I concede, you are just as right to object to private constraint in that case as you would be to object to government censorship. There would be little to choose.

But that is not the publishing world which would prevail after Section 230 ceased protecting the business model of the monopolist publishers. Almost every opponent of repeal who responds to my comments objects that it would be impossible for Facebook, for instance, to do prior review of every comment. And so it would be. Which would spell the end of the monopolistic business model for internet publishing. That cannot end soon enough.

The monopolistic model would be replaced immediately by a host of differentiated and localized smaller publishers. It would model the formerly profuse world of newspaper and periodical publishing, but with yet more profusion and readier access for contributors. In a market multiplied, spread-out, and localized, each publisher would prove capable of reviewing before publication all the contributions which came its way. As a not-incidental side benefit, such a system could resume with renewed vigor the practice of news gathering, now largely abandoned on the internet.

Baleful effects of censorship come from two sources. First from being backed by government compulsion and punishment. That is well understood. Second, by imposing upon speech a narrowed and exclusionary point of view, the point of view of government only. That is less often considered, but still easy to understand.

Note, the first point applies not at all to diverse private publishing. There is no power to punish there. The second point does apply by analogy to private publishing divided among a few monopolistic publishers. The dangers those monopolists impose on speech freedom are alike with the dangers imposed by government censorship. Both threaten to narrow speech freedom to a tiny scope, approved by a tiny elite.

But the second point, like the first, is completely inapplicable to profuse, diversified, private publishing. Government censorship is not at all alike in its constraints with private editing practiced diversely and broadly. Indeed, for centuries, diverse private editing was held up as the very model of press freedom, and the very opposite of illegitimate constraint. It was, and remains in fact, the only un-utopian model of practical press freedom ever discovered.

Stake utopian expectations for press freedom on whatever private monopolists will choose to deliver to individuals, and you will have catastrophe. Government censorship as an alternative, will prove less a corrective than an aggravation. It is remarkable indeed to see so many free-market advocates converging toward such unreasonable expectations, while every evidence of experience counsels otherwise.

[apedad]

"You speak as a utopian—as someone who believes, against evidence, in impossible perfection."

No, I very much live in the real world with all its (and my) imperfections.

"Which would spell the end of the monopolistic business model for internet publishing."

How is Facebook (et al) a monopolistic business model?

Does they constrict trade/business (i.e. competition) in any way?

Are they so capital-intensive that costs prohibit start ups and competition?

Do their business practices force customers into unwanted choices (e.g. Microsoft put legal and technical restrictions on manufacturers and users, etc.)?

[Stephen Lathrop]

How is Facebook (et al) a monopolistic business model?

Does they constrict trade/business (i.e. competition) in any way?

Are they so capital-intensive that costs prohibit start ups and competition?

Propose a competitive startup to take on Facebook, and your prospective advertising customers will answer those questions for you in detail.

[Stephen Lathrop]

Put another way, the largest internet publishers enjoy network advantages so potent that only business models which do not compete directly can hope to gain traction. Note that among the most prominent social media companies, none has any notable competitors which are attempting to exploit its own market niche, but do it better. Instead, each internet giant has essentially monopolistic control over a niche which it invented, and grew to monopolize. None are competing in the same business.

All prospective competitors, if there will be any, will almost surely follow that same path. They will invent some new way to command an internet audience, grow quickly, buy up would-be imitators along the way, and emerge triumphant at the top, without a direct rival left in sight.

To compete head-to-head against Facebook, or Twitter, or YouTube, is apparently a fool's errand. Nobody seems to be trying to do it.

[jubulent]

And if they can’t verify or refute the claims, then what?

Potential prior constraint of a true statement?

It's not technically prior restraint, because it's not the court issuing an order. This is private actors self-limiting their speech due to a fear of litigation.

I agree, in part, with Stephen Lathrop: anonymous (or pseudo-anonymous) libel can be extremely destructive and provides very little opportunity for recourse. This is a problem that needs to be addressed. But I don't think that either of his two options are a good solution (although I don't have a solution to the issue myself).

[Stephen Lathrop]

jubulent, you express a utopian longing, together with the good sense to resist it. Thank you for that. If you do come up with another solution, please share it.

[Toranth]

I think the appropriate solution is to make it easier to win convictions for defamation. One of the problems right now is that it is so difficult to meet the standards required that convictions are rare.

[Stephen Lathrop]

Toranth, that would concern me, for two reasons.

First, the present standards for defamation leave ample room for speech freedom, which is a good thing. I wouldn't want to see that room constricted. And conversely, the present standards already create pitfalls which threaten to take too many ordinary internet commenters by surprise. Yet more pitfalls would be pretty bad, too. I suggest the balance is about right as it is.

Second, a very large part of the difficulty is that it is simply hard to find a lawyer to take a defamation case on contingency. Most places, there aren't that many lawyers who have ever tried a defamation case. Also, defamation cases can be time consuming and risky for lawyers, so they tend to want large paydays if they win. And defamation lawyers can also be a little wary of their clients, who may be emotional about attacks made on them, but surprisingly willing to settle for small change if they get a concession of fault and a generous apology.

Another problem is whether there are enough resources on the other side to pay off a win if you get one. And that is the biggest problem with Section 230. By taking the publisher out of the picture, it removes from many, if not most, cases almost all the potential assets to pay a defamation judgment. Joe Keyboard, the guy who actually posts the defamation on the internet, tends not only to be anonymous, but judgment proof if you find him. No assets to attack means no lawyer to take the case.

With that as background, I sense that maybe you think making publishers share responsibility is a bad thing. If so, I am curious if you would say why you think that.

[Toranth]

Two problems. First, with respect to defamation in general: The failures of George Zimmerman and Sarah Palin in their respective defamation suits is an excellent example of why I think defamation cases are too hard to win right now. The "public figure" doctrine, especially the narrow definition of "actual malice", makes it nearly impossible to win.
Which leads to your second point - the difficulty of winning makes it hard to find a lawyer willing to take the cases.

While I do agree that the near-blanket immunity granted by Section 230 is a problem, I think classifying all internet sites that allow comments (or blogging, or posted videos) as "publishers" leads to problems the other way. Twitter, or Facebook, or YouTube, WordPress, or any of the rest of their ilk, could not exist if they could be sued for millions every time one of their billions of users said something defamatory. It is simply not possible for those sites to validate the statements of their users.
Which means those sites would not exist. Any site that currently allows user-created content would be doomed. Even Wikipedia would be in trouble. Comments on sites like Reason would go away, which I think would be a loss.

I think the better solution would be if Section 230 actually meant what reddit users think it does: that a site that exercises any editorial control becomes the publisher. Otherwise, they remain the "community library" for others to publish in. That's the way things worked before the courts re-interpreted the CDA, and I think the courts were wrong when they overruled their precedent.

[Stephen Lathrop]

Toranth, thank you for that comment.

We may have a point of agreement on actual malice. I have a sense, mainly from reading this blog, that many lawyers now believe reckless disregard of the truth should be read as nothing short of knowledge of actual falsity. I don't agree with that, but I am not a lawyer. What I do think is that a publisher who should consider defamation as a possibility, ought then to have an affirmative duty to attempt good faith research prior to publishing. There would be legal complications around the particulars, but if that were the general standard, it would make winning a libel judgment a bit easier in some cases. Of course, until I started reading the comments here, I thought that WAS the standard.

The rest of your comment suggests to me that you number yourself among other internet users who want a way to normalize defamation, by putting publishers beyond risk (of course I get that normalizing defamation could be only a side effect which may not actually be the objective, at least for some). I disagree with doing that, because as a practical matter it all but abolishes the tort of libel, which I see as a critical bulwark supporting press freedom.

[Toranth]

It isn't so much that I wish to normalize defamation - that's basically where we are now - but that I wish to allow for unfettered communication of non-defamatory material, without putting a heavy burden on the companies like YouTube or FaceBook.

If there is a method to review material without breaking the bank (some future AI, maybe), I think your standard would be workable, and would support it. But until then, I think allowing some defamation is better than shutting down so much other speech.

[Stephen Lathrop]

Fair enough. Thanks for the civil comments. I think we understand each other. I just ask you keep what I have said in mind, as you watch what unfolds during the months and years to come.

A couple of years ago, there wasn't really much sign of calls for internet censorship in the U.S. I mentioned then that calls for censorship would be coming along presently, and got mocked for saying it. But here it is.

Maybe I am wrong this time, but I doubt it. I suggest torrents of defamation, other falsehoods, scurrilous attacks on non-public figures, scams, extortions, and election interference, will undermine political support for press freedom, and maybe for speech freedom generally. We'll see how it goes.

[Rossami]

We get it. You hate the First Amendment. Are you going to spam every VC article with this same tired rant based on the same wrong analogies to print media?

[Stephen Lathrop]

Rossami, you get nothing.

Defamation had never been protected by the 1A, and still is not. Defamation is protected, however, and encouraged, by Section 230, which laid down a practical basis to get around the 1A, and publish defamation consequence free. Opposing Section 230 is a means to protect the 1A, which is what I am trying to do.

Also, you are mistaken to conclude the internet is unlike newspaper media, or television media, or magazine publishing, or billboards sitting on roadsides, or newsreels, or book publishing, or radio broadcasting, all of which are ruled by the same defamation standards which apply to the NYT. The internet is just the latest in a string of new publishing media, and ought to be governed alike with the others. The anomaly is that it isn't governed alike, because of Section 230.

In my comments on this thread I have offered somewhat detailed arguments, point by point. If you are serious, take them on, and suggest where I am wrong. Your comment above doesn't amount to much.

[jph12]

"Defamation is protected, however, and encouraged, by Section 230, which laid down a practical basis to get around the 1A, and publish defamation consequence free."

A particularly stupid take on an article allowing a defamation suit to proceed against the alleged defamer for something the defamer posted on the internet.

"In my comments on this thread I have offered somewhat detailed arguments, point by point. If you are serious, take them on, and suggest where I am wrong."

It's been pointed out many times, in many different ways. That's why Rossami referred to it as "this same tired rant based on the same wrong analogies to print media."

[Stephen Lathrop]

jph12, I have noticed a pattern in your commentary. It works like this. An ally of yours—someone with whom you agree—is challenged to respond to specifics, but doesn't do it. You jump in with invective, while leaving specifics comprehensively unaddressed.

It raises a question, whether you are turning yourself into something like a metaphorical sock puppet for other right wing commenters? Whether that is your intent or not, what you are doing is ankle biting. In this instance, you are Rossami's ankle biter. People like Rossami, or Absaroka, are notably better commenters than you are. They don't need self-appointed ankle biters to defend them.

Just thought I would mention that, before going back to my usual practice of ignoring your non-substantive comments.

[jph12]

Every comment I've made in response to the voluminous drivel you repeatedly post has been substantive, including this one. It's not my fault you don't understand standard English or know how Section 230 works.

[David Nieporent]

Second-most important, the editor had something to lose if his judgment was wrong. Most-important, the work thus done by the private editor precluded public demands that it be done instead by government, through censorship.

Those. Are. The. Same. Thing.

[Bob from Ohio]

Why are we letting a senior official of a totalitarian dictatorship use our courts to harass a political refugee?

The court should have ruled it against US public policy to let our courts be used in this manner.

[RoyMo]

Bingo

[NickM]

Bob - I would be very concerned about trying to create an objective rule about which foreigners may sue for defamation in the U.S. You're likely to end up with something which applies to people from countries the judge doesn't like.
However, the forum non conveniens doctrine is applicable here.
Your witnesses (plaintiff and defendant) are outside the country and not amenable to subpoena. Your claimed reputational damage happened in another country, where you're well known. Suit should be brought in that country.

[Bob from Ohio]

"You’re likely to end up with something which applies to people from countries the judge doesn’t like."

A minor risk only at the margins.

Chinese Communist official is not a marginal call, she is a senior official of a repressive, brutal government and is suing a political refugee we are sheltering.

[Stephen Lathrop]

While discussing questions of prior restraint, it is worth noting that Section 230 has notable influence on the answers. And those answers point by an indirect route toward a conclusion that Section 230, if left in place, will unavoidably constrict press freedom—and to a great extent.

Section 230 was put in place ostensibly to free so-called internet platforms to edit content without incurring legal liability, which normally attaches to other publishers. Applying that same standard on the internet, it was said, would impede its development.

Other arguments had been made on the basis of a misunderstanding—namely, that editing was a sufficient characteristic to define publishing. The erroneous public conclusion—not even supported by the formal basis for Section 230—was that with no editing, publishing would not occur.

But publishing cannot be defined by the presence or absence of editing. Publishing is, first and foremost, the practice of assembling an audience for media, and providing media to it. In most cases, publishing is further defined by several other practices: monetizing an audience, recruiting contributors, paying contributors, and selling advertising. By those standards, all the major internet platforms are unmistakably publishers.

The reality, now amply demonstrated on the internet, is that no editing just means irresponsible publishing, replete with defamations, copyright violations, extortions, deliberate falsehoods, careless falsehoods, frauds, scams, and election interference. No editing means that every baneful occurrence of which publishing is capable will always happen at every opportunity. None will be prevented. A tiny fraction might be "taken down" after being published, and not infrequently after inflicting the serious damage of which bad publishing is capable.

To that, the public has responded with calls for restraint. Fans of the internet have proposed restraints which take two alternative forms. First, and apparently paradoxically, that internet publishers be required to cease editing in any form. Or, alternatively, that government police internet publishers, and impose censorship—but only censorship to assure unconstrained flow of various ideological points of view. That, too, is a bit paradoxical, because what is to be censored is whatever content-specific editing these private publishers, guided by the lights of their own ideologies, might wish to impose.

Seen in context, those responses from internet fans are a mismatch for the motives which seem to drive public objections to what the internet now delivers. The fans' recommendations would apparently deliver more of what the public is objecting to.

What neither approach to restraint addresses is the root of the problem—which is the monopolistic giantism enabled by Section 230, when it freed internet publishers from any requirement to read contributions before publishing them. That enabled a business model of scooping up contributions wholesale, regardless of merits or demerits. After that, network effects took over, to consolidate an ever-increasing share of the nation's publishing capability in the hands of corporations numbered in no more than low-double-digit totals, if not fewer.

That monopolization of publishing power has an implication which has not yet got much specific attention. It is this. No matter what practices rule the day-to-day operations of such gigantic machines, their output, simply by virtue of its breadth and volume, will generate an endless supply of public offense and specific objections. We see that happening now. And many of the objections look reasonably founded. Because of their size and extent of influence, these internet publishers have come to be seen proportionately as the only media sources which matter. What they publish comes to seem decisive. Those who object to specifics can always argue that it is unreasonable for the scope of public life to be controlled by monopolists.

In short, because of their size and exclusive market capabilities, the major media platforms come under multi-directional pressure to strip from their offerings everything which is not anodyne. And to include instead only what is approved by self-appointed guardians, or government-appointed guardians, of a national orthodoxy of opinion. All meaningful public life is thus put at risk of becoming a struggle for guardianship. That is the world toward which the internet business model enabled by Section 230 is taking the nation.

The corrective is to restore greater variety and diversity to the nation's publishing marketplace. Only repeal of Section 230 can accomplish that. While Section 230 operates, internet media giantism will rule, and pressures for censorship of the giants, by one means or another, will become irresistible. Whether by government censorship, or private censorship, some tiny orthodoxy of opinion, approved by some tiny elite, will rule this nation's public life. To avoid that, repeal Section 230.

[turco]

Stephen Lathrop,
I am not sure I agree with you. I have been - so far - very certain that Section 230 is a good thing, and that attacks on it from the left ( to make "hate speech " and "fake news" illegal) and from the right ( to counter the leftward bias of Google and Facebook ) are misguided attacks . Your argument is the first time I got doubts about defending 230.
The biggest thing against repealing 230 is that it would "end the internet as we know it " where user generated content reigns. You're basically saying " Yes, and that's a good thing". I am not so sure.