Stop Virginia HB 1635, violating the First Amendment by expanding libel plaintiffs’ rights

Jan 23, 2015 Stop Virginia HB 1635, violating the First Amendment by expanding libel plaintiffs’ rights

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. First Amendment to the United States Constitution.

After experiencing clearly unacceptable racist, sexist and other disparaging anonymous verbal attacks on the online Fairfax Underground website, and being unable to uncover all of the anonymous posters’ identities before the running of the legal deadline for doing so in her defamation suit against the posters, fellow Fairfax, Virginia lawyer Andaleeb “Andi” Geloo is urging passage of Virginia state legislation in the form of HB 1635 (the last legislative action was taken January 19, 2015, when the legislature sadly was in session rather than breaking for Martin Luther King Day), to stay the running of the deadline to name libel defendants in a lawsuit. As much as I oppose the wrongful disparagement of Andi, because I believe that all libel laws are an affront to the First Amendment I urge all Virginia voters to urge their legislators to vote against HB 1635.

At first blush, HB 1635 may not sound like much to oppose. However, as I have blogged for years, libel laws/defamation/slander laws are too damaging to First Amendment protection and free expression rights, for chilling legitimate speech, curbing expansion of free expression rights, and being a tool to justify curbing free expression rights. Virginia HB 1635 expands libel plaintiffs’ rights when we need to be going into the opposite direction until libel laws are abolished.

Even some lawyer colleagues who otherwise are in agreement with much of my civil liberties message, are not ready to scrap libel laws, whether because they believe libel laws help prevent severe damage to people’s reputations, are allowed by decades of appellate court jurisprudence, or do not involve government wrongdoing (but of course the government is involved, as libel suits are filed in courts, which are part of the government). I say that allowing libel laws helps to make the First Amendment meaningless.

Some people talk about balancing tests with libel, or say “your rights stop where my rights start”, “bullies should not get away with destroying reputations”, and “with the right of free expression come responsibilities”. Where do tyrants first look to control the populace and expand their tyranny? By punishing people for words that do not serve the tyrants, by limiting information flow, and by scaring people to keep their strongly held views to themselves. Isn’t that why the First Amendment exists and why it is the first amendment rather than the last one to the United States Constitution? If we are going to give full teeth to the First Amendment, we must err on the side of protecting too much speech rather than too little speech, even though the costs of doing so can be high at times, including allowing racist, sexist and defamatory speech.

Let us fight despicable speech with more speech, not by censoring or fining the despicable speech.

Here are more thoughts on the topic:

– Allowing civil libel suits also allows for criminal libel prosecutions, which never should be permitted.

-Although the disparaging online postings about Andi served no benefit to society, online anonymity is important to protect the many instances of truthful online postings, including whistleblowers who otherwise would not disclose the misdeeds of their employers and others.

– Too many people, news organizations and others tone down their legitimate messages, out of fear of the potentially crippling cost and potential damage awards from of lawsuits. It often takes the financial muscle of Oprah Winfrey (who wrongfully got sued by beef industry interests for libel against hamburgers) and the New York Times for people and organizations to have the guts and resources to risk the huge financial investment that can be required to defend a libel lawsuit, let alone to pay a wrongful and sky-high jury verdict.

– Some states in the United States still permit criminal penalties for libel — including one on the books in Virginia — and it does not seem that the U.S. Supreme Court has yet prevented such criminal penalties.

– Too many activists get silenced and muted by groundless and oppressive SLAPP/libel suits, where the suing corporations/organization knows 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 organization. The public loses out when activists who would otherwise serve social justice stay silent for fear of libel suits.

Virginia HB 1635 and all libel laws need to be scrapped.

(January 25, 2015)- It bears pointing out that Fairfax County Circuit Court Judge Robert J. Smith in June 2014 granted a defense motion to quash defamation plaintiff Andi Geloo’s subpoena to discover the identity of a John Doe defendant. In so doing, Judge Smith pointed out that Ms. Geloo “failed to show the circuit court that statements made on by the anonymous communicator(s) are or may be tortious…”

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