Free Speech

The Return to Criminal Law as a Remedy: Libel


I'm continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I'm talking about how "cheap speech" has brought back criminal remedies for libel. Recall that the article is mostly descriptive, focusing on what's happening, for better or worse.

[A.] The Traditional Civil Damages Model

For decades, protecting people's reputation from defamatory falsehood had been left to libel damages liability. Damages liability is supposed to compensate the injured target of the speech. It is supposed to deter libelers. And it is supposed to encourage libelers to promptly retract their false charges once threatened with a lawsuit.

This mechanism worked to some degree, however imperfectly, for the pre-Internet mass media. Because such media organizations had money, they tended to worry about libel liability. And because they had money, plaintiffs (or plaintiffs' lawyers) had some prospect of recovering their fees, if they had very strong libel claims. Libel law also worked to some degree for libel lawsuits against employers, business rivals, and similar commercial actors.

This is, of course, an oversimplification. Libel cases were often hard to win, because of the Supreme Court's decisions reining in libel law. The availability of libel insurance also likely made the deterrent effect of libel law more complex. And even in the past, there were judgment-proof libel defendants: "[M]ost libellers are penniless," an 1881 treatise author wrote, though perhaps exaggerating, "and a civil action has no terrors for them." Still, on balance, tort law tended to serve its compensatory and deterrent function here, at least to some extent.

But the risk of civil liability doesn't much affect speakers who have no money. Suing such a speaker is a sure money pit: you have to pay your lawyer, and you know you'll never recover any of that expense, much less get compensated for your damaged reputation.

Knowing this, judgment-proof speakers aren't much deterred by the risk of a libel lawsuit up front, before they make their statements. And even if they get a letter demanding that they take down the statements from a blog or a Facebook page, they can feel relatively safe playing chicken. True, even poor speakers can have some assets that could be seized, so they risk some pain from a libel lawsuit. But such speakers can usually be fairly confident that their target won't invest the money in getting and enforcing a judgment.[1]

[B.] 47 U.S.C. § 230

Of course, Internet speech, even from judgment-proof speakers, comes through platforms owned by businesses that have ample assets. Blogs are hosted on some company's computer systems. Consumer reviews are posted on some company's site, such as Yelp or RipoffReport. Revenge porn is often posted on sites devoted to pornography. And this material is usually found by users using search engines.

But all those non-judgment-proof intermediaries are, with few exceptions, not liable for what users post, and generally aren't even subject to injunctions to remove or block such user posts.[2] Title 47 U.S.C. § 230, enacted in 1996, expressly provides that such Internet content and service providers can't be treated as publishers or speakers of material posted by others. Courts have read this immunity broadly, to bar nearly every theory of civil liability that plaintiffs have tried to impose on such companies.

And the immunity applies whether or not service providers decide to control what is posted on their sites. Service providers are thus free to choose whether to take down some material that they conclude is defamatory or otherwise offensive, or whether to keep it up. In either case, they are immune from liability (except as to material that infringes federal copyright or trademark law).

Thus, for much online material, there is no potential institutional defendant who might be held accountable. Plaintiffs can sue the individual authors — but if such a lawsuit doesn't give the plaintiffs the relief they seek, no other defendants are available.

Some of the problems discussed in this Article could be ameliorated by repealing or limiting § 230, and thus by giving organizations that are vulnerable to civil liability an incentive to police speech. Of course, this would exacerbate other problems, chiefly by giving the organizations too much of an incentive to police even protected speech. For our purposes, I will assume that § 230 endures, though the concerns discussed in this Article may lead some readers to reflect on whether § 230 ought to be modified — say, by instituting a limited notice-and-takedown provision, such as the one provided for copyright infringement under the Digital Millennium Copyright Act — or whether such calls should be resisted.

[C.] Anti-Libel Injunctions and Criminal Contempt

As compensatory damages have become practically unavailable to more and more libel victims, courts have shifted to a remedy that had long been seen as categorically forbidden — injunctions against libel.[3] And this trend seems to have accelerated as the Internet has democratized access to the media.

As Judge Posner noted in one recent Internet libel case, the traditional ban on libel injunctions "would make an impecunious defamer undeterrable. He would continue defaming the plaintiff, who after discovering that the defamer was judgment proof would cease suing, as he would have nothing to gain from the suit, even if he won a judgment." In traditional equity terms, the assumption that libel plaintiffs have an "adequate remedy at law" in the form of a damages claim is especially inapt when it comes to the judgment-proof defendant. And the Internet makes it easier than ever for judgment-proof speakers to cause damage that is substantial, yet financially irremediable.

Anti-libel injunctions can avoid this problem by adding a potent enforcement tool: the threat of jail. Continuing to libel someone in violation of an anti-libel injunction is criminal contempt, punishable by jail time. Failing to take down libelous material in violation of a takedown order may also be civil contempt, which could lead to the threat of jailing until the defendant complies with the order. Even if we're judgment-proof, we aren't jail-proof (unless we're safely anonymous or outside the jurisdiction).

I discuss the mechanics of anti-libel injunctions in much more detail elsewhere, and talk there about what First Amendment protections those injunctions have to contain. For now, though, the point is simple: greater equality of access to speech has meant more speech that is widely distributed, libelous, and said by poor speakers; and that in turn has led to more calls for a remedy that, at bottom, rests on the threat of criminal enforcement.

[D.] Criminal Libel: Survival and Revival

Libels by the judgment-proof have also led to the use of a mechanism that is all about criminal enforcement: criminal libel. Even if criminal libel prosecutions are rare enough that they won't provide general deterrence of Internet speakers at large, they seem likely to yield a prompt takedown of the allegedly libelous speech, and a prompt suspension of such speech during the prosecution. Once an indictment is filed, only rare speakers would boldly continue the same behavior that got them prosecuted.

And criminal libel prosecution can also benefit poor victims of libel, because the state pays the legal costs. The victims may get little financial compensation: restitution appears not to be a common remedy in criminal libel cases — and even if restitution were made available, and were easier to get through the criminal process than through the civil process, you can't get blood from a stone even through a criminal prosecution. But you can get some sense of vindication, and likely removal of the reputation-damaging material.

Criminal libel law is often described as essentially dead. But it is constitutionally permissible if it's properly limited to knowing falsehoods.

Many criminal libel statutes did not survive the Court's libel revolution as well as civil liability has, partly because statutes are less supple than common-law tort rules. Because libel was a common-law tort, state courts could easily preserve a constitutionally narrowed form of civil libel action just by adapting state tort law rules to fit the Court's emerging libel caselaw, and doing so with each new Court decision. But by 1964, the criminal law, including the law of criminal libel, had been codified in most states. The Supreme Court's cases rendered those statutes unconstitutionally overbroad.

And when the statutes were challenged, courts were often inclined to just strike them down rather than to narrow them by essentially adding new limiting language to them. Since 1964, courts in several states have struck down the old statutes, and in most of those states the legislatures did not reenact narrower, constitutionally valid versions. Indeed, in some states, legislatures just repealed the criminal libel statutes altogether. Criminal libel laws are thus indeed less popular now with legislatures than in the past.

But in about a dozen states, the laws remain on the books. And recent years have begun to see something of a revival in criminal libel enforcement, at least in some states. As best I can tell at this point (I'm writing a broader article called Criminal Libel: Survival and Revival in which I hope to canvass this in more detail), there are likely about twenty criminal libel prosecutions per year throughout the country.

Twenty cases a year is not a vast amount. (Libel injunctions, which I mentioned above, are more significant.) But the prosecutions show that some prosecutors do see criminal libel as a valuable tool; and what some prosecutors do now, others can do in the future. Indeed, there is some evidence from Wisconsin that criminal libel prosecutions rose from 1991–99 to 2000–07, the era during which Internet use surged. And most of the prosecutions involve ordinary people lying about each other online — impersonating each other in reputation-damaging ways, accusing each other of child molestation, and more.

Sometimes, the prosecutions or threatened prosecutions do appear to be political abuses. Consider, for instance, the case of the Louisiana sheriff who went after an anonymous online critic who had claimed that the sheriff had improperly given a local businessman a contract.

The sheriff got a search warrant based on the theory that the criticism was criminal libel of the businessman, and managed to identify the critic as a result. But the businessman was himself a local government official, and Louisiana courts had already held the state criminal libel statute unconstitutional as to public officials, or for that matter as to anyone involved in a matter of public concern. The Louisiana Court of Appeals therefore set aside the warrant as "lack[ing] probable cause because the conduct complained of is not a criminally actionable offense" — but only after the critic was identified as a police officer from a neighboring jurisdiction.

It's possible, then, that criminal libel law is unduly chilling, and subject to potential political abuse. Maybe it should be categorically barred as to speech on matters of public concern: punitive damages are barred in public-concern cases, unless "actual malice" is shown — perhaps criminal libel law should be even more severely limited.

Or perhaps criminal libel laws should be invalidated or repealed altogether, for instance because the line between speech on matters of public concern and private concern is too hard to draw, or because we think the legal system already criminalizes too much, and adding even misdemeanor punishments will only exacerbate the problem. But if we do set criminal libel law aside, we have to acknowledge that we're setting aside what might often be the only effective tool for punishing and deterring intentional libels.

[E.] Criminal Libel by Another Name

Indeed, one state — my own California — appears to be reinventing criminal libel law after a decades-long break. In 1976, a California appellate court struck down the California criminal libel statute, in a case involving a publication about the famous actress Angie Dickinson. Ten years later, the California Legislature repealed the statute.

But two recent California Court of Appeal decisions have read an identity theft statute as essentially recriminalizing libel (though with no evidence that the Legislature contemplated this). The statute criminalizes "willfully obtain[ing] personal identifying information . . . of another person" and using it "for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person." "Personal identifying information" includes "any name, address, telephone number" alongside other identifying items (such as Social Security number, bank account number, and the like).

Though the statute is colloquially called the "identity theft statute," California courts have held that the statute isn't limited to behavior generally viewed as "identity theft," such as impersonation, or to financial fraud. The statute, they have held, "contains no requirement that the defendant hold himself out as someone else," nor does it "require an intent to defraud or to cause harm or loss to another."

And courts have held that the "unlawful purpose" could be a purpose to commit a tort, such as libel, and not necessarily a crime.[4] Since nearly all libels would involve the use of at least one piece of "personal identifying information" — the subject's name — nearly all knowing libels are thus criminal under this interpretation. Indeed, two California appellate decisions have expressly upheld criminal convictions for posting libels.

I think the California Court of Appeal has erred in reading the statute so broadly. A step as significant as recriminalizing libel, following express legislative repeal, ought not be lightly taken, especially since such a reading may well not be what the Legislature intended — the requirement of "unlawful purpose" in the criminal statute may easily have been intended to refer to criminal purpose.

Nonetheless, the impulse behind these decisions — the impulse of prosecutors who argued for this theory, and the judges who adopted it — shows the appeal of criminal libel prosecutions, even when a statute has to be stretched for that purpose. The law ought to do something about knowing lies about people, the impulse suggests, and the civil law of libel alone does virtually nothing when the libelers are judgment-proof. That is part of the reaction that I'm aiming to describe.

Modern "criminal harassment" and "cyberstalking" laws are also being adapted to revive aspects of criminal libel law. Traditionally, such laws have banned unwanted speech to a person (such as telephone harassment or in-person approaches). But increasingly they also ban unwanted speech about a person, if it's intended to "harass," "annoy," "alarm," or "embarrass"; and much libelous speech can be said to qualify. Indeed, several state and federal cases have allowed such statutes to be used to criminally punish speech that in earlier decades might have been punished as criminal libel.[5]


[1] Occasionally, plaintiffs will litigate such cases, if they think that they (1) have a great deal at stake, and (2) can persuade even judgment-proof defendants that having a judgment against them is such a hassle that it's better to agree to take down and stop the libels. See, e.g., Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014). But my sense is that this is relatively rare.

[2] Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 983-84 (10th Cir. 2000); Hassell v. Bird, 420 P.3d 776, 785 (Cal. 2018); Kathleen R. v. City of Liverpool, 104 Cal. Rptr. 2d 772, 780 (Ct. App. 2001); Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. Ct. App. 2011); Reit v. Yelp!, Inc., 907 N.Y.S.2d 411, 414 (Sup. Ct. 2010).

[3] See Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73 (2019).

[4] See People v. Bollaert, 203 Cal. Rptr. 3d 814, 825 (Ct. App. 2016); People v. Casco, No. G049375, 2015 WL 2455083, at *6 (Cal. Ct. App. May 22, 2015) (nonprecedential); In re Rolando S., 129 Cal. Rptr. 3d 49, 58 (Ct. App. 2011). A nonprecedential case, Clear v. Superior Court, No. E050414, 2010 WL 2029016, at *1 (Cal. Ct. App. May 24, 2010), had concluded that "There is no authority that the commission of civil tort, such as defamation, constitutes an unlawful purpose." But there is such authority now, and in precedential opinions (In re Rolando S. and Bollaert).

[5] Criminal Complaint, United States v. Thompson, No. 17 MAG 1532 (S.D.N.Y. Mar. 1, 2017) (cyberstalking complaint based on defendant's impersonating the victim and sending threats in her name); Burroughs v. Corey, 92 F. Supp. 3d 1201, 1208-09 (M.D. Fla. 2015) (upholding Florida criminal harassment statute in part because it "prohibits unprotected conduct," such as "defamation"); United States v. Matusiewicz, 84 F. Supp. 3d 363, 371-72 (D. Del. 2015) (allowing criminal cyberstalking prosecution on the grounds that the distressing speech in that case was "defamation"); United States v. Sergentakis, 2015 WL 3763988, at *7-8 (S.D.N.Y. June 15, 2015); United States v. Sayer, 2012 WL 1714746, at *4 (D. Me. May 15, 2012) (likewise); Commonwealth v. Cox, 72 A.3d 719, 721-22 (Pa. Super. Ct. 2013) (upholding harassment conviction for publicly accusing someone of having a sexually transmitted disease, a classic example of libel); Order Imposing Sentence, Commonwealth v. Abrams, No. MJ-3810+NT-0000217-2014, at 1 (Pa. Mag. Ct. Sept. 15, 2014) (sentencing for criminal harassment based on allegedly "slanderous" statements against a business, see Private Criminal Complaint, id. at para. 2 (July 7, 2014)).

NEXT: Today in Supreme Court History: February 17, 1801

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  1. The intersection of criminal libel and prosecutorial discretion has some scary implications, I think you’ll agree: The likelihood that it will only be prosecuted where the government likes the victims, or disapproves of the libeler, but not where the victim is disfavored, or the libeler favored.

    1. We will go from three felonies a day to three felonies a minute.

  2. Then you get into the whole, “the process is the punishment” problem. The government could prosecute criminal libel cases against defendants it expects will be acquitted, confident that the legal costs it can impose will mean that it can penalize protected speech even where acquittal is practically certain.

    Perhaps this could be ameliorated by some kind of requirement that acquitted defendants be made whole by the government. (I tend to think this should be the general rule in ALL prosecutions!) Without such a provision, the 1st amendment implications are pretty terrifying.

    1. I have great reservations about allowing criminal libel actions, but I’ve never been impressed with the argument that “the process is the punishment,” simply because that argument would apply with equal force to all other litigation as well. Innocent people do occasionally get indicted and face ruinous criminal trials; that happened to a client of mine. He was acquitted, and also bankrupted and left permanently unemployable in his field.
      Businesses spend millions of dollars a year to defend themselves from frivolous lawsuits. So unless we are going to padlock the courthouses altogether, I don’t see how to avoid the unfortunate result that some people will be unjustly subjected to wrongful litigation. Nor do I see why a principled exception should be carved out for libel.

      1. It DOES apply with equal force to all other prosecutions. Which is why I’ve long argued that the government should be required to make defendants whole after acquittal. On the same principle behind paying for takings: The cost of government should fall on the population benefiting from it, not on particularly chosen fall guys. No less true for the administration of justice.

        But the threat is particularly bad where the conduct in question consists of the exercise of a civil liberty. Remember Project Veratis and the Planned Parenthood organ marketing video? Under a criminal libel regime, California would have prosecuted them in a heartbeat.

        1. Assume without rehashing the facts that Project Veritas did in fact libel Planned Parenthood. Should PP have been able to sue civilly, or would you ban civil defamation actions too on the same theory?

          I think the real question here is whom do you want to protect. Without defamation being actionable all, there’s nothing to stop me from starting a whisper campaign that you’re a pedophile. Then, after it’s cost you your reputation and your livelihood, should I really be insulated because the process is the punishment? Should the Sandy Hook parents have no recourse against all the lies that have been spread against them by conspiracy theorists? And I have at least as much sympathy for people who truly have been injured by defamation.

          1. His proposal was approximately loser-pays, not banning lawsuits.

          2. Setting aside that I don’t think PP was libeled, as Michael says, I’m advocating something like loser pays, so that unpopular (With the government, in the case of criminal libel.) viewpoints can’t be suppressed by threats of defense costs.

            As a general matter, I don’t think the government should be able to impose costs on defendants it fails to convict. When the conduct being prosecuted is closely related to a civil liberty, such that an acquitted defendant was legally just exercising an explicit constitutional right, the ability to impose costs with failed prosecutions becomes especially egregious.

          3. But what if you actually are a pedophile — a politically-connected pedophile like Jeffery Epstein?

            With a criminal libel law, he’d still be molesting today because the articles that led to his eventual arrest would never have been written.

        2. It’s not Project Veritas you’re thinking of, it’s the Center for Medical Progress.

          And . . . California did prosecute them! Raided their homes and everything. Under AG Kamala, at the behest of her evil PP donors. Not for criminal libel, but for “conspiracy” to “intentionally record confidential communications between themselves and Planned Parenthood employees.” They were prosecuted for basic journalism.

        3. It DOES apply with equal force to all other prosecutions. Which is why I’ve long argued that the government should be required to make defendants whole after acquittal.

          This may not be a terrible idea, but would have little effect. Acquittals, as you probably know, are quite rare. And of course even when a defendant is acquitted on some or most charges, there’s often some charge for which he’s convicted.

          1. Acquittals are rare because the government can credibly threaten to ruin most people with legal expenses unless they agree to plead guilty. Approximately 95% of prosecutions end in plea deals because most people would be bankrupted by going through a trial even if they were acquitted. (And because prosecutors over-charge and allow people to plead down rather than risk ending up convicted of the over-charge.)

            If the innocent knew that their cost of defense would likely be refunded, maybe almost all prosecutions wouldn’t end in plea deals. Maybe the prosecutor would, novel idea, have to prove their case, and as a routine matter.

            1. Acquittals are rare because the government can credibly threaten to ruin most people with legal expenses unless they agree to plead guilty. Approximately 95% of prosecutions end in plea deals because most people would be bankrupted by going through a trial even if they were acquitted.

              No, Brett. If that were the reason, then indigent defendants wouldn’t plead guilty.

  3. BB, but since the government is never spending their own money, why should they care if they have to make the not guilty “whole”?

    Although I have to agree that criminal libel laws would be subject to abuse by government officials, can we point to a law that isn’t? So maybe there should be a cost/benefit analysis, and maybe government officials should be liable when they maliciously prosecute. At the very least some sort of liability might drive them underground where they don’t exchange texts and emails about how they are going to “get” someone.

    1. I’m not concerned about the government caring, I’m concerned about the innocent guy who just had his life ruined.

      1. Good point. I was thinking more along the lines of incentives to reduce the bad behavior.

        1. End all lawyer self dealt immunities. An improper investigation for political purposes, such as those conducted against the greatest President since George Washington, Pres. Donald Trump should be compensated from the assets of the Democrat prosecutors. The taxpayers did not have a part of his job description to abuse his position for a political agenda. These immunities are based on a psychotic delusion, that the sovereign speaks with the voice of God. The lawyer profession is not only the stupidest group of people in the nation, it is the most psychotic, filled with delusional doctrines.

  4. I’m surprised people haven’t challenged the broad interpretation of California’s identity theft statute as unconstitutionally vague.

    Completely agree that only the legislature can pass new criminal laws, and it is the courts’ duty to construe existing laws narrowly.

  5. When it comes to libel one reason to treat it as a criminal matter is that crimes are prosecuted by the government. That means the function difference for Joe Q. Public is that the government will pay the tab for prosecuting the action and not him. The argument that it should only be a civil action is fine, but it ignores the fact that a large percentage of people do not have the means to hire a lawyer to pursue that option.

    Now I’m not fully convinced that means criminal libel and/or slander is a good public policy, but it is something to consider.

    1. Criminal brings in _Gideon v Wainright_ and public defenders.

      1. Case in point. I had a client (non-legal services) who lives in a state where there is an active criminal liable statute which has largely been upheld by the courts there. She was going through a bad divorce and the husband was publishing abject lies about her character on social media. It was hurting her independent contractor business and she really just needed him to stop. Being in the middle of a divorce, she had no money for another lawyer and even though family law gave her an avenue to try to address it the courts wouldn’t schedule a hearing for months.

        One of her friends, a cop, said try filing a police report. She did, but when it made it to the local prosecutor, they declined to pursue it based upon local policy that jurisdiction did not enforce the criminal liable statute.

        So there you have it. A single mom, with no money, having her business killed by content that I don’t think is even a close call. It is only one example, but a clear one demonstrating the intersection of how criminal law is meant to protect the public.

        1. How about this: If you think you’ve been the victim of a crime you get to explain the situation (with your evidence) to the appropriate grand jury, which can either require the prosecutor to prosecute, or ask the court for a special prosecutor. The prosecutor can only refuse prosecution if ethically *required* to refuse (eg, convinced of the accused’s innocence).

  6. The lawyer always sides with the scum, even when penniless. He has eliminated fighting words as a criminal defense. His scum clients are unreachable. Yet, their words do not cause the damage. It is actions on their words that causes the damage. Liability shoulde extend to people acting on the libelous statements, employers, creditors, boyfriends, churches, licensing boards, customers, contractors. Acting on libelous statements should result in liability for damages. It is or should be a standard of practice to ignore people talking shit.

    The lawyer is too stupid to understand that basic cause of the damage from libel. The lawyer is the stupidest person in the nation. Kids in Life Skills class, learning to eat with a spoon, have more common sense and intelligence than Supreme Court Justices. Many lawyers had good native intelligence. It is totally destroyed by passing 1L. This is the most toxic occupation in the nation, ten times more toxic than organized crime. It must be crushed to save our nation.

    1. Making responders to libel liable would also attenuate the damage of cancel culture. All PC is case anyway. Cancel culture is a 100% lawyer effect. End all lawyer self dealth immunities. Make the Supreme Court responsible for its awful judgments. Make the lawyer profession for the $trillion in damage it inflicts on our economy, each year, they are allowed to live.

    2. Daivd, did some big, bad lawyer hurt you?

      1. Lawyers have enriched me. I hurt a lot of lawyers.

        I am just giving back to my country that treated me well.

    3. You should try using fewer of the drugs in the medicine cabinet.

  7. courts were often inclined to just strike them down rather than to narrow them by essentially adding new limiting language to them.

    This last, that judges can modify statutes on their own, annoys the heck out of me. Common law itself has some good features; but letting judges substitute their opinions for a legislature’s compromises and negotiations is wrong. I don’t like severability either for the same reason. If the legislature botches their job, they need to do it again, properly, and not punt to unelected judges. Severability to preserve parts of a law which is too damned big and complicated and gets struck down in its entirety for some stupid mistake or oversight, too bad, find some way to break into into those so-called severable pieces and pass them individually. If some pieces are less popular and won’t pass on their own, then they shouldn’t be combined with more popular parts as baggage.

    1. Remember that severability is how we got Section 230 — most of the CDA was struck down.

      1. §230 was created as a response to ill-conceived judge-made law, was it not?

    2. This!!!

      The bill got passed as a unit, it needs to stand or fall as a unit. There’s no way to know that a particular sub-part which survived due to several ability would have passed if it had been put up as a separate bill all by itself.

      Yes, the legislature should simply have to start over again.

  8. A real example of where a criminal libel law could go bad involves a woman reportedly being considered for US Attorney/Massachusetts. Currently the Suffolk County (i.e Boston) DA, she threatened to have a TV news crew arrested on false charges — on tape!


    The underlying issue is a citizen complaint that she illegally used the police lights & siren on her unmarked police car (which, for some reason, DAs are issued) in a shopping mall road rage incident. Without a criminal libel law (and the _NY Times_ precedent, all she can do is deny it (which she has done) — but with a criminal libel law, she could prosecute….


    1. The fact she could be the next US Attorney for Massachusetts is also scary, but I digress….

      1. Welcome to the Biden show, enjoy the next four years (or until the part of the drama where Harris ascends to the Presidency as previously planned).

        1. I will enjoy the agonies of the American people for their mistake in electing this agent of the tech billionaires, and of the Chinese Communist Party.

    2. One issue ripe for a good investigative report is a good review of police powers in various jurisdictions. I think Johnny Public would be surprised at who in their community is considered to be a “police officer” or “law enforcement officer” under the color of law.

      I’ve seen first hand that in some states where it is difficult to get a permit to carry, there is a time honored tradition of just getting a that is finding a mayor to appoint you a “special officer” which means you can carry just like any other cop. Also when I was in DC (when the gun ban was in full effect) in the 90’s finding a random federal department of whatever to give you a letter saying you needed to carry a firearm as part of your federal job was also a time honored tradition of making your home firearm ownership 100% legal. (And people wonder why there is a disdain for the elite…)

      1. And then there’s the ongoing saga of the Mass State Police.

      2. There is absolutely no reason why anyone who is not a patrol officer or one of a few other very limited positions should get a government-issued firearm.

        Are you an investigator for the IRS, the Department of Agriculture, or the BLM? (No, not that BLM!) And do you consider that your job occasionally puts you into risky positions? Welcome to the party, pal — you should have exactly the same ability to avail yourself of concealed carry, on your own dime, as any other citizen in your jurisdiction, many of whom also have jobs that might occasionally put them into risky positions.

  9. I’ll be skeptical that any of these options are practical remedies until Comet Pizza can civilly sue and/or criminally prosecute people who claim that there’s a vast conspiratorial pedophile ring being run in their basement. The basement that doesn’t exist, no matter how many times Q-tards keep bleating “but but but think of the children!”.

    1. Sounds like you think no reasonable person would believe those claims to be true.

    2. Everything I know about these Q-Anon conspiracy theories comes from people explaining how awful Q-Anon is. I hadn’t even known the name of the accused pizza company until this post mentioned it.

    3. Perhaps, “But the place doesn’t HAVE a basement!” would have been more effective than, “Are you some kind of lunatic?”, or “That sort of thing never happens!“.

      The problem is, I think, confusing denials and refutations. Even where refutation is easy, if you blow it off in favor of denial, that’s what people notice: That you didn’t actually refute the claim.

  10. Interesting read, Prof. Volokh. Looking forward to the article.

    The substance very much reminds me of a pair of NYT articles I read recently. Given how related their content is to this post, I assume you’ve seen them but will paste the links below just in case. The first chronicles lies about various individuals spread online by a single person and the impact of those lies. The speaker is homeless and apparently has a mental illness, making them difficult deter with money damages. The second article, published about a week later, details her arrest for harassments and libel (under Canadian law). “[T]argets included a family that employed her 30 years ago; her mortgage lender; lawyers she had battled in court as well as those who had represented her; and the family members and colleagues of those people.”

    This sort of behavior strikes me as overall outlier and perhaps ripe for some sort of criminal penalty. Then again, I’m not sure what the balance should be when we’re dealing with someone who has a clear mental illness.

  11. Somehow, EV manages to discuss both civil and criminal libel, pro and con, without ever mentioning a salient point. Which is this: where publishers share liability with contributors, private editing prevents before it happens vastly more libels, and vastly more damage, than all the libel judgments handed down by courts. The amount of damages prevented is many times the amount of damages punished after the fact. And that prevention extends effectively even to the thorny problem of judgement-proof would-be libelers—a problem for which EV’s discussion offers nothing in the way of solution.

    EV ignores also the advantage that civil damages for libel offers a method which circumvents pressure for government censorship, or government oversight of publishing. Civil damages lawsuits keep in private hands the content-related controversies which otherwise attract government censorship. Why not at least take notice of that considerable advantage, while you are talking about an upsurge in anti-libel injunctions, and criminal libel prosecutions?

  12. Aside from the common law traditions of history, I see no reason why victims of libel should have legal protection, but victims of privacy invasions don’t.

    Privacy is dead. That’s a bitter pill. I hate it. But I reluctantly admit that it’s true. As technology continue to advance (imagine surveillance cameras costing only one cent per thousand cameras), privacy will continue to decline.

    Libel is dead is analogous.

    1. Aside from the common law traditions of history, I see no reason why victims of libel should have legal protection, but victims of privacy invasions don’t.

      Sounds like that would make you a candidate for holding publishers jointly liable with their contributors. Private editing in advance of publication is exactly the method to deter invasions of privacy. And it would not require outlawing invasions of privacy to get that result. Make libel law once again mean something, and editing to prevent libel will reenable the former practice of competition on the basis of content quality—with editors on their own initiative screening would-be contributions to exclude those so socially damaging that the publication prefers not to stand for them.

      1. And, of course, also excluding truthful statements because they don’t want to risk punishment from the government for publishing them.

        1. Nieporent, get a grip. What law empowers government to punish publication of the truth?

          1. What law empowers government to punish publication of the truth?

            Defamation laws. Do you think that whether something is punishable is based on divine revelation as to its truth value? No; it’s based on a finding by a court, based on evidence presented by the parties. There are some statements that are so obviously correct that any publisher would rush to publish them. There are some statements that are so obviously false that no reasonable publisher would touch them. And there are some statements in the middle, in a gray area, where it’s unclear ex ante what a court would do if they were published. Which means that risk averse publishers will shy away from them, insisting on more evidence that may never arrive before publishing.

            1. I think the evidence of the last four years is that the media are not nearly as reluctant to publish gray area materials as you might think, so long as they have the slightest, “But it could have been true!” fig leaf. We’ve had an absurd run of defamatory news articles based on anonymous sources contradicted by people who were present and putting their names on the line.

              1. Once again: the fact that someone says something on the record does not automatically make it more credible than someone saying it off the record. That might be the case if there were reputational costs to lying — but as we saw in the Trump administration, the opposite is sometimes true. The goal was to fluff Trump, not to get credit for being forthright. Alternative facts were perfectly fine as long as they made Trump look good.

                (Remember when Trump went to the hospital with COVID and Mark Meadows on the record made a statement that he was doing great, and then walked five feet away to a group of reporters and said, “Off the record, he’s much worse than we’re saying”?)

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