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Respond to despicable speech with more speech

Feb 06, 2009 Respond to despicable speech with more speech

Bill of Rights. (From the public domain.)

Recently, a fellow lawyer asked me my motivation for representing libel defendants "who destroy another person’s reputation and peace of mind with malice." I turned my answer into the following blog entry:

– I strongly believe that libel suits violate and are incompatible with the First Amendment. Protectiing the First Amendment always comes at a price, including the real harm caused to those who are victims of intentional lies about them. The public loses out when the First Amendment has no more teeth than toilet paper.

– Too many newspapers are lands of bland, knowing that even if a libel suit is groundless, the financial exposure is too great a business risk and the cost of libel insurance is too high to cover against exposure to paying out of pocket for a substantial part of a huge libel verdict. The reading public suffers for this.

– Too many activists get silenced and muted by groundless and oppressive SLAPP/libel suits, where the suing corporations know that the suit helps neutralize the defendants both through litigation costs and keeping the defendants in court and depositions when they might otherwise be picketing an allegedly rogue corporation. The public loses out when activists who would otherwise serve social justice stay silent for fear of libel suits.

– The beef industry sued Oprah Winfrey for libel for dismissing the safety of eating beef before her television audience, and dragged her through a court battle that she survived and won because she had the money to do so, but which easily could have cowed less well-heeled defendants to settle the case for a huge sum together with an agreement for the defendant to remain silent on the topic of the defendant’s protest forevermore. Oprah’s message needed to get out to the widespread audience that she commands.

– Some states have criminal libel laws, which enable a person’s liberty to be restrained starting pretrial on nothing but probable cause found by the judge. This is another example of the severe injustices caused by libel suits.

– The logic of your asking my motivation to defend even the most heartless libel defendants sounds no less flawed than that of a person who rails against a lawyer for defending a person prosecuted for murder, whether or not the lawyer believes or knows the person to be guilty. Moreover, just as the lawyer who defends a clearly guilty murder defendant can help keep the criminal justice system more just and honest, and can honorably fight the unjust capital punishment system, a libel defense lawyer can help thaw the chill that libel laws present to too many people in exercising their First Amendment rights, and can help rein in the passions of a misguided and vindictive jury that is otherwise inclined to hammer a defendant with an excessive verdict for reasons beyond the jury instructions.

– Sometimes reputation and peace of mind are even destroyed by opinions that contain no mis-statement of facts. Opinions clearly should not be actionable in a libel lawsuit.

Consequently, I will be honored to defend any libel defendant who pays my fee. Jon Katz

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